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Monday, March 24, 2014

Interim Orders of the Supreme Court on voting rights of defence personnel

As many readers would be aware, the Supreme Court is looking into the aspect of effective voting for armed forces personnel, including voting at their places of posting.

The problem originates from the fact that the Election Commission of India by way of an order has ordained that only personnel with more than 3 years of residence at their place of posting would be permitted to register as general voters at the said place. Of course, this 3 year rule does not find basis in any statute.

The case was listed today and it seems that the Apex Court has directed in its interim directions that armed forces personnel would be allowed to be registered as voters without insisting on the 3 year clause in all those constituencies where the poll process has not yet commenced. The main petition remains pending and may be decided by a larger bench.

Readers may like to view an opinion on the subject on StratPost.

More when the Supreme Court order is made available.

Sunday, March 16, 2014

An ‘apolitical’ military : convoluted theories- A surge in political awareness was expected

An ‘apolitical’ military : convoluted theories

A surge in political awareness was expected

Navdeep Singh

One keeps hearing that the military must remain apolitical. Of course in a democracy it must. But what is the definition of ‘apolitical’? Does it mean that the members or former members of the military must not take part in the political process of the nation, or does it simply mean that organizationally the military must not have political inclination and should not interfere in the political process?

While the latter thought is acceptable, the former is unconstitutional.

The advocates of the theory that individual members of the uniformed forces should be politically inert are flirting with the extreme which goes against the grain of a democracy. When the lowest ranking Sepoy or the highest ranking Chief of the Army Staff goes out to press that button in the Electronic Voting Machine (EVM), does he not have in mind a political party which is going to receive his vote? Or is there an option for ‘military apolitical party-less vote’ on EVMs?

In any true democracy, the military must not interfere with the political process of the nation and should not harbour any political dreams and should also not institutionally support any form of political order. But that does not mean that individual members of the military would not have a say in the political process or the voting process or that they would cease to have in their minds an inclination towards any political entity. Had it been so, then Article 326, which provides for adult suffrage, would have been suspended for members of the armed forces.

The sudden debate on military and politics stems from the fact that after an inordinately long never-ending era of being totally ignored, military personnel, veterans and their families have realized that the most potent tool in a democracy is the power of vote.

Treatment meted out to this community does not only have bearing on their votes but also touches the emotional chord of the nation at large thereby resulting a huge emotional sway of sorts, something that political parties must realize at the earliest. So when you hear that the maximum number of appeals filed by the Indian Ministry of Defence in the Supreme Court are against their own disabled  and war disabled soldiers related to disability benefits granted by High Courts and Tribunals, it does not only affect military voters but also influences the collective conscience of the nation.

Military voters suffered in silence for long. Then came a stage when they became vocal and open about their grievances, especially after the Sixth Pay Commission. That did not work, then they returned their medals, even that did not cut any ice. It is at this point that they probably realized that the only factor that could work in a democracy was not anger or dissatisfaction or exasperation, but that button on the EVM. And No, I’m not referring to the ‘None of the Above’ (NOTA) option!

It would be too mild to state that the Government has not treated its military well. The writing has been there on the wall- that of dissatisfaction, especially of veterans. Even well meaning Raksha Mantris and Secretaries of the Department of Ex-Servicemen Welfare (DESW) have been blinded and hoodwinked by the anti-military sentiment perpetuated by lower level staff of the said department where the show is ruthlessly run by a handful of officers who play around with the higher echelons with misleading inputs and deceptive file notings. The blame is to be shared by the higher level decision making bodies for not applying mind and not seeking across-the-table inputs from stakeholders. Even Courts have not been spared. One Under Secretary of DESW recently wrote to a Major General asking him to desist from sending letters on issues of military welfare since such communications ‘clog the department’. Another officer who since times immemorial had remained in the pension wing of DESW was clandestinely re-employed as an ‘Officer on Special Duty‘ (OSD) in DESW by circumventing and flouting rules. Ironically the said officer has been re-employed to fight cases against defence pensioners and disabled soldiers in courts but he is getting his salary disbursed from the ‘Armed Forces Flag Day Fund’ which is meant for the welfare of those very people he is pitted against. Though top brass of the DESW realizes that the department is plagued with ‘negative attitude’ they feel that they cannot do without such officers since they have become indispensable to the system. Strikingly, the Department of Pension and Pensioners’ Welfare (DoPPW) on the civil side works in a completely positive framework by inculcating positivity and an all-inclusive approach. DoPPW decisions are taken by consensus by involving stakeholders and by holding regular meetings between the ‘official side’ and the ‘staff side’, something unheard of in the Defence Ministry in general or the DESW in particular.

