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Tuesday, March 31, 2015

Is it all about the money, honey?

Some observations are painful. Some battles lonely.

It is particularly painful to observe how the military community raises a big hue and cry whenever there is a controversy related to a matter involving monetary benefits, but the guns fall silent when the issue is equally, or even more pertinent, important and urgent but then it does not affect people financially. These are insidious matters which affect the rights and privileges of the fauj as a whole but many of us are not bothered.

It is because of this very attitude, especially prevalent in the officer community, that we are where we are. We get what we deserve. To take an example, the recent post on the biggest blow to your fundamental rights since independence which is going to affect you for the rest of your lives resulted in only about 8 published comments on the blog but the pensionary arrears flowing out of the decision on the pension fixation arising out of the 6th Central Pay Commission evoked about 50 published comments. The op-ed on the way the system is shabbily treating our disabled soldiers, especially of the lower ranks, evoked just 4 comments but "One Rank One Pension" or the rank pay decision of the Supreme Court resulting in financial benefits to officers resulted in 125 comments.

The above is testimony enough that our priorities are aimed in the wrong direction and we are turning selfish by the day. From the thousands of emails I receive, rarely are there some that refer to or speak of or offer help in taming the malaise that has set in on a macro-level in some of these key issues. Mostly the calls and communications seek information on the amount that is due- nothing for others, everything for self.

I would request the defence community to wake up and move beyond wallets and purses. There is lot more to cover. You have to sensitize the society at large and stand up for those who do not have a voice, especially veterans of the lower ranks, disabled soldiers and military widows. You also have to sensitize the government and work hand in hand with the establishment to lift up the unsung and the unheard. YOU have to do it by rising above your own personal gains.

I hope we remember what Martin Niemöller said:

First they came for the Socialists, and I did not speak out-
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out-
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out-
Because I was not a Jew.

Then they came for me-
and there was no one left to speak for me.

Folks, come around....

Friday, March 27, 2015

Gullible military community: celebrating the trampling of its rights

There is something very unique about the military community, and that is, axing their own rights and then celebrating it, realizing quite late as to what hit them!

This short-sighted approach has cost us a lot in the past. But then would we ever learn? Of course not!

Which organization would appeal to the Supreme Court seeking abrogation of its own fundamental rights?

Read on!

This post is again about the recent decision of the Supreme Court on an appeal filed by the Ministry of Defence on the jurisdiction of High Courts to entertain writ petitions against orders passed by the Armed Forces Tribunal. The Supreme Court had held that High Courts should not entertain writ petitions against orders passed by the Armed Forces Tribunal and that litigants should file appeals in the Supreme Court instead. 

Some of the members of the military community, thankfully in minority now, were trying to sell the idea of a direct appeal to the Supreme Court arising out of orders from the Armed Forces Tribunal, on the plank of it leading to ‘quicker justice’. Little did they fathom that what they were terming as ‘quick’ justice was in fact the absence of any judicial remedy at all due to the curtailment of the jurisdiction of High Courts. This is so since there is no vested right of appeal before the Supreme Court unless there is a ‘point of law of general public importance’ involved in the case. So effectively, as per the current system after the ibid decision, High Courts cannot interfere and the Supreme Court cannot be approached except in exceptional cases involving ‘public importance’. Moreover, there is no appeal at all provided, even to the Supreme Court, for interim orders passed by the AFT if either of the parties is dissatisfied. Besides that, even if the appeal to the Supreme Court had hypothetically existed as a matter of right, defence personnel or veterans or widows or their families cannot even dream of approaching the Supreme Court for their cases, making the entire concept of justice redundant, unaffordable and inaccessible for them, to say the least.

One of the cardinal principles in a democracy is the availability of judicial remedy in case a person is dissatisfied with a judicial order by a forum- a right available in abundance to each citizen in our country too, including all Government servants, except now for defence personnel, veterans and their families. And this absence of judicial remedy was being celebrated by some as ‘quicker justice’.

