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.
18 comments:
Thank you,Navdeep for the first step towards Public Debate.
qudos Navdeep
Maj NS ji,
Excellent and commendable!. Hope the portrayal opens the eyes of the concerned and something better ensues ....TIME is the answer.....
VN
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.
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.
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.
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 .
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.
Dear Major, You are strength of military man. You have been working so hard for three services, serving / retired persons benefits.
AFT JUDGEMENTS ARE NOT IMPLEMENTED BY THE AUTHORITIES IN RIGHT SPIRIT.
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.
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.
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?
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.
@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.
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
can we move to repeal this order
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.
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