Last time I checked, you were sleeping - Prince (Dreamer, 2009)
The depositions made before the Parliamentary Committee on Defence, which, besides other issues, was deliberating upon providing the powers of civil contempt to the Armed Forces Tribunal (AFT) to ensure compliance of its orders, have brought to fore and on record what really the Department of Ex-Servicemen Welfare (DESW) thinks about the majesty of judicial institutions in this country, and how even the Defence Services themselves do not realize what is and what is not in their long term benefit. The deliberations have also brought again to light as to how the DESW projects itself as the greatest saviour of former defence personnel when the reality is just the opposite and is known to every single veteran in this nation.
The statements of the Secretary of the Department of Ex-Servicemen Welfare (DESW) before the Parliamentary committee have not only been crude but downright condemnable, in a complaining tone and bordering on being contemptuous. An attempt has been made to kill judicial initiative. The saving grace was that the Defence Secretary himself opposed the thought process of the DESW and so did the MoD as a whole. Even the Secretary, Ministry of Law and Justice has fully supported the viewpoint of the Defence Secretary, veterans and ex-servicemen organizations.
The report of the Parliamentary Committee was submitted this month and can be downloaded by clicking here.
My observations on the points raised by the DESW and other issues are in the following paragraphs.
Unethical and contemptuous statements by the DESW.
Paragraphs 3.7 and 3.8:
Statement of Secretary DESW: Here, the Secretary DESW makes the absurd statement that Contempt Powers are not required by the AFT since both the AFT and the DESW work for the betterment of ex-servicemen and such powers are only required when there is a dispute between private parties. The Secretary also states that there is harmony between the DESW and the AFT.
Reality: It is common knowledge that all cases before the AFT are between serving and retired personnel VERSUS the Union of India represented by the respective Secretaries. Proceedings before the AFT are judicial proceedings instituted by affected individuals against the Govt, and the AFT also is supposed to pass orders against the Govt, then how is that the DESW and the AFT are working in harmony? By this logic, no Court or Tribunal in India should have powers of contempt when it comes to passing orders against the govt! the biggest joke also is about the DESW working towards the betterment of ex-servicemen, if that be so, then why at all is there massive litigation pending against the DESW in Courts all over the nation? The Secretary DESW also seems to give an impression as if the AFT is an arm of the govt such as some public grievance office in an organization.
Paragraphs 3.9 and 3.10:
Statement of Secretary DESW: Here Secretary DESW states that by and large decisions are implemented unless the decisions are against govt policy and that either party is free to implement or if possible to go in for appeal. The Secretary further states that there is a conflict of interest related to Administrative Members sitting on Tribunals since they may also be affected by decisions in matters involving pension.
Reality: The Secretary hence genuinely believes that parties have the freedom or choice to implement decisions or otherwise. Mr Secretary, these are judicial verdicts and are to be implemented through your nose, you do not have the freedom to not implement. Either you implement or obtain a stay on appeal, there is no third way out, so forget about ‘freedom of implementation’. Secondly, all courts and Tribunals are supposed to examine reasonableness of Govt policy and no authority can state that it would not implement a decision if it is against govt policy. If govt policy is so sacred then why are Courts and Tribunals required? Only those individuals are supposed to approach Courts and tribunals who are dissatisfied with policy. Thirdly the statement of conflict of interest is crass to say the least. It is commonly known that Judges of Courts and Members of Tribunals recuse themselves if they are affected by an issue they are examining. And is the Secretary suggesting that AFT should not touch any pensionary matter since Administrative Members are all pensioners? Well if this is the logic to be followed then decisions on pensions being passed since 1985 by Central Administrative Tribunal or decisions regarding service conditions or pensions of the judiciary being rendered by HCs and the SC since times immemorial should be declared null and void? Totally absurd.
Statement of Secretary DESW: The Secretary quotes some out of context judgement of the Chennai Bench of the AFT and states that Tribunals should avoid impinging upon policy matters.
Reality: A judgement of the Chennai Bench stating that it could not adjudicate on policy matters has not been accepted by the Madras High Court which had remanded back the matter to the AFT for adjudication. Even otherwise, facts of each case are unique. And it is totally unethical for the Secretary DESW to state before the Parliamentary Committee that Tribunals should not declare law on policy matters. The Secretary DESW is nobody to interfere in judicial functioning or to command or demand what a judicial body should or should not do. The Secretary DESW also seems to be unaware of the law of the land. In L Chandrakumar’s case, a Constitutional Bench of the Supreme Court has held that not just policy but Tribunals can also quash statutory rules. The power of the AFT to quash policies of the MoD also came into question in Union of India Vs AK Bhutani wherein the MoD raised the legal point whether AFT could quash its policy, the Supreme Court upheld the order of the AFT wherein the policy was quashed.
Statement of Secretary DESW: Here the Secretary DESW comments on issue of broad banding of disability element of disabled soldiers where the SC and various benches of AFT have already ruled in favour of disabled soldiers. The Secretary brazenly and unethically discusses the merits of an issue which have been and are being adjudicated by judicial bodies. He also states contemptuously that disregard to govt policy is not a routine but limited to one or two benches only.
