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Monday, April 27, 2015

Compilation of all reports and opinions on the decision of the Supreme Court related to challenges to orders passed by the Armed Forces Tribunal

Since it is one of the biggest jolts to the basic fundamental rights of defence personnel, veterans and their families, I am compiling all major reports and opinions on the subject of the recent Supreme Court decision related to challenges to the orders of the Armed Forces Tribunal. Those who were laughingly thinking that the decision came as a ‘welfare measure’ for the military community, please do not forget that the decision has in fact come on a plea of the Ministry of Defence against judgements of High Courts which had ruled in favour of defence personnel and veterans.

There is still time, go through the databank below and Wake up!

My post on the fallouts of the decision

Tuesday, April 21, 2015

Disability and War Injury pension enhanced based on the fitment of minimum of pay within pay-band rather than minimum of pay-band itself

Five months after similar orders were issued for civilians, the Ministry of Defence has enhanced the disability and war injury elements of disabled and war disabled defence pensioners based on the fitment of minimum of pay within the pay-band rather than the minimum of pay-band itself.

The Ministry of Defence letter can be downloaded by clicking here.

The earlier post of November 2014 related to similar enhancement for civilians can be accessed by clicking here for a greater understanding of the subject.

Of course, this benefit has been granted only with effect from 24 September 2012 and not from 01 January 2006 despite the fact that the Supreme Court has upheld judicial decisions granting the benefit of such enhancement in pensions of civil and military pensioners from 01 January 2006.

Much credit goes to Disabled War Veterans India (DIWAVE) for thoroughly following this through. 

Monday, April 13, 2015

General, with all due respect, please stick to military matters.....

Lt Gen Harwant Singh (Retired), whom I hold in high esteem, has today published an article in the Hindustan Times (Page 5, Chandigarh Edition), waxing eloquent about the Armed Forces Tribunal (AFT) and that how appeals from it should lie to the Supreme Court, and in the bargain also making some uncharitable comments about our Courts and lawyers.

What bewilders me is the fact that retired officers who have no domain knowledge about law, litigation or the judicial system and also are not in touch with the pain and agony of the veteran or the military widow on the street, are writing opinions by spilling over to fields which they are not even familiar with.

Now, let me take up the main points raised by him, one by one:

Civil Courts’ practice of dragging on cases endlessly giving the example of Hashimpura killings

The General does not seem to understand the basic norm that the pendency of criminal cases or civil matters such as property disputes cannot be compared with service matters. While the former require collection and appreciation of evidence and multiple appellate jurisdiction, the latter emanate from Original jurisdiction of Courts and are not at par. Let us here, at the very outset, kill this myth about delay by Courts in a matter which equally affects civilians and military pensioners and which was taken up on both sides in an analogous manner- the recent removal of the pensionary anomalies of the 6th Central Pay Commission w.e.f 01 Jan 2006 rather than 24 Sept 2012. The same issue was taken up by both civilian and military pensioners. While the first decision in case of military pensioners was rendered by the Armed Forces Tribunal on 14-09-2010, the finality was attained by way of dismissal of the civil appeal by the Supreme Court on 17-03-2015. On the civil side, the Central Administrative Tribunal (CAT) had rendered the decision on 01-11-2011 and even after adjudication by the High Court, the SLP filed by the Govt was dismissed by the Supreme Court on 29-07-2013. Which process was quicker despite involvement of the High Court?

Date of Decision for civilian pensioners
Date of Decision for military pensioners
CAT: 01-11-2011
AFT: 14-09-2010
Decision by High Court: 2013

Decision by Supreme Court: 29-07-2013
Decision by Supreme Court: 17-03-2015
Status: Implemented for Petitioners
Status: Not implemented for Petitioners

Civil Courts suffer from lack of knowledge of working of defence services, their ethos, discipline etc

What a joke!

If such an argument were to be accepted, then there should be no Courts at all for any field and we should have only specialized departmental bodies in all areas of law. By this logic, a judge cannot comment on a criminal matter since he/she does not have knowledge of forensic science, a judge should not preside over a matter involving taxation since he/she does not have knowledge of taxation, and he/she should not preside over any service matter of any department since he/she suffers from lack of knowledge of working of that particular department. It would also be beneficial for the General to read up a little more and realize that in the United Kingdom, the Judge Advocate General (who, unlike the JAG in India, is an actual Judge adjudicating military matters) is a Civilian functioning under the Ministry of Law and Justice and this ‘lack of knowledge’ theory does not function in any democracy. The same logic was expressed for tax matters by the government when it created the National Tax Tribunal but the said Tribunal was declared unconstitutional by the Supreme Court last year. Perhaps the General also does not realize that our High Courts since independence have stood as a rock behind the rights of military personnel, veterans and widows and have rendered multiple decisions which have affected the quality of life and the basic existence of the military community.  