Now comes the shocker. One of the pleas taken by the Ministry of Defence (and also in all probability, elements of the Army Headquarters) before the Supreme Court in this case was that Article 33 of the Constitution of India empowers the system to restrict or abrogate fundamental rights of members of the Armed Forces and hence the fundamental right of remedy of a writ petition stands eliminated for the defence community.

This ground professed by the establishment therefore seems to suggest that members of the Armed Forces do not deserve the fundamental rights as guaranteed to other citizens of the Country. Have you ever heard of any organization placing before the Supreme Court a prayer to curtail its own rights? Well, now you have.

I find this plea detestable on multiple grounds:

Firstly, Article 33 purely deals with maintenance of discipline while on duty and has no link whatsoever with the right of defence personnel to seek invocation of the writ jurisdiction of Constitutional Courts, that is, the High Courts and the Supreme Court.

Secondly, the same Article 33 is applicable to all other uniformed services, including the Police, have the rights of those organisations been abrogated or restricted in this regard? Have those organisations or will those organisations approach the Supreme Court with such inane pleas? A civilian government servant can invoke writ jurisdiction of the High Court if he/she is dissatisfied with the order of the Central Administrative Tribunal, but now a member of the military cannot! Does this call for celebration?

Thirdly, most of the cases relate to veterans, widows and family members and Article 33 has no applicability over them. And what would happen to Article 39A which entails equal opportunity to justice?

Fourthly, why on earth would the Army or the Ministry even attempt to suggest to the Supreme Court or elsewhere that the defence community does not deserve the fundamental rights as enjoyed by each and every citizen of this land. Has the top brass analyzed this plea, the decision and its after-effects on the status of members and former members of the military? A dangerous proposition reflecting the worst kind of self-goal.

Mark my words, since independence this has been the biggest hit to the rights of the protectors of our frontiers and their families, and it does seem that many of us have not realized it yet.

Yes, gullible. And sad.

Live with it. Celebrate your defeat. 

Tuesday, March 17, 2015

Pay arrears of pension to all Pre-2006 retiree Central Govt pensioners from 01 January 2006 rather than 24 September 2012 : Supreme Court

As most readers would know, there were anomalies in the fixation of pension of pre-2006 central govt retirees with effect from 01 Jan 2006 and the question was whether pension was to be calculated based on the minimum of each grade/rank within the newly introduced pay-bands or on the minimum of the pay-band itself. The said anomaly was resolved by way of judgements of the Central Administrative Tribunal (CAT) as well as Armed Forces Tribunal (AFT) which inter alia ruled that pension would be calculated on the basis of minima of each rank/grade within the pay-band. The judgement of the CAT was challenged by the Govt before the Delhi High Court. In the meantime however, the Govt itself removed the anomaly but granted the benefits from 24 Sept 2012 rather than 01 Jan 2006 which was the date of the inception of the anomaly.

Hence the exact controversy now stood narrowed down to whether the benefits of the correct pension were to flow from 01 Jan 2006 which was the date from which the 6th Central Pay Commission recommendations were implemented or from 24 Sept 2012 which was when the Govt had decided to remove the anomalies in the pension structure after the said Pay Commission.

The controversy was finally resolved by the Delhi High Court which directed that after removal of the anomaly, the pension arrears were to flow from 01 Jan 2006 and not from the future artificial date of 24 Sep 2012. Never to respect well-rounded judicial verdicts, the Govt challenged the decision of the High Court before the Supreme Court, however the Supreme Court was pleased to dismiss the SLP filed by the Govt in July 2013. The Govt then filed a review petition followed by a curative petition alleging ‘gross miscarriage of justice’ but a 5 Judge Bench dismissed the curative petition too.

The Govt however did not implement the decision across the board and kept filing SLPs and Civil Appeals across the board against decisions of judicial fora in favour of pensioners.