Reality: The Secretary DESW has no right to comment upon a judicial issue or judicial pronouncement. This is downright contemptuous. The Secretary has also shamelessly stated that one or two benches (most probably referring to the Principal and Chandigarh Benches) are disregarding policy. Mr Secretary, why are judicial bodies required if govt policy is to be always respected? And what right does this man have to comment on judicial functioning, this is total interference in judicial operation and amounts to criminal contempt and lowering the majesty of judiciary in this country. Also the decision on the issue of broad banding at the time remained pending with the Raksha Mantri who had sought the opinion of the Solicitor General, hence the statement of the Secretary clearly shows that the DESW has not only pre-judged the issue and jumped the gun but also managed to hoodwink the entire length and breadth of the officialdom on the subject.
Self-defeating stand of the three Services.
Also it can be seen from Paragraphs 3.13 to 3.19 that all three services have opposed conferring of powers of civil contempt to AFT on the pretext that this would cause operational disruptions in the sense that officers posted in operational areas would be frequently summoned by the AFT. It is also important to point out that all official and non-official deposers have supported the grant of powers of civil contempt, except the three services.
Unfortunately, the Defence Services have not realized that the senior officers who have made or prepared the statement or have been fed this incongruity have not fully understood the scope of civil contempt. They have also not fathomed that Members of the Bench who have also been former High Court judges or senior retired military officers are well aware of the four corners within which they have to function. Only those individuals should be wary of contempt who willfully disobey directions of the Court. Also, it is a known fact that contempt proceedings are never launched against officers posted in operational areas and in almost all cases are instituted against the Defence Secretary or in rare cases against the Service Chiefs or some appointments of the Services HQ. The Services are not holy cows who can stand distinguished from others as far as the applicability of law of the land is concerned. Senior officers who are convinced that AFT should not be granted contempt powers should understand that historically the High Courts were performing the same functions that the Benches of AFT are performing today, so what has changed? When HCs had powers of civil contempt while performing the same functions and it did not impinge upon the operational effectiveness, then how would the grant of same powers to AFT hamper the operational readiness now? If CAT has powers of civil contempt, how can AFT be treated differently? If a senior officer files a case for promotion or concerning his ACR or pension after retirement and a favourable decision is rendered, and it is not implemented by the MoD, would he or she then repeat the same statement that he may have rattled off before this committee? The answer would be in the negative. With all due respect, that is why I say that the services do not have the expertise to understand what is good and what is not good for them and the long term implications of such a bizarre stand. In other words, the Services themselves would be the greatest losers if their view is accepted.
The saving grace.
The Ministry of Defence (as a whole, separately from DESW) thankfully and gracefully projected to the committee the desirability of requirement of civil contempt powers. The MoD also emphasized that even the said statement had been made before the Supreme Court on the opinion of the Solicitor General. It was also brought out that even the Ministry of Law and Justice approved the same. The same becomes clear from Paragraphs 3.28 to 3.33.
The stand of the Defence Secretary requires full appreciation in this regard, wherein totally opposed to the stand of the Secretary DESW, he stated that orders have to be implemented without fail or an appeal is to be filed. There was full appreciation of the situation, the majesty of law, separation of powers as enshrined in the Constitution and the Right to Constitutional remedies conferred by the Constitution, on part of the Defence Secretary.
The following statement of the Defence Secretary sums the very pertinent and admirable views of the Ministry:-
“…The AFT has a utility. Thirdly, challenging the authority of any authority is a fundamental right of every individual, whether he is in service or retired. We have to provide a reasonable opportunity to him and an institution where he can go and file his grievance. Coming to the compliance of the order, as I said, it is our earnest effort that we must respect the order of the AFT. As I said, it is equivalent, in terms of status, to the high courts. Therefore, we do that always. But there may be cases where we have difference of interpretation. The Government may not agree or we feel that there is a scope for appeal, in that case, we go to appeal in Supreme Court or file writ in High Court. It is an institution which has a utility and we support that and that is why we have come for this amendment."
Taking AFT out of the purview of MoD.
One of the additional points as brought out by almost all witnesses was that the control of the AFT should not remain with the MoD. This has been agreed upon by the Committee and is also in line with the decisions of the Supreme Court in L Chandrakumar and R Gandhi’s cases and of the Punjab & Haryana High Court in Navdeep Singh Vs Union of India.
On the same subject, the keenness of the MoD to hold on to the reins of the Tribunal also came to fore through this statement of the Law and Justice Ministry:-
4.6 Another representative of the Ministry of Law and Justice apprised the Committee:
"I have seen the files that the Ministry of Defence is opposing the move to leave the control of AFT. They do not want to leave the control. So far as filling of appeal is concerned, I think against almost each and every matter the appeals are filed".
The Committee however has taken the middle path and while recommending powers of civil contempt, has stated that serving military officers should not be made to appear before the AFT for civil contempt, and powers of civil contempt should be granted only qua officers of MoD, civil organizations and retired defence personnel.
In my opinion, this is not only discriminatory but also liable to be stuck down if challenged on being accepted as recommended by the Committee. In any case the half hearted recommendation is a good first step which should further stabilize with the march of law. In fact, the only three stake-holders in the issue were the Ministry of Defence, Ministry of Law and Justice and Ex-Servicemen organizations/private witnesses all of whom have displayed utmost maturity on the subject. Needless weightage has been granted to the views of the Secretary DESW who even ethically holds no brief to go against the MoD as a whole.