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Wednesday, May 27, 2015

News you can use

Implementation of Orders of the Armed Forces Tribunal
There is some movement on the implementation of orders of the Armed Forces Tribunal (AFT). The Ministry of Defence has recently issued implementation instructions for about 249 cases related to disabled and war disabled soldiers. More on the subject can be read through this news-report. Another report can be accessed here.

Appeals filed by the Ministry of Defence against pensions of Honorary Naib Subedars and Honorary Commissioned Officers
Regular readers would be aware of the sordid saga concerning the pensions of Honorary Naib Subedars earlier written about on this blog in June 2013. The Supreme Court has apparently rejected the second round of appeals filed by the Ministry of Defence against such pensioners on 20 May 2015. More information would be provided when the order is made available. The en masse appeals filed against Honorary Captains and Honorary Lieutenants also reportedly met the same fate on 06 May 2015.

Landmark judgement by the Patna High Court on pensions
Just as is the case of pay of serving employees, the Patna High Court in a landmark decision has held that pensions of government employees retiring from senior grades cannot be lower than those retiring from junior grades, irrespective of the date of retirement. In a lucid, sharp and crisp judgement, the Division Bench of the High Court has set aside the decision of the Central Administrative Tribunal which had denied relief to pensioners. The decision can be accessed and downloaded by clicking here.

Letter issued ostensibly for simplification of procedure for permanently disabled children/siblings and dependant parents of service personnel and pensioners
A letter on the above mentioned subject has been issued by the Department of Ex-Servicemen Welfare as a part of simplification process. I would not say more and readers can peruse the said letter in order to fathom how much the process stands simplified. 

Sunday, May 17, 2015

More Chapters of wisdom read out to the system by the Supreme Court for disabled soldiers. But then, who cares!!!

At times we redundantly expect the officialdom to stand behind our uniformed men and women or to move heaven and earth to ensure the grant of benefits to veterans in order to guarantee a life of minimum dignity. But then this shall remain a dream it seems, forever.

Again, the Supreme Court has ruled on an issue which the officialdom itself should have addressed. While adjudicating an appeal filed by the Army and the Ministry of Defence against a poor disabled soldier boarded out of the Jammu & Kashmir Rifles after branding his disability 'neither attributable to, nor aggravated by military service' and who was finally granted his disability pension by the J&K High Court, the Supreme Court has reminded the system that approach towards disabilities arising in military service cannot be unpragmatic or insensitive and that even constitutional or genetic disabilities can very much get aggravated by rigours of military life. Dismissing the appeal, the Supreme Court has held the soldier entitled to disability pension even though he was boarded out soon after his training.

As discussed earlier, I fail to understand as to why are we becoming the masters of our own defeat. The whole approach towards litigation is misdirected. Litigation in the defence services is not based on legal principles but on ego trips. There is unethical pressure on officers handling litigation to ‘win cases’. Of course, every party to a litigation has the right to prosecute and defend its case, as the case may be, but then the first and foremost duty should be to assist Courts in arriving at justice and not to apply a hook or crook approach by misleading judicial fora or hiding facts or not even conceding cases which are squarely covered by existing policies or judicial pronouncements. Let me give another recent example. The Punjab & Haryana High Court had last year rendered a landmark decision on disability benefits to personnel disabled while on authorized leave. The decision was hailed in military circles and also appreciated by the official establishment. It was also communicated to the Raksha Mantri who is personally looking into the matter. The issue was also progressively raised before the Seventh Central Pay Commission. However shockingly, without any intimation to the Ministry of Defence or the Raksha Mantri, elements of the Army filed a review in the said case before the High Court citing that one of the notifications quoted by the High Court in the judgement had been superseded and that the Counsel for the Ministry/Army did not know about the supersession of the notification at the time of arguments. The reality however was that firstly, the said notification made no material difference to the outcome of the case since the judgement had been rendered by the High Court on multiple reasons and logic and this was only one of the ancillary points discussed. Secondly, the same point of review on the pretext of the supersession of the notification had been raised by the Ministry and the Army before the Supreme Court in a review petition in another case which was dismissed by the Apex Court in January 2014. Hence now a false affidavit had been filed before the High Court that the Army came to know about the supersession of the notification in 2015 whereas the same point had been already raised before the Supreme Court way back in 2014 and rejected too!

