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Thursday, January 1, 2015

To wake us up, pearls of wisdom from our Constitutional Courts over the ages- for our military personnel, veterans and their families

Despite the pitfalls, we should be grateful for living in a democracy and a vibrant one at that. I have often said so on this blog and elsewhere that more than any other institution, it is our Constitutional Courts that have stood like a rock behind the rights of our men and women in uniform and military veterans.

For the benefit of readers, I just thought of compiling some pearls of wisdom from our Constitutional Courts- speaking for those who do not have a voice. My only request to you is, read this slowly, and carefully. And imbibe positivity in your daily dealings with your own.

Of course, the system is still sleeping.

The Supreme Court in Union of India Vs Capt CS Sidhu (2010):

....Before parting with this case, we regret to say that the army officers and army men in our country are being treated in a shabby manner by the government...The army personnel are bravely defending the country even at the cost of their lives and we feel that they should be treated in a better and more humane manner by the governmental authorities, particularly, in respect of their emoluments, pension and other benefits....


The Supreme Court in Sukhwinder Singh Vs Union of India (2014):

....We, just as every other citizen of India, would be extremely disturbed if the Authorities are perceived as being impervious or unsympathetic towards members of the Armed Forces who have suffered disabilities, without receiving any form of recompense or source of sustenance, since these are inextricably germane to their source of livelihood.

....Secondly, the morale of the Armed Forces requires absolute and undiluted protection and if an injury leads to loss of service without any recompense, this morale would be severely undermined...


The Supreme Court in Charanjit Kaur Vs Union of India (1994):

....This case is a glaring example of gross negligence and callousness on the part of the authorities and the consequent indescribable mental torment and physical and financial hardship caused to the widow and two minor children of an Army Officer. The apathy and the extremely casual attitude adopted by the officers concerned travelled even to the proceedings in this Court and are writ large on the affidavit-in-reply which they have filed in response to the petition...


The Punjab & Haryana High Court in Barkat Masih Vs Union of India (2014) while dealing with the stand of the Government denying disability benefits to soldiers suffering injuries while on authorized leave:

....We find that grant of such leave has dual purpose. Firstly, to give time to the personnel of the Armed Forces to attend to their domestic chores which in their absence while on active service, family members may not be in position to handle. The second is that after arduous nature of duties, some time is required to rejuvenate the Armed Forces Personnel while they are in touch with the civil society. It prepares them for further active duty. In the absence of leave which is necessary for maintaining mental equilibrium, the grant of leave is necessary for discharge of their duties in an efficient manner. With these dual objectives in mind, leave is granted to all Armed Forces Personnel be it the officers or the other ranks. The grant of leave is a necessity to keep the personnel of the Armed Forces in good mental shape. The personnel of the Armed Forces are entitled to periodical breaks to provide mental stimulus, and psychological upliftment. Therefore, without grant of leave, one cannot imagine that somebody can discharge duties continuously 24 x 7 x 365 days of a year. In fact the leave is basic human right even recognized by the United Nations “Universal Declaration of Human Rights 1948” to which India is signatory. Article 24 of such declaration is that “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay”. In CESC Ltd. vs Subhash Chandra Bose (1992) 1 SCC 441, the Supreme Court examined international covenants and held that the health and strength of a worker is an integral facet of right to life. Though the said case pertains to workers in an industrial establishment and that the applicability of the fundamental rights to the Armed Forces can be restricted in terms of Article 33 of the Constitution but we find that the personnel of the Armed Forces are entitled to rest and leisure as a basic human right....

....It is also not disputed that during leave, the personnel of Armed Forces are liable to maintain discipline and are governed by the provisions of the Army Act, 1950 or the Rules framed there under and in a case of any misconduct, liable to be proceeded against. If the personnel of the Armed Forces are entitled to discipline and control of the Army Act 1950, the corresponding duty of the Armed Forces is to take care of their personnel when on leave. It is necessary commitment of the Army....


The Delhi High Court in Maj Arvind Kumar Suhag Vs Union of India (2013):

....It seems that the military bureaucracy in this case or someone within it felt that since injuries were described more specifically as “accidents” while travelling on duty in government vehicles” – in category (C) of the letter/policy dated 31.01.2011, the petitioner was disentitled to war injury pension. The Tribunal’s bland acceptance of these decisions has regrettably resulted in denial of justice to the petitioner. This Court is, therefore, of the opinion that the impugned order of the Tribunal cannot be sustained. The petitioner’s claim for grant of war injury pension in terms of Clause 4.1(E)(i) has to succeed….

....In parting, this Court cannot resist observing that when individuals place their lives on peril in the line of duty, the sacrifices that they are called upon to make cannot ever be lost sight of through a process of abstract rationalisation as appears to have prevailed with the respondents and with the Tribunal….

....He, like any other personnel, operated under extremely trying circumstances unimaginable to those not acquainted with such situations. The cavalier manner in which his claim for war injury pension was rejected by the respondents, who failed to give any explanation except adopt a textual interpretation of Clauses (C) and (E), is deplorable. In these circumstances, the petitioner deserves to succeed….


The Punjab & Haryana High Court in Maj Arvind Kumar Suhag Vs State of Haryana (2010):

.…Ex-gratia payment is not always, paradoxically, an act of charity....The act of heroism which the statement claims that the petitioner's act did not evoke, is in some sense a wrongly exaggerated expression. I do not see from the terms of the policy that the person must have been there actually placing his fingers on the trigger of a gun or hurling a bomb in military action to be entitled to the promised payment. A person, who is in the place of action in the Army and who suffers an injury in the manner contemplated in the policy, which includes an accident in an operational area that is not due to negligence of the person, could well make a successful claim....

