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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. 


A Sunder Rajan said...

I cannot understand as to how the rights of the families, of the service persons and the ex servicemen and their families be curtailed by the SC. To some extent, one can understand the rights of service pers being abridged, though even that is questionable. a larger SC bench needs to rethink on the subject and soon

dattatreyahg said...

This is a timely warning which should be taken very seriously now itself,lest we regret & repent later, if & when it hits hard. The best legal brains of the Country should be invited to debate the Pros & Cons of this issue and take suitable remedial actions,if required.

BB said...

I have read this shocker and also shared it on my face book. so we are officially in bondage. There is one General whose heart beats for his men and that is Gen Bahri. I am forwarding this to him too
Biman Mistry


Now it is clear that we are on the path of self-destruction and of course on a suicide way.A good shocker;EVERY ONE SHOULD READ AND SELF ASSESS.

Ajit Datta said...

The curb should be more on the executive than on individual . Somehow the cantonment syndrome mindset cannot fathom the idea of individual freedom that is based on equility and justice for all. There can never be a perfect judgement and curtailing right to appeal does not really make any sense.

Fauji said...

1. Thanx for a beautiful explanation and amplification.

2. The path will lead to self destruction, mis understanding and bitternesses and spoil the fibre of beloved service. These days we find synergy in three arms difficult..with all this ...synergy may be lost within Army as well. The things were ok when people were not aware, after having gone through the 41 pg verdict...it is a conspiracy theory .I am surprised how can any sensible person stand for it.

3. Unfortunately, we carry things to far...NDA type, sqn type, coy type,unit type.......at senior ranks indl have to think of bigger things and not be restrained by myopic goals.

4. Very sad, thats why Army is in this condition today....people are found wanting (incl gens) on basic issues which a cadet is taught in first term in NDA.

Jai Hind...may some good sense prevails somewhere.

Alok Asthana said...

You're right. Mandeep. Typically, fauzis are shortsighted. This is what blind obedience of orders does to good men. Army HQ people are simply bureaucrats wishing to please the MOD. As for MOD, they are our biggest enemy. Easy to fight Pak and China, difficult to fight MOD.

Brig (Retd) S Sreeramulu said...

I feel there is a need to approach the Supreme Court for the following:

a. Inordinate/unexplained delay inc implementing OROP. There is no rocket science in calculations. Even if it were, the Govt has the necessary wherewithal to calculate arrears.

b. Secondly, justice delayed is justice denied. Repeated promises of the PM and RM have now lost their value.

c. Thirdly, the Hon'ble Supreme Court should restrain the Union Govt from implementing any other wage revision eg. that of MPs, till OROP is implemented.

d. A list of cases where the UOI is fighting against the interests of service personnel and their widows, should be put on public domain in an exclusive website. It will at least shame them.
Brig S Sreeramulu (Retd)

raj said...

Very good work Major. Keep it up.

Anonymous said...

BECAUSE JAI HIND IS MUCH MORE IMPOTANT than a parochially divided army for AVSC pro rata vaccancies for select ranks;
1st submission to the honorable policy makers is a simple logical calculation followed by data analytics would enlighten the actual no. of bullets fired vs infantry personnel killed in 2nd WW,1965, 1971 and 1999 kargill ops ; remember in the same ops other arms also equally braved the vagaries of frontline
@ 2nd point for our honorable policy makers is what about hardships and hazards of military service during peace time? Wars are far and few between decades - (1948,1965,1971 1999 and to get a correct perspective let us keep CI and IS duties aside because in those duties , young captains , majors and lt cols go from all combat support arms as much or more than infantry and artillerry;) Always in peacetime military service be it field areas or peace areas the daily challenges of technical support arms are much more hazardous-
can anyone imagine breaching through crazy networrk of vintage mine fields, many even now having obsolete but still lethal mines (heck - we are not even trained for obsolete and phased out mines but they exist in huge quantities); has any one bothered about hazards of demolition charges, neutralizing and removing terrorist IEDs, explosives . Can we wonder the risks of landslides and exploding rock splinters that blasting through rocks to make tracks in snow clad mountains envisage, can you feel the frost bite of the road opening parties and open seat of a bulldozer at - 8 degree or operating a dozer in snow at 6 in the morning to open our mountainous routes and maintain the highest motorways? these are just a tip of the iceberg that peacetime operational works of the army involve, how about lugging up cement bags iron girders, stones and iron sheets etc up the same snow cladpeaks deelve deeper with our friends and contacts and we'll know what about ravages of leading and operating multiple flood releif columns each year, how about various bridges demolished , blown apart and relaid within 24 hours even wether due to militants , floods or CommonWealth corruptiion Games,and various other earth quakes, natural disaters etc which invariably tax the so called technical arms round the clock much more that than our superior and fitter infantry , arty bretehrens; btw does Arty ever face enemy bullets 20,000 mtrs MINIMUM or more behing the combat zone , in their dugout and fortified gun posts?