Ultimately, all these cases were clubbed together and were finally heard today by the Supreme Court.

The Supreme Court has today dismissed all appeals filed by the Union of India and upheld the decision of grant of arrears with effect from 01 January 2006 rather than 24 September 2012.

Another closure to another agony. 

The amount of basic pension which was made admissible from 24 September 2012 for each rank can be discerned from this Circular issued by the Principal Controller of Defence Accounts (Pensions). The said amount plus applicable DA/DR would now be admissible from 01 January 2006. 

Wednesday, March 11, 2015

By way of a decision of the Supreme Court rendered today, the right to effective Justice curtailed for defence personnel, veterans and families

It is indeed a dark day for litigation related to defence personnel, defence veterans and their families.

The Supreme Court has rendered a decision today which effectively ensures that the Armed Forces Tribunal (AFT) becomes the first and the last forum for litigants, thereby placing them at a much lower pedestal than other citizens of the country.

By way of the ibid decision, it has been held that orders of the AFT cannot be challenged by affected parties before the High Courts, as was being done till today, and the only remedy to challenge the same is before the Supreme Court by way of an appeal as provided in Sections 30 and 31 of the Armed Forces Tribunal Act, 2007. What however is bound to hit litigants as a rock is the fact that there is no vested right of appeal to the Supreme Court conferred by the above sections and an appeal can only be filed by the leave of the Tribunal in case a “point of law of general public importance” is involved or if it appears to the Supreme Court that the point is such that it needs to be considered by the highest Court of the land. The fact that there is no vested right of appeal has already been solidified by the Supreme Court in yet another decision (Brig PS Gill’s case) and the fact that issues such as pension are not matters involving ‘point of law of general pubic importance’ has also been judicially determined in a recent case (ML George’s case). Of course, most of the issues before the AFT are not of general public importance but matters personal to litigants, which means, that such matters are barred by the statute itself to be taken to the Supreme Court in appeal and hence the AFT becomes the only Court for military litigants effectively closing the right of judicial review. It is yet another story that Sections 30 and 31 of the Act have been plagiarized from the appellate provisions provided for the House of Lords (Now the Supreme Court of the United Kingdom) and have no parallel in Indian jurisprudence as we know it.

The Supreme Court, in its decision today, has also stated that High Courts shall not entertain matters when an effective alternative remedy is available within the statute [Para 34 (iv)], but then, as the above would demonstrate, and also tacitly held by the Supreme Court earlier, that there is no effective remedy available at all since the same is fettered by discretion and also subject to the leave of the Tribunal.

The Supreme Court has cited judgements such as Cicily’s case dealing with other statutes like the Consumer Protection Act. This issue however already stands discussed in PS Gill’s case wherein the Supreme Court had held that while the Consumer Protection Act provided for a vested right of appeal, the Armed Forces Tribunal Act did not. Moreover, in law such as consumer or tax, the litigant has a multi-layered remedy of reviews and appeals. To take an example, in consumer cases, the consumer can first approach the District Forum, then the State Commission followed by the National Commission and then the Supreme Court, as a matter of right. However, in case of the AFT, the litigant starts and finishes with the AFT unless there is a question of general public importance involved. Also, while consumer law deals with consumer disputes mostly between private parties, in case of the AFT the disputes are between an individual and the Government and are determined by a quasi-judicial tribunal functioning under the aegis of the opposite party (The Ministry of Defence) and involve valuable fundamental rights. Even the Members of the AFT are selected by a selection committee which has two career bureaucrats on it, including the Defence Secretary, who is the first opposite party in all litigation before the AFT. To be fair, it wouldn’t be in the fitness of things to opine that the functioning of the AFT has not been up to mark. The AFT has duly brought succour to the defence community by some of its decisions, but then, the performance has not been uniform or even, and as in every democracy, a multi-layered system of appeals and/or judicial review is a legitimate expectation of every citizen when he or she is not satisfied with the verdict rendered by a forum. The situation would have been different had there been an Appellate Tribunal and then a vested right of appeal to the Supreme Court, but that is not the case. Layers cannot and should not be eliminated on the pretext of early dispensation of justice but at the cost of valuable rights and remedies of citizens.

