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Thursday, May 30, 2013

Yes, blame it on all and sundry but not your own system!

Resistance to change or rigidity of thought? Can’t say. Can’t fathom. And it is tiring.

The forces can opt to keep their eyes closed, but psychiatric ailments and related incidents such as suicides and fratricides are on the rise and of course now in the public eye.

With growing involvement of the security forces in operations all over, not just the defence services but the Central Armed Police Forces (CAPFs) are also facing a steady rise in psychiatric and behavioural disorders.

But what is worth condemning and also a cause of worry is the casual dismissal of such incidents on the grounds of being ‘domestic issues’ and bizarre pretexts such as the growing use of mobile phones and improved lines of communication.

Let us tackle the ‘domestic issues’ front first. When a person is invalided out or released in a low medical category on account of a psychiatric disorder, military medical boards are quick to term such disabilities as ‘constitutional disorders’ and as emanating from domestic issues and hence ‘neither attributable to, nor aggravated by military service’ thereby denying the person and his family all service benefits including pension.

Now please tell me, even if a ‘domestic issue’ is taken as the source of a disability or disorder, can it not have a link with military service? Well, in most of the cases it would. Most of the year, a member of a security force remains away from his (or her) family in a regimented environment. Domestic issues such as studies of children, safety of family, property disputes, administrative issues or even minor irritants etc are bound to aggravate the psychiatric condition of a person for the simple reason that being away from the family he feels helpless, and coupled with this is the very true fact of an insensitive civil administration and the dipping scale of respect for the profession of arms.

Compare with him a person with ‘domestic issues’ who is a civil employee who stays with his family and is there for them every single minute of their lives. Domestic issues would not affect a civilian employee living with his family but surely would affect a member of a security force who is not there with them, who is not there for them. An encroachment of a person’s house back in his village is definitely a ‘domestic issue’ but his not being there to effectively sort it out is definitely not a ‘domestic issue’ and is linked with military service. The non-issuance of a domicile certificate for a jawan’s child for purposes of admission in an educational institution definitely is a personal problem, but his not being able to resolve it since he is ‘stateless’ or since he is unable to pursue his remedies properly is definitely related to the rigours of military service and its exigencies. The internal mechanism to cope up with such situations would unquestionably be more fickle in the case of members of the uniformed community. So how is it that domestic issues would not have a role to play in aggravating psychiatric or behavioural disorders? If life in the forces cannot be made stress-free, the least that the medical establishment can do is to make it a rule, rather than an exception, to favourably view such disorders for declaration of ‘aggravation due to military service’ in order to at least grant benefits to the person if he is released from service in such a condition. But no, our eyes are closed and so is our mind! I would again pray that one day the office of the Director General Armed Forces Medical Services wakes up and embraces medical science rather than outdated practices and principles of mathematics. 

Senior officers also regularly blame mobile phones for many ills facing the Indian military. Now tell me, do we want our troops to live in the past without any lines of communication? Do we want our youth joining the services to remain backward while their counterparts continue to enjoy the joys of technology? Would we be able to attract the correct talent if we consider improved lines of communication a bane? The answer would be in the negative. Does someone even realise that perhaps mobile telephony may actually be reducing stress levels of troops by helping them keep in touch with their families and reducing ancillary worries? No please, ignorance is not bliss! Not in this time and age. A simple reassuring call that things are alright back home could soothe nerves and not the opposite as is being widely believed. Cuts both ways but the benefits of mobile telephones outweigh the shortcomings. Instead of working on a regressive thought-process, the leadership may well be advised to find ways and means within the four corners of the times we live in. To top it all, there are no clinical psychologists in situations where they are required. Even the number of psychiatrists is pretty low. To further add to the injury,  the system is anti-disabled from all sides with the main thrust of litigation of the defence services being against their own disabled soldiers.

While most armies of democracies move towards recognising and accepting the problem of rising stress levels and thereby addressing it, we on the other hand have our eyes shut and continue to proclaim that fauj is one of most stress free occupations in the world. Keep sleeping.  

