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Saturday, June 29, 2013

Fairness: hit, bludgeoned, buried!

This is yet another saga of misuse of the process of law, lies, deceit and treachery. And bearing the brunt are the people who need sensitivity the most- our Jawans.

This blogpost relates to the wrongdoing of the Ministry of Defence towards Havildars who are granted the Honorary rank of Naib Subedar after retirement, dangerously playing around with the much cherished judicial system by lower level bureaucrats, and how elements in the military set-up have become tools of such treacherous behaviour, needless to say, without moral courage and without any application of mind.

As most would know, Havildars granted the Honorary rank of Naib Subedar after retirement, were, till 2006, paid only an additional Rs 100/- along with the pension for the rank of Havildar.

The 6th Central Pay Commission changed this and recommended that Honorary Naib Subedars may also be paid a pension of a regular Naib Subedar.

So far so good. The recommendation was accepted and a Govt letter was issued in 2009 authorising the pension of a regular Naib Subedar to Honorary Naib Subedars. The letter did NOT contain any cut-off stipulation of non-applicability of the new dispensation only to post-2006 retirees but simply stated that the same would be applicable with effect from 01 Jan 2006, meaning thereby that the new pension rates shall be released to all retirees from this date.

While releasing the pensions however, the Govt (egged on by the office of the CGDA) interpreted the letter to mean that it would only apply to post-2006 retirees and not to those who retired prior to that date.

This was challenged before the Armed Forces Tribunal (Virender Singh Vs Union of India) and the Tribunal ruled that the letter contained no such prohibitory stipulation and that such an interpretation would result in total discrimination wherein pre-2006 retirees would be paid pension of a Havildar while post-2006 retirees of the same rank would be paid the pension of a Naib Subedar. Even otherwise, whenever the recommendations of a fresh pay commission are implemented, the pensions are readjusted based on the fresh pay-scales introduced for ranks after the implementation on the principle of modified parity. The sadistic and illegal interpretation was hence set-aside by the AFT leading to much succour to affected pensioners.

The Department of Ex-Servicemen Welfare (DESW) of the Ministry of Defence, however, was not willing to see justice prevail and promptly filed a Civil Appeal before the Supreme Court harping that there was a cut-off date in the letter and it was a valid form of classification. The Supreme Court was however pleased to dismiss the appeal filed by the MoD (Union of India Vs Virender Singh) in December 2010 thereby endorsing the decision of the AFT and settling the issue once and for all.

But as we all know, even endorsement by the Supreme Court is never enough since MoD’s policies are supposedly sacred beyond even the highest Court of the land. The MoD continued to challenge similar orders by the AFT before the SC on the same issue, not giving up on its tirade against poor veterans.

In one of such cases (Union of India Vs Sohan Lal Bawa), the Department of Ex-Servicemen welfare made the then Solicitor General record a misleading statement before the Court that the said benefit was only extended to those Havildars who were granted the Honorary rank of Naib Subedar before retirement and may not be used as a precedent for other ranks. What was probably meant by the Solicitor General was that cases of other Honorary ranks (such as Subedars granted the Honorary rank of Subedar Major) should not be dealt with by using the instant case as a judicial precedent and that they may be adjudicated separately on their own merits. Great Show! but the catch is that unlike some other Honorary ranks (such as Honorary Lieutenants and Honorary Captains) the Honorary rank of Naib Subedar is ALWAYS granted after retirement and not before retirement. As has been divulged earlier on this blog, the Army HQ protested in writing about this misleading statement time and again requesting for rectification, and so did some ex-servicemen organisations.  However, no action was taken by the lower staff of DESW. When questioned under the RTI Act as to who had briefed the Solicitor General into making the said incorrect statement and whether the Army HQ or any other organisation had taken up the case for rectification, one Under Secretary of the DESW, falsely replied that the department had not briefed the Solicitor General into making the statement before the SC and that the Army HQ or any other organisation had not taken up the issue with the DESW regarding the incorrect statement made before SC for correction.