The Supreme Court, in its decision, has also relied upon Article 227(4) of the Constitution, which prohibits the superintendence of High Courts over Courts or tribunals constituted by or under any law related to the Armed Forces. However the words ‘courts and tribunals’ occurring in Article 227(4), which is a part of the Constitution, refer and relate only to courts-martial as becomes clear from Chapter 10 of the Constituent Assembly debates and not to any tribunal such as the AFT which itself was born by way of a Parliamentary Act in the year 2007 many decades after the inception of Article 227(4). Moreover, judicial review under Article 226 still remains unaffected even if hypothetically the bar of Article 227(4) is taken into consideration. Even Section 14 of the Armed Forces Tribunal Act, 2007, itself preserves Articles 226 and 227 of the Constitution of India. The writ jurisdiction under Article 226 is not a remedy of interference but ensures that authorities, including Tribunals, remain within their bounds. The system of judicial review by the High Courts also reduces the scope of recklessness by quasi-judicial bodies since they remain alive to the fact that they are amenable to the writ jurisdiction of the High Courts. 

The Supreme Court has also referred to restriction of fundamental rights of members of the Armed Forces under Article 33 of the Constitution. But the question arises whether the basic human right to judicial remedy can be curtailed? Also, the restriction only applies to members of the Armed Forces and not to retired personnel or to their families, who form the bulk of military litigants. The same restriction in the same Article also applies to paramilitary and the police, have they also been burdened with curtailment of judicial remedy? Obviously not!

The net result of the decision rendered by the Supreme Court today, is the following:

A. That the AFT becomes the first and the last court for defence personnel, retired personnel and their families, unless there is a point of law of general public importance involved. The Supreme Court has already made it clear in other cases that there is no vested right of appeal and matters such as pension do not fall within the realm of ‘point of law of general public importance’. The AFT would also now continue deciding issues involving “points of law” which had recently been prohibited for tribunals by a Constitutional Bench decision of the Supreme Court in the Madras Bar Association case pertaining to the National Tax Tribunal.

B. That there shall now be no efficacious remedy against AFT orders which shall also lead to practical problems. For example if a widow or a disabled soldier sitting in Kerala or Bengal or Assam or Gujarat is dissatisfied with an order of the AFT, he or she would first have to apply for a leave to appeal to the AFT, then engage a lawyer in Delhi for his/her case before the Supreme Court.

C. The litigation that was till now being adjudicated by independent Constitutional Courts would now be determined by a quasi-judicial departmental Tribunal which is not even vested with the powers of Civil Contempt and which has the Ministry of Defence as its parent administrative Ministry, without any vested right of further appeal.

D. The Government with its battery of lawyers in the Supreme Court would continue filing en masse appeals against orders that are favourable to litigants while litigants would not be able to afford litigation at the Apex Court at all.

E. The Supreme Court, which was meant to adjudicate matters of great importance and Constitutional issues, would now open its floodgates for innocuous litigation arising out of quasi-judicial Tribunals, for which even practically it does not have time and space, as opposed to the High Courts which are still able to provide hearings at length.

F.  Defence personnel, veterans and their families become even lesser citizens than what they already were. Justice would neither remain affordable, nor accessible. 

G.   Years and years after independence, the system succeeded in eliminating the eye of our fiercely independent High Courts upon the establishment’s opaque functioning by legislating the fractured Armed Forces Tribunal Act, 2007. The inception of AFT hence did not ultimately prove to be a boon, but a restrain on judicial rights. 

The effects of the decision are deleterious and far-reaching and it is only hoped that other similar pending matters are referred to a larger Bench of the Supreme Court and the situation corrected.