@3rd and most pertinent points for our honorable decision makers-- .Our so called master strategists and security advisers read, prophesies and circulate so commonly about the next generation of warfare - which adversary IN A FUTURE STANDOFF would not like to attack destroy and hack away at our critical infrastructure, banking network, communications and railway network and economic exchanges at a much lesser incremental military cost to that adversary???? - how would we feel foregoing our weekly groceries for weeks and foregoing our monthly paychecks for months? Add to that the scenario of a threatened survival with no water, no electricity ,no telecom and internet due to destruction of our critical infrastructure. Hope we are not banking on our superior Infantry and Arty alone to save us from this warfare. And we are not even imagining CBRN warfare i.e chemical biological radiation nuclear war which may be unleashed if the push comes to a shove for the radical elements of our western adversary .

Last but not the least we can double check as to what happened in the year long Op Parakram in 2002 -03; Suitable parliamentary replies would show we lost close to 1000 soldiers without any war/ battle only in minefields and related tasks of Op Parakram - any body's guess how many bullets were fired or "braved" by our Infantry and Arty superiors in that year long standoff?
with great respect for all our bretheren and greater respect for our Infantry and Arty superiors i appeal for a holistic and fair review of the main issue ; - Jai Hind

ravin1945 said...

Your article is a wake up call to all serving( who thinks he will never retire) and retired officers. Let us unite,contribute and fight for our right in HSC.
Col Ravindran (Retd)

kmpods said...

Dear Navdeep
Kudos to you for raising issues which affect the larger mil community. As rightly pointed out, Art 33 is on a different note and hopefully we have a SC which will interpret the same in the right manner.
However what is disturbing is the lack of absolute knowledge about various issuesby our people . We are Jack of All Trades and masters of none. However this very same quality should enable us to take professional advice, weigh it and then act. As you pointed out in your subsequent blog, it is indeed painful to see the least no of comments on issues affecting all of us and numerous on personal issues. Unfortunately, somewhere people must have read that Art 33 exists. But then they havent understood the spirit of the constitution. Art 33 only restricts certain fundamental rights which will affect the day to day functioning of the Army on active duty. This interpretation to suit self serving ends will not pass muster in the first instance. Unfortunately, there are instances galore where interpretations are taking place in this manner.
The earlier our personnel understand that all their actions are liable for public scrutiny, the better we will become. A case in parallel is the US system, where, very pointed and detailed questions are raised about the functioning of the forces.
What emerges here in our system is lack of depth in analysis, of which a case in point is the current plea in SC by the MOD.
It seems to be a case of over interpreting a statute. And where do the ex Servicemen and their families fit in Art 33. Eminently laughable.
As for the other issue of restricting appeal to only SC in case of AFT decisions, thanks for educating us that appeal to SC lies only if there is a larger public interest involved. What about gross miscarriage of justice ? Does it not qualify. Agreed that it is a matter of interpretation, but needs to be checked. I bow to your knowledge on the subject as you are a practicing Advocate. So we need to build opinion on this topic. Actually, if a AFT decision is to be challenged, why cant a larger bench at HC look into it. The logic of SC was that since Judge or retd Judge of HC is looking into the matter , appeal can only be at SC, thereby helping in declogging the system. But it may be worth while to see as to how many appeals have been filed by the system vis a vis the ones filed by aggrieved. You may be able to throw some light on it.
Thanks once again for keeping us enlightened.

Anonymous said...

This is an absolute shocker sir. But please tell me, can't the Supreme Court take suo motu cognizance of such issues that curtail basic / fundamental rights and are plainly discriminatory? Then why was such a case admitted in the first place? And more importantly, is there a way out or does the future actually spell doom?

pawan said...

Dear Navdeep,
the supreme court verdict will actually affect the Lawyers more than the litigants. Most of the genuine cases will definitely get redressed at AFT level. WE must strengten the AFT by taking up the case for having increased bench strength of retired High Court Judges of impeccable Credentials.

Since AFT verdicts cannot be challenged in High Courts there is all the more reason to make AFT independent of MoD and placed directly under Supreme COurt.

Let us all make a fresh case for granting autonomy to AFT to ensure bias free verdicts in the larger interest of the uniformed forces.

devinder kohli said...

I feel that the information is eye awakening.

Anil Makam said...

Maj Navdeep Sir,
I Sub maj M Ramachandraiah Retd in 2002 after completing 27 years of service . Could I get arrears being x gp Sub maj ? I approached DPDO authorities but it revealed that no Sub Majs are getting arrears . I would like to know wether we are effected or not?
Thank you Sir