The wrong statement did not make much of a difference legally or judicially speaking since in the same order the Supreme Court had also mentioned and reiterated its earlier decision in the case of Union of India Vs Virender Singh which was in fact the main case on the subject and which endorsed the setting aside of the discrimination between pre and post 2006 retirees of the rank of Honorary Naib Subedar.

In any case, even though it did not make a material difference, the Army HQ insisted with the MoD that the Supreme Court be informed of the mistake and requested the MoD to move an application for correction/modification of the error in the wrong statement made by the Solicitor General so as to eliminate confusion.

Meanwhile, the Chandigarh Bench of the AFT too clarified the issue again by passing a detailed order (Raghubir Singh Vs UOI) in which it was thoroughly explained that the rank of Honorary Naib Subedar is only granted after retirement and that the scripting error in the Supreme Court’s judgement did not make any legal or judicial difference and did not lay down any ratio to that effect.

The original file however kept oscillating between various agencies and ultimately rather than moving an application for correction/modification of the error, the MoD moved a Review Petition again opening up the same issue of pre and post-2006 retirees on merits while faintly and vaguely mentioning the error also. Rather than seeking correction of the error, in effect, the Review Application was moved to undo what the Supreme Court and the AFT had granted to pre-2006 retirees stating again that the discrimination was a valid form of classification. However, the said Review Petition moved by the MoD was dismissed and the judgement in Virender Singh’s case was reiterated by the Supreme Court while dismissing the same, and of course, Virender Singh’s decision provided that pre and post-2006 retirees could not be treated with discrimination.

In any fair system, the above should have resulted in closure of multiple rounds of litigation in the interest of justice and equity.

But then, we do not live in a fair world. Yes we don’t. Rather than accepting defeat, the MoD now wrote to the Army HQ that since the Supreme Court had dismissed the Review Application, further reviews needed to be filed in all other (thousands of) cases and that pre-2006 retired Honorary Naib Subedars should not be paid the said benefit and that the benefit should only be paid to those Honorary Naib Subedars who have been granted the Honorary rank prior to retirement (there is none since there is no such rule of granting the rank before retirement). The greatest tragedy of the entire story is that the MoD was now trying to take benefit of the dismissal of its own Review Petition in which it had prayed that pre-2006 retirees were not to be paid the said pension. In other words, it was the application of the MoD that had been dismissed and now the MoD itself was trying to take benefit of a decision that had, on the contrary, gone against the MoD!!!

But there is an even greater tragedy than the above. The Army HQ without even perusing what had been filed by the MoD in the form of a Review Petition informed the Record Offices to file review applications in all similar cases and the Records Offices have further started writing to affected retirees whose cases have been allowed by various benches of AFT that the Army HQ has informed them that the Supreme Court has ruled in the Review Petition that pre-2006 Honorary Naib Subedars are not eligible for pension of Naib Subedar.

Now now now. What is the Army HQ doing? Circulating instructions that are not only false, faulty and incorrect but also contemptuous!

The above statement by the Records Offices based on inputs by the Army HQ which has further been guided by the MoD is downright disdainful because of the following reasons:

A.  The SC has nowhere held or stated that pre-2006 Honorary Naib Subedars are not eligible for pension of Naib Subedar. It has in fact held the opposite.

B.   The SC has reiterated the earlier decision rendered in Virender Singh’s case in the Review Petition which on the contrary provides that pre-2006 Honorary Naib Subedars are to be provided the pensionary benefits of Niab Subedars.

C.  The Review Petition was filed by the MoD on the pretext that pre-2006 Honorary Naib Subedars should not be entitled the benefits as made available to post-2006 Honorary Naib Sudedars and the said Review Petition stands dismissed, so how on earth can the MoD take benefit of the same?