This raises various questions about our functioning- Whether some elements of the uniformed community can show undue exuberance in filing such reviews and appeals without due information to the Ministry or at least the Chief and the AG, fully knowing that the issue had been projected for resolution by the Services themselves to the Pay Commission? Whether a false affidavit on behalf of the Ministry/Chief can be filed locally without information to the concerned authorities more so since it is in direct contradiction of an issue taken up for resolution at the highest level? If on one hand the Pay Commission Cells are tirelessly working for getting soldiers and veterans their due benefits, can another branch on the other hand present diametrically opposite damaging and self-defeating views before Courts stating that benefits should not be granted to disabled soldiers? Whether false affidavits regarding lack of knowledge be submitted in a High Court knowing fully well that the same Review Petition on exactly the same point was dismissed by the Supreme Court way back in January 2014? Whether a hyper-technical approach to litigation is desirable in such cases wherein it is much known that the issue being canvassed before a Court has no relevance and makes no material difference to the final judgment rendered by the Court which was rendered on a variety of points? Whether the responsibility of a legal branch of an organisation is to kill the benefits of its own personnel and oppose all that is raised in Courts or uphold the principles of law in an ethical and humane manner? Whether undue pressure by higher-ups to ‘win cases’ is leading to unethical practices?

These are questions which were not asked in the times of yore but the times are changing and we must make the system answerable for the actions it takes against the interests of the veteran community and also of those who require our utmost care- our disabled soldiers and widows.

We refuse to stand up before notings prepared by Section Officer level officials in the offices of Financial Advisors but willingly file cases against our own disabled soldiers without taking a stand! I would like to remind readers again that General VK Singh had refused to file an appeal against Lt Gen Vijay Oberoi’s war injury pension case and ultimately it was the Ministry of Defence which had to initiate the process all alone. Today the MoD is on record saying that it is the Army HQ, after consultation with JAG and Legal Advisor (Defence), which files appeals, but the Army HQ states that it does so on the instructions of the MoD. Whatever may be the truth, the ultimate sufferers are our own people, especially those of the lower ranks, and their families. It was painful for me once to hear a Bench questioning the capability of the establishment to look after the morale of troops in operations when en masse appeals were being filed against their sundry benefits, sometimes amounting to a few hundred rupees per month. 

What I have written above is not to pinprick but just to show a mirror to all of us and should hence be taken in the right spirit. This once again reminds me of some lines that I wrote not many months ago, which resonate in my mind every time I am made to undergo the agony of dealing with such cases:

“...It is not that I do not empathize with the subject, but the last few years have resulted in an extreme form of dissatisfaction when I have discovered that while we keep fighting for the rights of our service-members and veterans, many of those in uniform tasked with protecting those very rights, incorrigibly stand in opposition of these causes. Believe me, it is a sad sight to see officers in uniform taking stands opposite of what we all stand for- justice and welfare for the military community, restoration of status, rights and privileges of our serving personnel. Yes, it is distressing and disheartening to see uniformed officers take hyper-technical objections and laugh and chuckle and rejoice on dismissal of rightful and genuine claims of soldiers, disabled veterans and widows in Courts forgetting that their prime duty is to assist the Courts or the system at arriving at justice and not to bludgeon the prayers of such people by hook or crook.
If some serving personnel of today are not wanting to reclaim their rights or to live a life of dignity with their equitable benefits guaranteed by law after retirement, if they want to only file appeals against decisions of Courts rendered in their favour rather than sounding the clarion call for change of anomalous and unjust policies, if they want to celebrate their own defeat, so be it.
It is tiresome to bang one’s head against a barricade that divides the just from the unjust...”

Déjà vu.

Thursday, May 7, 2015

Op-ed: Excessive Tribunalisation- the pitfalls of parallel extra-judicial super-courts!

My opinion piece on Excessive Tribunalisation in India, published today in Moneylife, is reproduced below:


Navdeep Singh

Emergency it was when the concept of Tribunalisation was pushed into the national consciousness through the 42nd Amendment. The idea was clear for the rulers of that day- tacit executive control over judicial functioning through quasi-judicial bodies piggybacking on the bogey that these shall relieve regular Courts of their burden.

Notwithstanding the repeated red-flagging by the SC, excessive Tribunalisation, with the eagerness of the executive to give it impetus, slowly and surely threatens the judicial fabric of our democracy with the creation of parallel extra-judicial Super-Courts which are now dangerously hovering over the citizenry with a life of their own without being effectively amenable to the regular judicial set-up of the Westminster model, a fright we must no longer ignore.  

The recent statement of the PM over functioning of Tribunals vis-a-vis regular Courts rightly created a lot of buzz and was reflective of the concerns of jurists, lawyers, litigants and bar associations over the functioning of Tribunals, which, in their present form, do not inspire confidence of stakeholders and end up as post-retirement sinecures or a case of ‘dangling carrots’ rather than the noble aim of rendering justice in the form of public service to the community.