AFT was constituted after pressure was built up through a series of articles in the press

Who would tell the good General that the creation of AFT has nothing to do with ‘articles in the press’. The AFT was created as per the observations of the Supreme Court in Lt Col Prithi Pal Singh Bedi’s case and was only supposed to function as an Appellate body for Courts-Martial and not for service matters. It was also supposed to be an ‘independent’ body manned by civilians. However, what came about by way of a poorly drafted Act by our own was that it was ultimately (wrongly) constituted both for appeals from Courts-Martial and also for service matters and was incepted under the dependence of the Ministry of Defence and that too with a Bench comprising a retired Judge and a retired General.

Senior defence officers were co-opted to keep the AFT alive to peculiar conditions of the defence services

While this argument of the General looks attractive from the outside, the presence of retired officers results in lack of objectivity from the viewpoint of a litigant. While many retired officers who are members of the AFT have no doubt rendered an excellent service, there have been many instances wherein their subjective analysis (being from within the system) has hampered the process of law. A litigant before a Tribunal may feel (rightly or wrongly) that a person who himself was a part of the same system- the action of which is being challenged, would not be able to be objective. It may simply be an incorrect perception at times, but as the age old saying goes, “justice should not only be done but also seem to have been done”.

One of the High Courts ruled that verdicts of AFT could be contested in High Courts defeating the very purpose of AFT and that this would further delay matters

The General does not seem to know that High Courts were entertaining challenges to AFT verdicts rendered against military personnel, veterans, disabled soldiers and widows based on the Seven Judge Constitution Bench decision of the Supreme Court in L Chandra Kumar’s case wherein it was held that direct appeals from decisions of Tribunals would not lie to the Supreme Court and would have to be filtered through a Division Bench of the High Court. The General does not analyze that the Supreme Court is very slow in interfering in challenges arising out of decisions rendered by Division Benches of High Courts which are Constitutional Courts while the same is not so in cases of decisions by Tribunals which are merely departmental quasi-judicial bodies. If the system is functioning well for the CAT, it would function well for the AFT too. The General says that almost 2000 decisions of the AFT have not been implemented by the MoD. Well, he is wrong, the number is more than 5000 and civilians do not face the same problem at all with their jurisdiction vested in the Administrative Tribunals and the High Courts. And the General perhaps does not know again that this non-implementation was taken cognizance of by the High Court when the AFT failed to take coercive action against the MoD. 

Ruling of the SC has come to the rescue of veterans but has not gone down well with lawyers

Firstly, the General’s statement about lawyers is detestable and distasteful since many of us have worked tirelessly to reduce litigation against the military community and also to ensure that justice becomes accessible for the military community, especially of the lower ranks. There are countless lawyers who have rendered pro bono service for downtrodden litigants. The General should stop worrying about the monetary aspects of the profession of law but should instead worry about the elimination of the rights of litigants for accessible and affordable justice. Does the General have an idea about the cost of litigation in the Supreme Court? Does the general know that this ruling simply means that the MoD would continue filing en masse appeals in the Supreme Court alleging ‘point of law of general public importance’ in every decision rendered in favour of litigants while the litigants would have no forum to challenge verdicts rendered against them? Does he know that only the army of Govt lawyers in the Supreme Court stands to gain by this and not the other ‘battery of lawyers’ as stated by him?

Secondly, the General should understand that this ruling has made justice impossible and totally out of the reach of the military community since the AFT now becomes the first and the last court and an appeal cannot be filed before the Supreme Court unless the case is so exceptional that it involves a “point of law of general public importance”. Therefore a person who loses a case in the AFT has nowhere to go. There were hundreds of cases where the AFT had decided against defence personnel, disabled soldiers and widows and the decisions were reversed by the High Courts which granted relief to them, the General should inform us whether he would like to take up the role of providing relief and benefits to all those who lose in the AFT and are barred by the latest decision from approaching any forum for relief, or sponsoring the cost of litigation in the Supreme Court which again is not as a matter of right?

To take some examples,

I can point out hundreds of more cases, but I am sure the good General, who is happy to remain a lesser citizen as compared to the common person on the street, would be incapable of rendering any assistance to them except writing another article on a subject the complexity of which he cannot fully analyze. The pain, anguish and frustration of a litigant who does not have a right to challenge a verdict rendered against him/her cannot be fathomed by writing in papers by you, I or the General, perhaps this is the reason why many military veteran bodies all over the country have already written to the Prime Minister and the Law Minister expressing how they have been rendered remediless as compared to other citizens of our country. 

The hallmark of a democracy is an independent judiciary, and litigants and the public at large have utmost trust in our Constitutional Courts, but the General feels that it would be better if litigants remain stuck without any vested right of judicial review with a departmental quasi-judicial body functioning under the very thumb of the opposite party in every litigation- the Ministry of Defence, and which does not even possess the basic power of civil contempt. It was therefore not surprising that even the Prime Minster has expressed more faith in real Courts than Tribunals.

