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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.
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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.


18 comments:

dattatreyahg said...

Thank you,Navdeep for the first step towards Public Debate.

Dr N K Vashisht said...

qudos Navdeep

Natarajan V said...

Maj NS ji,
Excellent and commendable!. Hope the portrayal opens the eyes of the concerned and something better ensues ....TIME is the answer.....
VN

Anonymous said...

Dear sir,
Thank you so much for the great effort put by you to to tell the defense fraternity that how they are being cheated and denied justice by the Whole nation including the judiciary.

Jai said...

Dear Maj Navdeep,

I am sure many of the followers of this blog would be interested in knowing the reason for such an order by The Honourable SC. After all there must have been some logic presented to the judges who have passed this order. An understanding of the logic which caused the Apex Court to pass such an order would enable us to understand the issue in its entirety. With your knowledge of the law could you please explain this aspect.

Also is there any scope for getting the apex court to rescind this order by some kind of petition? If so I am sure many of us would be willing contributors to the legal expenses involved in filing such a petition.

Mange Panghal said...

Major Panghal said...
Dear Major Navdeep,
Thanks a lot for your efforts to wake up, particularly ESM and their families from slumber. We need concerted efforts to correct the grave injustice, particularly by ESM league, associations, organizations.

With your kind efforts situation is bound to be corrected.

With best wishes and regards.

DEV said...

This is a serious setback to the service personnel, veterans and dependents. Rather a system with out AFT where aggrieved could approach the nearby court and also can make appeals through normal judicial hierarchy would have been a better choice. If any one is appealing against the present judgement I would glad to be a party to join so as to restore the fundamental right to the armed forces personnel .

AMC DOCTOR said...

Dear Sir,
Well written Sir.Hope this will be an eye opener to the higher authorities.AFTs are constituted to deny the rights of armed forces personnel.If they give a verdict in favorable to us.government is not willing to grant it.In any way AFT is becoming a dead end to us.

DS Shishodia said...

Dear Major, You are strength of military man. You have been working so hard for three services, serving / retired persons benefits.

Anonymous said...

AFT JUDGEMENTS ARE NOT IMPLEMENTED BY THE AUTHORITIES IN RIGHT SPIRIT.

Alok Asthana said...

Nothing surprising in this at all. Indian governments have always been anti-armed forces and the people of India simply do not care. Both (govts and people) find the armed forces an extremely useful and cheap instrument which can ask its members to die for lame causes espoused by corrupt leaders, distribute food in flood hit areas, do the job of administration in border areas, treat civilian casualties, guide people out if earthquake zones and still have no bargaining power. Where do you get such a servant these days? How I wish our forces had behaved like the Pak army where they at least extract reasonable benefits from the state for a big payout like dying. Our forces die for the ungrateful, and do so at no cost. That is being stupid.

Anonymous said...

The Armed Forces have always known to be harsh to their own people. The Fauji brass are myopic and self centred. They have no idea how to do things unless they are led by the nose ring by suppliers, vendors and their ilk.
To expect them to give a fair deal to their suppressed people is futile.

Leslie Menezes said...

Dear Navdeep, Your blog is definitely doing yeoman public service for the yet unaware defence community. What do we do to make it a public interest issue besides PIL?

Leslie Menezes said...

A retrograde order for all the veterans. Unfortunate that SC which has upheld the causes of defence veterans have overlooked their basic rights exposing them to serious future anomalies. This only SC can rectify.

akhil said...

@NAVDEEP,
Hon'able PM himself has said money spent on 100 odd Tribunals ,had it been spent on High courts or supreme court it could have served a better purpose.

HARDEV said...

While limiting the judicial remedies to AFT & blocking all other avenues of natural justice is a shortsighted approach.

The latest Notification of New Law on appointment of Judges, ending the collegium system that stood the test of time & successive Chief Justices of India have expressed satisfaction. This is not the 1st time but the latest attempt by ruling party to trying to subordinate the Judiciary that otherwise supposed to be one of the three independent arms in the democracy. Nevertheless earlier attempt by the ruling Govt head were made mostly from emergency rule onwards to gather more power to rule any how.
The preference for court of Justice but having a final say in appointment of judges to subordinate, can not prevent independent functioning, as earlier attempt proved a mirage. Thankfully qualified Advocates can only be appointed from within the judiciary(not outsiders.
JWO Hardev Singh

Anonymous said...

can we move to repeal this order

vivek kohar said...

Generals to restrict to matters military and everyone else can babble about matter military. Which world are we living in? The world is flat...take the criticism from the prism of common man.