Repeated pointing out of such issues by serving personnel, Services Headquarters, veterans, veterans’ associations, MPs and Ministers to the set-up has not moved them into action and hence a political tinge was not entirely unexpected. Irrespective of political parties, naturally the military community would be looking at entities who promise to positively resolve their long pending demands.

While glamorous issues such as One-Rank One Pension (OROP) have hogged the limelight, it is insidious issues which have escaped notice and resolution. Today, jawans start retiring at the age of 34 onwards without any assurance of employment thereafter. The Government with much fanfare announces re-employment opportunities which are in fact not commensurate to the ranks held by such soldiers. For example, the Railways went about town advertising vacancies for ex-servicemen but what was not highlighted was the fact that they were offering Group-D (Formerly known as Class-IV) level employment  on posts such as water carriers and Multi Task Workers to ex-servicemen holding Group-C (Class-III) and Group-B (Class-II) Gazetted appointments from the ranks of Sepoy to Subedar. Thousands of appeals in the Supreme Court are proposed to be filed by the Defence Ministry against benefits granted to disabled soldiers by Courts and Tribunals, egged on by recommendations of lower level bureaucracy and blindly approved by top brass. This may bring about handsome payments to Government lawyers in the Supreme Court but would only bring miseries to the old, infirm and disabled. Disabled soldiers with non-service related disabilities with less than 10 years of service are not entitled to any pension but the employment of civil employees is fully protected enabling them to earn full pay and allowances during their service and then full pension on retirement. Why would a person want to join as a jawan of the forces and not as a civilian employee enjoying stability and a settled life probably even in his/her own hometown, employment-protection, retirement at 60, staying with family, working for fixed hours, holidays, weekends?. Women officers are being discriminated since ego-based actions become impediments in harmonizing policies and identifying the middle path. The sheen of the military rank has been on the decline, there is no role for military in the Rules of Business or in the decision making process and policies concerning them are forcibly imposed, unlike say, in the Railways which has a Railway Board looking after them. The Armed Forces Tribunal has been placed under the Ministry of Defence reflecting a complete conflict of interest and lack of independence and without any powers of civil contempt and whose decisions are simply ignored and not followed by the Ministry. The list is never-ending and moving towards infinity by the day.

What the above signifies is that though there is nothing wrong in being a part of the political process, the fact that this participation has come out so sharply in the recent past is because of the slackness in addressing long pending issues by successive governments.

Rather than debating whether this political awakening of the military community is desirable or not, efforts on the contrary should be made to ensure that they are retained as an integral process of the political system of our nation. Veterans, just like other citizens, are entitled to be a part and parcel of our rich electoral arrangement, de hors the perceived pitfalls. Special efforts should be made to inform them about the modalities of the electoral process, since they, having served away from the real world for most of their military careers, are at a loss in understanding the same, and of course, gullible too at times. Serving personnel and local military commanders should also be properly educated about the process and the various forms of voting including postal ballot. For those posted (and not merely temporarily deployed) in locations other than inaccessible field areas, the easiest and the most effective way is to get themselves registered as ordinary electors at their places of posting. This can be done during house-to-house enumeration conducted by election staff or by filling up and submitting Form-6 which appended with Registration of Electors Rules, 1960. The most epigrammatic way to the aim of clearing doubts in this regard is a simple visit to the local electoral office at the place of posting. Of course, the interpretation of the Election Commission of India in this regard also remains a point of litigation now pending before the Supreme Court.

Besides educating the military community about the minutiae of the electoral process and welcoming them with open arms in light of the new found political awareness, all political parties should take a cue and devote time and energy in understanding what has gone wrong and how it should be addressed, rather than centering on whether political awareness of the military community is virtuous or not- It is, and they will. The law allows them to vote, irrespective of amusing ideas that some seem to have to the contrary, which thankfully do not find basis in the Constitution of India.

Political parties, please brace up and lend a hand.

Sunday, March 9, 2014

When the (military) hedge eats its own grass!

Now this is yet another classic case of the hedge eating the grass.

Earlier in many cases disability pension of disabled veterans used to be discontinued if such veterans failed to report for re-survey medical boards in time. And then if they reported at a later date, pension of the interim period used to granted only on discretion of the authorities and arrears used to be restricted. Ditto was the case in appeals against rejection of disability pension. After a long fight, the issue was resolved and the Ministry of Defence very graciously issued instructions to medical boards to opine upon the percentage of disability during the interim period so as not to deny disabled veterans their disability pension during the gap.

However, even though explicit instructions have been issued by the Govt, our Record Offices, and in certain cases even the Services HQ, have still been denying disability benefits for the interim period and insisting upon illegal undertakings from disabled personnel that their cases would only be processed in case they were ready to forfeit their pension for the interim period. On being pointed out the latest Govt instructions to the effect, rather than just following such instructions, elements in our own establishment have been seeking clarifications from civilian officers as if just expecting to get a negative reply that can be further imposed on our disabled soldiers. It is also not understood as to why our officers in uniform do not have any confidence in their own understanding and art, so much so that they keep on seeking infructuous clarifications on explicit and clear-cut instructions thereby giving a leverage to chances of negative interpretation from some quarters.