 Yes, blame it everywhere but on your own house!

Monday, May 20, 2013

Gauhati High Court endorses Limited Competitive Examination for the IPS, sets aside the order of the Central Administrative Tribunal

The Limited Competitive Examination (LCE) for induction into the Indian Police Service (IPS) was stayed by the Central Administrative Tribunal last year in a Petition essentially filed by officers of the State Police Services.

The CAT had later allowed the petition and quashed the notification of the examination as well as the amendment of the Rules incorporating LCE as one of the entries into the IPS.

The verdict of the CAT was then challenged before the Hon’ble Gauhati High Court by the Central Govt and also by some officers who had applied for the LCE.

The High Court has now set aside the decision of the CAT and has upheld the validity of amendment of the rules through which LCE has been introduced.

The entire judgement of the High Court (10 MB) can be downloaded by clicking here

Sunday, May 12, 2013


Regular readers of the blog would be aware of Mr Eugene R Fidell whose guest post was published on the blog earlier on 16 March 2013. Besides being the President Emeritus of the US National Institute of Military Justice, Mr Fidell was magnanimous in his support towards my idea of the Forces Law Gazette

Here is another topical write-up by him originally published earlier this month on ‘Balkinization’ which again is a sounding-board not just for American military law, but other nations as well.


   Secretary of Defense Hagel’s March 7, 2013 letter to Senator Boxer advised that he had ordered a review to determine whether the requirements of the Uniform Code of Military Justice were followed in connection with the widely-noted Convening Authority (CA) action under Article 60 in United States v. Wilkerson and whether that case suggests a need for changes in either the UCMJ or the services’ implementation of it. He noted that “this case does raise a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial, particularly prior to the robust appellate process made available by the UCMJ” (emphasis added). On April 8, 2013 he recommended that Congress modify Article 60.

Congress will decide whether the CA’s powers should be reduced or reallocated, but it should do so only with a correct understanding of the appellate process, since changes are needed there as well. The critical point is that the current process is not “robust.”

First, for a court-martial to qualify for review by a service Court of Criminal Appeals (CCA) under Article 66, the sentence as approved by the CA must include the death penalty, confinement for a year or more, or a punitive discharge (i.e., dismissal for officers and service academy cadets and midshipmen, bad-conduct or dishonorable discharge for enlisted personnel). Because of the jurisdictional threshold, many special and general courts-martial are not subject to review by the military appellate courts. Instead, the only available direct review is within the office of the Judge Advocate General under Article 69. That review is conducted without judges, appellate counsel, full briefing or oral argument.

A few numbers demonstrate the limits. In Fiscal Year 2012, 368 (21.3%) of the 1727 special and general courts-martial received by the TJAGs were eligible only for the internal administrative review. A handful of these Article 69 cases may have been referred to the CCAs as a matter of JAG discretion but, once there, they are subject to narrower review than Article 66 cases. CompareArticle 66(c) (power to weigh evidence, judge credibility of witnesses, and determine controverted questions of fact) with Article 69(e) (CCA may take action “only with respect to matters of law”).

Do not suppose that courts-martial that don’t meet the jurisdictional threshold for CCA review are unimportant. Many can have significant effects on the accused, including lifelong stigmatization as a federal offender and, in some cases, sex offender registration, loss of the right to possess firearms, deportation, and other collateral consequences.

Second, neither the Constitution nor the UCMJ affords CCA judges the protection of fixed terms of office (much less the life tenure enjoyed by Article III judges). See Weiss v. United States, 510 U.S. 163 (1994). By regulation, Army and Coast Guard CCA judges have three-year terms; those on the Navy-Marine Corps and Air Force CCAs remain without fixed terms of any duration. At-will appellate judges such as these are unheard of in any other part of the American legal system.

Third, cases that come within CCA jurisdiction often meet with significant, and in some instances, extreme delays. A recent case took the Air Force CCA 1024 days from docketing to decision.