....If we must give the expression battle casualty any meaning, I would understand it to mean to a situation where a person while actively involved in the military service in an area, which is a battle zone suffers an injury, then it shall be a battle casualty....

....If there is, therefore, a certificate that the petitioner has suffered a battle casualty (see para 1 above), to take a different view and stonewall the claim of the petitioner from obtaining a benefit of the policy will make meaningless the beneficient and lofty objective which the policy proffers....



The Punjab & Haryana High Court in Daljeet Kaur Vs Union of India (2004):

....Love of a mother for her children has, since time immemorial, been placed at the highest pedestal. When a mother loses a hale and hearty child in some unfortunate accident, she suffers a tragedy which is personal to her and is of such magnitude that it defies description in mere words. The love of the mother is akin to the love of the earth for its inhabitants. It is perhaps this boundless love which prompts and compels the entire mankind to revere this planet as the "MOTHER-EARTH". It is well known that the mother-earth keeps replenishing its natural resources to support the humanity, inspite of the mindless plunder committed upon it by us. We are of the opinion that keeping such like sentiments in view, the Union of India has been promulgating various schemes to give special benefits in cases of death and disability in service benefits in cases of death and disability in service including the payment of ex-gratia lump sum compensation….

....Alas even these provisions will, at best, go only a little way towards assuaging the feeling of utter devastation of the mother who loses a son, whilst performing his patriotic duties for the protection of the Nation. Can the benefits sought to be given to the unfortunate legal heir of a deceased military personnel whose case falls clearly within these instructions, be permitted to be negated by a bureaucratic army officer sitting in his Ivory Tower by sheer mis-interpretation of the instructions, is the significant question of law which arises in this petition. We are constrained to give a preface to this judgment with the aforesaid remarks, due to the peculiar facts and circumstances of this case, which we now notice….


Other democracies:

Even the Supreme Court of the United States in Henderson Vs Shinseki (2010) has commented that the Government should act in a non-adversarial manner in benefits of veterans:

....The solicitude of Congress for veterans is of longstanding.... laws place a thumb on the scale in the veteran’s favour in the course of administrative and judicial review of VA decisions... We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor....


In Holton Vs Shinseki (2009), the US Court for Federal Circuit held:

....A veteran “need not show that his injury occurred while he was performing service related duties or acting within the course and scope of his employment in order to receive disability benefits; for purposes of disability compensation, a service member’s workday never ends....

In 2015, let us confer a solid salute again to our Constitutional Courts.


Jai Hind.

9 comments:

dev said...

God and soldier are remembered only in bad times and both have a invisible way of discharging their respective duties.They also are worshipped by people at large but irony is that God and soldiers get quickly forgotten after deliverance. God is not required and soldier is out of mind......until the next bad time. But remember that both DELIVER selflessly. Let these Govt understand this or not....CHEERS Navdeep and all veterans...happy new year. Nation at large is always grateful to us.

RAMANA said...

dear sir
a fabulous compilation.
may i have your permission to try and publish the blog in the local news paper
blessings
dr brigadier v ramanan

Alok Asthana said...

This is definitely welcome. Thanks. Navdeep. However, I do not see this as proof that 'nation at large is always grateful to us'. What use is such passive gratitude that offers a rose or a candle but is not prepared to force the government to do anything. More on how Indian society is the biggest villain, at https://www.linkedin.com/pulse/do-soldiers-have-right-even-ponder-all-worth-dying-alok-asthana

LT COL GYANENDRA DUTT MISRA said...

Dear Maj Navdeep,
Commendable compilation .
Atleast the Raksha Mantri could be sent this compilation to understand what our Courts have said about Army Pers Then only he will consider 100% satisfaction rather then 80%.
Regards,
Col GD Misra

Ajit Datta said...

May the thumb always press in favour of Navdeep when others are using heavy canons to blast off the scales while degrading the veterans. As old age is short, we may die of nothing or having nothing as medals were given to the Supreme Commander who refused to accept wisely or die for nothing but all must remember that the Judiciary is rock solid in remembering our fighting days for them and that we did not permit the flag to fall onto to the ground. We die happy

madhu sudan bisht said...

Nice work Navdeep. Dev has really made it a point for the government to understand the issue.
Hope the government will take corrective measures.

Col M S Bisht (Retd)

Anonymous said...

maj navdeep... this chat is educative ..but are the ppl in control both in the AFs and the MOD are the ones to be sensitized.... still thank you for the information u provide....

Anonymous said...

Dear Sir

The honourable courts have time and again given their verdict in favour of the soldiers but then the biggest question is who is listening. The government tries its best to read the court verdict to what suits them. The people at the helm of affairs in the government do not even care to take corrective measures as firstly the court verdicts and words do not concern them and secondly they are never held responsible for the pain so many of us soldiers undergo by their negative interpretation of the court orders. It is so astonishing that soldiers have to again file a separate case to get the interpretations right and that takes a lot of time. So it is high time the court takes cognisance of such actions and take those staff to task who deliberately try to delay things just to satisfy their ego. I hope the time will come soon .

dinesh kumar said...

THANYOU MAJ NAVDEEP for this unique efforts n wisdom of complementing strong n favorable judicial decision most by our great n one of the most successful pillar of democracy THE GREAT INDIAN JUDICIARY of which you r also one of member. Thousands Salute to you. If we can not look after d soldiers n veterans then why should we send them to wars? COL HKD