A self-explanatory letter on the subject, addressed to the AG by me, is reproduced below. Needless to state, no positive action has been taken till date:

Adjutant General
South Block, New Delhi-11

                                                                                                    06 Oct 2013


1.        This seems a clear-cut case of the hedge eating the grass and I feel duty-bound to point this out to you for resolution before bringing it to the notice of the Chief of the Army Staff and the Raksha Mantri. This is an issue wherein the Govt has agreed to a long pending demand of military veterans and disabled soldiers but elements in the Personnel Services Directorate (PS Directorate) at the Army HQ and Record Offices are still putting in an unnecessary spoke in the wheel.

2.           Since times immemorial, there had been cases of disability pensioners missing out on their re-survey medical boards due to various reasons including lack of knowledge and ambiguity of rules and of claims of disability pension not being processed in time or appeals against rejection of disability pension being processed after an inordinately long period which resulted in such disabled personnel losing out on their disability pension for the interim period, that is, the period between release from service or discontinuance of disability pension till the date of the fresh medical board or the appeal/review medical board. In some cases, certificates of undertaking were being taken from such pensioners that they would not claim arrears for the interim period or that arrears would be restricted for 3 years prior to making of the application or the medical board. In yet some other cases, no arrears were paid and disability pension was started from the date of the fresh or the appeal/review medical board and there were other cases where all arrears for the interim period were duly paid. There also was total confusion and grant of arrears for the interim period was more or less discretionary at the hands of administrative authorities.

3.        To offset this problem and to ensure that disabled personnel do not lose out on their monetary disability benefits, the Services HQ took up the issue with the Govt of India / Ministry of Defence that arrears for the period between the release of the person from service/earlier medical board till the fresh/appeal/review medical board should be payable in terms of a universal policy. The Govt of India very kindly agreed to the request and issued a policy letter No 16(01)/2009-D(Pension/Policy) dated 10 Nov 2010  wherein it was now provided that from now onwards, all medical boards shall comment upon the percentage of disability during the interim period for which the pension had not been granted and the same shall be then processed for release of benefits. The contents and salient points of the letter were also very nicely explained in another letter issued by PS-4 (Legal), that is, Letter No  46453K/Misc/AG/PS-4(L)/BC dated 17 Oct 2011 which was endorsed to all concerned. Copies of both the above mentioned letters are enclosed.

4.          It is however a matter of great concern that elements in the PS Directorate and also Record Offices are still insisting on taking certificates from disabled personnel that they would be claiming disability pension only from the date of the Re-Survey Medical Board or Appeal Medical Board and that they would not be claiming arrears. In other cases, the PS Directorate is taking certificates from officers that since there is a delay in processing the claim, they would not be claiming arrears of more than 3 years of the interim period.  The claims for disability pension are not being processed unless the affected personnel submit the said certificates. One such example in respect of No 3376751 Ex-Naik Avtar Singh of the Sikh Regiment is enclosed herewith wherein his disability pension claim was only processed after he submitted the enclosed certificate and he was paid his disability pension only from the date of the fresh board.

5.          It is a matter of even greater concern that the MoD has informed me in writing in the past that they have NOT imposed any such restriction on the disability benefits of disabled personnel and the same is being done locally by the Army HQ. In fact, the MoD has made it mandatory for all medical boards to incorporate a column of disability percentage for the interim period to facilitate the processing of such claims.  To put it crudely, this amounts to black-mail wherein our soldiers and officers are informed that their claims would not be processed unless they submit such self-incriminating certificates.

6.         You are hence requested to rein in such elements of the Army HQ as well as the Records Offices who insist on exterminating the benefits of disabled personnel which have been granted by the Govt of India to them. It defies logic as to what pleasure do such elements derive by sadistically illegally restricting such benefits when no such restriction has been put by the Govt of India? Even otherwise there should be an element of positivity while dealing with such claims and policies should be interpreted liberally and positively rather than restrictively and narrowly.

7.        You are requested to look into the matter in detail without being blinded by noting sheets put up from below which I’m sure they would do in order to justify the illegal actions perpetrated by some of our own. Strict instructions may be issued to the MP Directorate, PS Directorate and all Record Offices to follow the instructions of Govt of India/MoD Letter No 16(01)/2009-D(Pension/Policy) dated 10 Nov 2010 and PS-4 (Legal) Letter No 46453K/Misc/AG/PS-4(L)/BC dated 17 Oct 2011 in letter and spirit and not to insist on submission of such undertakings which have become illegal with effect from 15 Nov 2010.

Thanking You