General, with all due respect, please stick to military matters.

Tuesday, April 7, 2015

Op-ed in Indian Express today, 07th April 2015: Creating lesser citizens

My op-ed in the Indian Express today (07th April 2015) is reproduced below. The web-version can be accessed by clicking here and the e-paper version is available here.

Creating lesser citizens

Supreme Court order declaring that High Courts will not entertain challenges to orders of the Armed Forces Tribunal curtails military litigants’ rights to justice

Navdeep Singh

Away from the gaze of the mainstream and tumult over Section 66A, on 11th March this year, defence personnel, military veterans and their families were declared lesser citizens- lesser than what they already were. On that day, based on an appeal filed by the last regime but prosecuted by the current one, the Supreme Court declared that High Courts would not entertain challenges to the orders of the Armed Forces Tribunal (AFT) thereby effectively making the said Tribunal the first and the last court for litigants, since, according to provisions of the AFT Act, an appeal anyway does not lie even with the Supreme Court as a matter of right unless there is the exceptional involvement of a “point of law of general public importance”.

The Supreme Court, based on self-deprecating arguments put forth by the Army and the Defence Ministry, also adverted to Article 33 of the Constitution which states that fundamental rights of defence personnel can be restricted or abrogated. Needless to state, from the celebrated Kesavananda Bharati’s case onwards, it is well appreciated that restrictions are limited to maintenance of discipline while performing duties, and extend to other uniformed forces too. Using the plank of Article 33 to deny the right to access justice to litigants hence was an outright overstretch. Even otherwise, majority of litigants before the AFT are not defence personnel but ex-servicemen and their families fighting for minor issues such as disability benefits, correct fixation of pension et al, issues that are personal and definitely not meeting the stringent criterion of ‘public importance’ so as to invoke the highest Court of the land which is already overburdened and not enjoying the luxury of time for constitutional questions.

Lamentably, what the officialdom sadistically succeeded in attaining is that justice becomes inaccessible and unaffordable. Imagine a poor widow in Kerala engaging a lawyer in the Supreme Court for challenging an AFT order denying her a few hundred rupees of benefits and then attempting to plead that her appeal involves a ‘point of law of general public importance’. It is yet another story that this is one of the reasons why direct appeals to Supreme Court were frowned upon by a Seven Judge Constitution Bench in L Chandra Kumar’s case.

A minority of those connected with the officialdom was trying to sell this disaster to the gullible defence community as a celebration portraying ‘quick justice’ and the ‘elimination’ of one layer. Needless to state, this has not eliminated one layer but eliminated all layers altogether unless one can prove ‘public importance’ with deep pockets to afford litigation in the Supreme Court. Shortening of judicial process cannot be at the cost of precious rights of the citizenry and the value of judicial review can only be fathomed through the eye of a losing litigant, not by the system which has an army of lawyers at its disposal to mindlessly file appeals in the Supreme Court at taxpayers’ expense. A multi-tier approach to judicial redressal is the hallmark of every democracy and had ‘elimination’ of layers been a profound need then we would have had a system of appeals from the lowest court of Junior Division Civil Judge directly to the Supreme Court. Central Government employees and retirees aggrieved by orders of the Central Administrative Tribunal have a right of judicial review before the High Court and then the Supreme Court whereas the system has called for snatching similar rights from defence employees, ex-servicemen and even their family members.

The writ jurisdiction of our High Courts is designed to keep authorities and tribunals within the bounds and confines of law and to keep a check on their recklessness and rashness. With all due respect to the AFT and its good work, it functions under the same Defence Ministry against which it is supposed to pass orders, the Defence Secretary against whom decisions are to be rendered sits on the selection (and reappointment) panel of AFT Members and also in the investigation committee to probe complaints, if any, received against them, and hence a vested right of judicial review by jurisdictional High Courts assumes utmost importance. The AFT does not even possess usual trappings of a court, including powers of civil contempt or a procedure to get its orders implemented. It therefore came as no surprise just two days after the ruling that the Supreme Court, in another case, reiterated the known position that Tribunals are inferior to High Courts and that judicial review by High Courts is a part of the basic structure of the Constitution which cannot even be taken away by a Constitutional amendment.

This decision, based on the plea of the Defence Ministry, has rendered litigants remediless and without any vested right of judicial redress- the only such instance in constitutional history in analogous situations. Till the issue is revisited by a larger bench of the Supreme Court or the lynchpin Sections repealed, litigants shall continue to languish in lower confines compared to the rights guaranteed to other citizens, a situation neither warranted nor envisaged by the framers of the blueprint of our democracy- the Constitution of India.

The author is a High Court lawyer and founder President of the AFT Bar Association and also a member of the International Society for Military Law and the Law of War at Brussels.