Fourth, CCA decisions are in turn reviewable by the United States Court of Appeals for the Armed Forces (CAAF). Under Article 67(c), CAAF may “take action only with respect to matters of law” and does not review sentences for reasonableness. It automatically reviews the few military capital cases, and in noncapital cases grants discretionary review “on good cause shown.” The JAGs, however, need not show good cause to obtain CAAF review: Article 67(a)(2) gives them the power simply to refer (or certify) a case to CAAF. In Fiscal Year 2012 eight cases were certified. Since the JAGs rarely certify cases for the benefit of the accused, this aspect of the UCMJ appellate process is asymmetric.

Fifth, only a limited subset of the cases that reach CAAF ever become eligible for review by the Supreme Court of the United States. Under 28 U.S.C. § 1259, certiorari is available to review CAAF’s capital cases, those certified by a JAG, those in which CAAF grants discretionary review, and others – brought by extraordinary writ -- in which it grants relief. Article 67a(a) adds that the Supreme Court “may not review by writ of certiorari under this section any action of [CAAF] in refusing to grant a petition for review.” Thus, except for the rare capital cases and the handful certified by the TJAGs, a party can petition for certiorari only if CAAF has in its discretion granted review or an extraordinary writ. In Fiscal Year 2012, CAAF granted 202 petitions for review and two petitions for extraordinary writ or writ-appeal petitions and denied 616 petitions and 27 writs, rendering 76% of the total statutorily ineligible for Supreme Court review.

Sixth, the cumulative result of the jurisdictional threshold for CCA review and CAAF’s ability to bar the door to Supreme Court review is that roughly 90% of special and general courts-martial never become eligible for Supreme Court review. In contrast, all federal and state defendants and even persons convicted by military commission have a right to petition the Supreme Court for review of their cases.

Seventh, in the minority of CAAF cases that are eligible for Supreme Court review, the Solicitor General takes the position (despite contrary legislative history) that the Supreme Court may only decide “issues” as to which CAAF has granted review. On this view, an ungranted issue in a granted case remains outside the Supreme Court’s jurisdiction. The Supreme Court has repeatedly declined to address this question, having never granted certiorari on an ungranted issue.

Finally, the military judicial process does not include a statutory post-conviction fact-finding mechanism like that provided for civilian federal criminal cases in 28 U.S.C. § 2255. Instead, it relies on the so-called DuBay hearing, a judicially-manufactured substitute that seeks to compensate for process failures in the existing system, which lacks a standing trial court. These limited evidentiary hearings are ordered when, for example, a claim of ineffective assistance of counsel arises. Although they avoid “the unsatisfactory alternative of settling [an] issue on the basis of ex parte affidavits, amidst a barrage of claims and counterclaims,” United States v. DuBay, 37 C.M.R. 411, 413 (1967), they remain a makeshift appendage to the military appellate process.

Appellate review under the UCMJ is not “robust.”

Thursday, May 9, 2013

Progressive guidelines on suo moto disclosure under the RTI Act

One of the most progressive sections of the RTI Act is Section 4(2), which provides that public authorities should endeavour to provide as much information as possible suo moto including through internet so that there is minimum resort to the Act for seeking information.

As experience had shown, the above provision was not properly executed by most public authorities as a result of which the public was forced to approach Public Information Officers even for sundry information which could easily be placed on a public platform by various public agencies.

To rationalize this problem, the govt had constituted a task-force and now has issued guidelines for implementation of the recommendations of the said task-force.

The following aspects shall now be placed in public domain, including on websites, by public authorities:-

A. Information related to procurement

B.  Public Private Partnerships

C. Transfer policies and transfer orders

D. RTI Applications received, their responses and Appeals thereon alongwith a proper search facility

E.  Information regarding CAG and PAC

F. Citizens Charter

G. Discretionary and non-discretionary grants

H. Foreign tours of PM and other Ministers

The complete Office Memorandum issued on the subject by the DoPT can be accessed by clicking here.