To take a few examples, many Tribunals function under those very ministries against whom they have to pass orders. The Debt Recovery Tribunal and the Debt Recovery Appellate Tribunal function under the Ministry of Finance, the Armed Forces Tribunal functions under the Ministry of Defence while the Telecom Disputes Settlement and Appellate Tribunal functions under the Ministry of Communications & IT. These Ministries not only control Tribunals with invisible strings but also with tangibles such as infrastructure, finance, salaries and staff along with the rule-making power. Secretaries of the same Ministries (the opposite parties in litigation) sit in the selection, reappointment and inquiry panels of Adjudicating Members of the Tribunals. Continual directions by even Constitution Benches of the SC to place the control of Tribunals under the Ministry of Law & Justice have not yielded any positive change. Ministries refuse to part with their fiefdoms, a situation diametrically opposite not only to our Constitutional norm of separation of power but also against the concept of judicial independence recorded in Article 14 of the International Covenant on Civil and Political Rights. It therefore comes as no surprise that Courts in many nations have resisted the encroachment of judicial functions by executive-controlled bodies- in the US (Northern Pipleline case, 1982), Canada (Residential Tenancies Act case, 1981), Australia (Harry Brandy case, 1995) and even in Pakistan (Riaz-ul-Haq case, 2012).

It should concern all of us that while our fiercely independent Constitutional High Courts have steadfastly protected the rights of citizens from official tyranny, the shape of Tribunalisation is stealthily being moulded in a manner to blunt out the power of our HCs conferred by Articles 226 and 227 of the Constitution. For many Tribunals, illusory and non-vested appeals are being provided directly to the SC by circumventing HCs to ensure that the latter do not maintain a check on the functioning of such Tribunals by keeping them within the confines of law. Even provisions of direct appeals to the SC are designed in such a fashion that they are not maintainable in most cases. Some Tribunals such as the Armed Forces Tribunal have become the first and the last court for litigants and all-pervasive bodies neither amenable to HCs nor to the SC and without a vested right of judicial review since a direct appeal has been provided to the SC only in limited cases where there is the exceptional involvement of a “point of law of general public importance”. Hence contrary to what is projected, some Tribunals have left litigants remediless and justice made so inaccessible and unaffordable that affected parties are expected to rush to the highest Court of the land in Delhi even for petty and routine matters. Both law-makers and law-interpreters need to ponder over such deleterious consequences.

The PM’s cue should have ideally generated a call for strengthening of our real Courts and reducing the length and breadth of Tribunalisation except in highly technical matters involving precise expertise. Reduction of burden on Courts cannot be at the cost of independence of judicial functioning by creating an analogous quasi-judicial hierarchy functioning under the executive.

So what can be the way out? In order to restore public faith, the following steps appear worthy:

Though best avoided, if a pressing need is felt then Tribunals may only be retained as replacement of the jurisdiction of Courts of first instance in specialised subjects and fully amenable to the writ jurisdiction of High Courts on lines of the Central Administrative Tribunal.

The correct function of Tribunals should remain to supplement and filter out cases for the superior judiciary and not to replace it. Other than highly technical matters, Tribunals can at best function as fact-returning bodies of experts leaving adjudication of disputes to regular Courts.

Tribunals may not be allowed to be seen as post-retirement sinecures. An orientation capsule be introduced for non-Judicial members.

Tribunals should be placed under an independent body or commission, and till that ideal objective is achieved, under the Ministry of Law & Justice as an interim measure, on the lines of the Income Tax Appellate Tribunal, and may not be allowed to function under parent Ministries. Bureaucrats of the said Ministries should never be made a part of selection process for Members of Tribunals.

Members of Tribunals should be provided the best possible facilities but not from the Ministries against which they have to pass orders. Members should be given the security of tenure but without the system of reappointment.

Since “reduction of burden” on Courts and “quicker dispensation of justice” was ostensibly the aim of Tribunalisation, a stringent provision for time-bound redressal must be incorporated in all statutes dealing with Tribunals.

The striking down of the National Tax Tribunal last year has raised hopes that any attempt to undermine the independence of judicial functioning would not be allowed to prevail in our democracy. While stakeholders hope that the PM’s sentiments get translated into actual action, the system needs to wake up to the reality that a litigant has more faith in independent adjudicating Courts with an expedient cost-effective mechanism of judicial review with Constitutional Courts rather than being stuck in a chaotic labyrinth functioning under the thumb of the opposite party reflecting the worst kind of conflict of interest, a peril we must fervidly resist.