D.  The AFT, in a detailed decision on the subject has already clarified that entire legal position including the scripting error in the earlier SC decision based on wrong factual inputs and the dismissal of the Review Petition reiterates the said legal position which does not change in any manner.

E.   How can Records Offices or the Army HQ write to affected retirees that they would not implement the judgements of the AFT and by quoting SC orders which do not even exist? Are we living in a democracy or a banana republic wherein executive authorities simply state that they would not implement judicial orders that too without obtaining a stay over the said orders or without getting them overturned by a higher judicial forum?

F.  Even otherwise, apart from the judgement, it is commonly known that whenever recommendations of a pay commission are implemented, the pensions of pre-pay commission retirees are calculated based on the new scales introduced after the fresh pay commission, and this is already provided by pre-existing govt orders (modified parity). In other words, once Honorary Naib Subedars had been granted the pay-scale of a regular Naib Subedar after the 6th CPC, the pensions of pre-6th CPC Honorary Naib Subedars were automatically to be based on the scale now introduced for Honorary Naib Subedars, that is, the scale of a regular Naib Subedar but the MoD wants pensions of pre-2006 Honorary Naib Subedars to be based on the scale of a Havildar while those of post-2006 retirees of the same rank based on the scale of a regular Naib Subedar. Can we have retirees of the same rank drawing pensions based on a lower rank just on the basis of the retirement date? When it does not happen for any other rank/grade in any govt service, how can it be allowed to continue for Honorary Naib Subedars?

The above is a small example of how the system treats the lower strata of the defence services. No, in fact the treatment is non-discriminatory in the sense that all ranks, high or low, are treated alike- like dirt. While our men and women in uniform go about protecting both the insides and outsides of our borders and rendering stellar service in natural calamities, this is what they get in return.

Is there anyone applying mind over what's happening? Are people sitting in Headquarters to parrot what some clerk in the MoD wants them to believe? Is there anyone doing work passionately? Is there someone reading up? Is there someone opening the files? 

Who would cry for the soldier?

Monday, June 17, 2013

Oped / detailed analysis on the latest developments in the ‘rank pay’ case

Readers may like to access my Oped published at www.StratPost.com on the latest developments in the rank pay case whereby the issue has now been referred by the Defence Minister to the office of the Attorney General for advice.

Thank You.

Friday, June 14, 2013

Reform of Indian Military Justice : Eugene R Fidell (From StratPost)

Mr Eugene R Fidell, President Emeritus of the US National Institute of Military Justice (NIMJ), whose articles are regularly featured on this blog, touches upon aspects of the Indian Military Justice system in this insightful opinion published by STRATPOST.

For the uninitiated, StratPost is a leading source of information for South Asian Defence and Strategic Affairs, and can be accessed at www.stratpost.com


Eugene R Fidell

Even from afar, it is easy to see that Indian military justice is entering a new phase. What are the pertinent facts, and where should the path lead?

The most salient fact has two aspects. On the one hand, Indian military justice – the body of criminal and disciplinary law that seeks to ensure good order and discipline and thereby contribute to national security, has been remarkably stable. This is good because it means that Indian military, air and naval personnel, both subordinates and officers up and down the chain of command, will know the rules of the road and what is expected of them. A less desirable aspect of stability is that sensible ideas that reflect experience both in India and elsewhere may be overlooked or, worse yet, encounter resistance.

That there has been significant change cannot be denied. Of particular note is the creation of the Armed Forces Tribunal (AFT). It took decades from the time the Supreme Court recommended creation of some kind of an appellate court for military verdicts and the time legislation was enacted in 2007. The AFT has already made its mark and one must think the Ministry of Defense and armed forces have taken due note of its existence and, more importantly, its work product. Time and again the AFT has handed down decisions overturning personnel actions and occasionally courts-martial for reasons that seem so perfectly obvious that one cannot help but wonder why the matter was not adjusted before it reached the tribunal.

The AFT has only been in operation for a few years, so its jurisprudence is far from fully fleshed out. Still, some suggestions can be made that could foster increased public confidence in the administration of military justice.

First, attention could usefully be paid to whether the AFT would benefit from greater guarantees of independence. Countries around the world have adopted a remarkable variety of frameworks for providing appellate review of military cases. Some rely on a purpose-built court, staffed by civilian judges; others assign civilian judges of the regular higher courts to the military court by rotation as part of their judicial duties; yet others have entirely military appellate courts; some have a mixture of military and civilian judges, with some of the military judges being lawyers, some retirees, and every combination.

Questions have recently been raised about the arrangements governing the AFT. Should it be constituted as it presently is, with a blend of civilian jurists who sit full-time and retired senior military officers, or would a different staffing concept be an improvement? It can be argued that since the function performed is a legal one, only those with legal training should sit, and that the provision of any necessary special background information on the military context of a case is the job not of the judges but of the attorneys who appear before them.

Caseload is another issue. Indian courts have long been clogged with challenges to military personnel and military justice cases. Given that, and the fact that full justice is tremendously hard to achieve long years after the underlying circumstances, it is surprising that not all of the AFT judgeships have been filled even now.

Equally concerning is the fact that the defense ministry is responsible for filling the vacancies. A recent decision seems to require that the AFT be moved over to the Ministry of Law and Justice. That is certainly an improvement over having it located under the very department that is a party to every single case. The current arrangement is self-defeating if one of the goals is to assure serving and former military personnel that they will get a fair shake. Even better, however, than simply shifting the AFT to the law ministry would be to establish a true court, totally outside the executive branch of government. Only in this way, I would suggest, can public confidence be cemented.

Related to this is the need to clarify appellate review of the AFT’s decisions. The legislation ought to make completely clear what the remedy is for litigants who believe the AFT has erred in a decision. Should such cases go directly to the Supreme Court, or should the parties have to approach the High Court? How this issue is most sensibly resolved is a function over the overall structure of the Indian judicial system, but whatever the correct answer, it should be made clear. Additional tiers in the appellate structure can detract from, rather than, improve public confidence if the result is simply further expense and delay. If anything, the need for prompt justice is even more urgent in the military setting than in civilian life – but that promptness should not be achieved at the expense of litigants’ rights.

Indians concerned with the administration of military justice might want to consider two further steps, one of which requires legislation and one of which does not. The statutes governing military justice remain service specific and do not take into account the many new insights provided by accelerating human rights developments and the practice of democratic states around the globe in recent decades. One significant trend is the transfer of the power to decide who shall be criminally charged from commanders to a director of military or service prosecutions. Numerous common law democracies have moved in this direction, with no discernible adverse impact on good order and discipline.

A second development that Indian policy makers might wish to explore is creating the office of military judge, so that courts-martial would more closely resemble the courts with which Indians are very familiar and which have earned a reputation for independence.

A step that would not require government action would be creation of an Indian Institute of Military Justice, bringing together practitioners and law teachers committed to improving the administration of justice within the armed forces. I helped to found such an entity over twenty years ago in the United States. It has contributed significantly to improved public understanding of military justice as well as to a variety of worthwhile changes, with more to come. It is critical that such an organization – a real “NGO” – be truly independent of government. An Indian Institute would be a very useful partner to the AFT Bar Association, which already exists but whose membership and functions are necessarily limited.

Military justice is of concern in any democracy. Where and how the boundary should be drawn between the military and civilian spheres can be a political and social fault line. No system is perfect or beyond improvement. A nation that casts as long a shadow as India does, can and should be a role model for other democracies, and restless in its search for ways to improve its military justice system.

The author is the President Emeritus of the National Institute of Military Justice. A former US Coast Guard Judge-Advocate, he teaches at the Yale Law School. He is also the President of the Committee on Military Justice of the International Society for Military Law and the Law of War. Views expressed are personal.