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Wednesday, September 30, 2015

Oped in “Business Standard” on the lack of judicial review over orders of the Armed Forces Tribunal

I am glad that despite the very shallow understanding of this cataclysm by many serving and retired members of the military community and the harm it has caused to the fundamental rights of the generations to come, this issue has gained the attention that it deserves.

Below reproduced is Col Ajai Shukla’s detailed analysis in Business Standard on the subject of lack of judicial review of the orders of the Armed Forces Tribunal:

Dead IAF pilot's father writes to PM

Gurbax Singh Dhindsa has underlined the fact that military personnel have little recourse to justice in higher courts

Ajai Shukla, September 29, 2015

In arguing how difficult are the terms and conditions of military service, leaders of the "one rank, one pay" (OROP) agitation have highlighted curtailment of fundamental rights of military personnel (under Article 33 of the Constitution); their subjection to harsh disciplinary codes (Army, Navy, Air Force Acts); prolonged separation from families; and the vastly higher risk of death or injury whilst on duty.

Now Gurbax Singh Dhindsa, the father of a dead Indian Air Force pilot, has underlined the fact that military personnel have little recourse to justice in higher courts.

Mr Dhindsa makes this point in a letter to Prime Minister Narendra Modi, Defence Minister Manohar Parrikar and Law Minister DV Sadanand Gowda. His son, Flying Officer GS Dhindsa, had died during the Kargil conflict, when his MiG-21BIS fighter crashed while taking off from Srinagar on an operational mission on August 18, 1999. Mr Dhindsa's letter recounts the difficulties he faced in collecting the benefits due to him as the pilot's next of kin. Like many ex-servicemen who confront such delays, he took the government to court for what should have been paid to him routinely, and with gratitude and honour. Last month, the Armed Forces Tribunal (AFT) - the military's departmental tribunal - ordered the Defence Accounts Department to pay Mr Dhindsa his dead son's ex-gratia payment, pension and other dues that had been held back illegally for 16 years. Inexplicably, the AFT failed to order payment of interest.

When Mr Dhindsa decided to move the high court for grant of interest, he learned that he could not. Article 31 of the Armed Forces Tribunal Act rules that AFT judgments cannot be challenged in the high court. Nor can serving defence personnel or veterans or their families petition the Supreme Court unless the case involves a "point of law of general public importance". Earlier this year, on March 11, ruling on a plea filed by the previous United Progressive Alliance (UPA) government, the Supreme Court endorsed this retrograde provision.

The Supreme Court, in a separate case, is now reconsidering this judgment, which has effectively left defence personnel, veterans and families without remedy after an AFT decision. Earlier a seven-judge Constitution Bench, in L Chandra Kumar versus Union of India, had deemed "unconstitutional" a ruling that prevented High Court review of rulings of the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SATs). Yet, for now, military litigants have no recourse beyond the AFT.

Mr Dhindsa writes: "Of course, civilian employees or their families have no such bar. In case I had been the father of a civilian employee denied pension, I could have simply approached the Central Administrative Tribunal (CAT) and if dissatisfied, the high court and if still dissatisfied the Supreme Court. But since I am the father of a military martyr I cannot approach the high court or even the Supreme Court unless I have a case of public importance."

He goes on: "Even if an appeal was provided as a matter of right to the Supreme Court from each case of the AFT, can you expect defence personnel or their families from the lower socio-economic strata to approach the Supreme Court? Can they afford litigation or even travel to the highest court of India?"

This question is especially relevant, given that the defence ministry's well-established legal strategy is to appeal at every level against every court decision that goes against the government, regardless of the merits of the case. That obliges the litigant, most often a poor villager living on his pension, to pay travel and lawyer fees that he cannot possibly afford. Meanwhile, the defence ministry uses taxpayer money to hire high-priced lawyers with the mandate to drag on cases endlessly until the litigant either dies or runs out of money.

Ironically, misinformed sections of the military welcomed the Supreme Court ruling, which they viewed as "quicker justice", stemming from the removal of one level of appeal. Says prominent military lawyer, Navdeep Singh: "Thankfully people are now realising that this judgment snatches away the precious fundamental right to approach the high court, which is available to every citizen. Under the guise of 'quicker justice', soldiers and veterans had been placed without a remedy against a tribunal's judgment. I am glad that the Supreme Court is revisiting the matter."

Even so, unless and until the apex court reconsiders its earlier judgment, Mr Dhindsa is left without recourse. His letter rhetorically asks: "When a civilian employee or his family member aggrieved by order of the Central Administrative Tribunal (CAT) has a fundamental right to approach the high court and then the Supreme Court, why should the same right be denied to me?"

"When a civilian employee or his family member has a right to a three tier judicial approach, why do I only have one tier? Do we lose our rights just because of joining the defence services rather than civilian jobs?"

"Which court should I approach against order of the AFT when my case (like 99.99% cases) does not involve any 'point of law of general public importance'?"

The National Democratic Alliance (NDA) government, and Mr Parrikar himself, have promised to end the practice of automatic appeals that wear down litigants, regardless of the merits of their cases. However, the defence ministry's department of ex-servicemen's welfare (ESW) scuttles all such attempts, and resentment is rising amongst ex-servicemen.

The AFT was born in August 2009, as a departmental judicial body for providing quick and affordable justice to soldiers, airmen and sailors governed respectively by the Indian Army Act, 1950, Indian Air Force Act, 1950 and the Navy Act, 1957. It rests on the foundations of the Armed Forces Tribunal Act, 2007 (hereafter, the Act), which envisions a military-oriented substitute for the high courts, with appeals addressed only to the Supreme Court, on matters of "general public importance". In 2011, the Delhi High Court ruled that litigants could not be deprived of judicial review in a high court, which the Constitution provided for. However, the Supreme Court struck down that order earlier this year.

There are also serious questions of conflict of interest, with the AFT operating under the defence ministry, which is the respondent in almost every case the AFT hears. The defence ministry argues the Act grants it the powers to make rules, appointments and administer the AFT. In fact, the Act grants those powers to the central government, while the Allocation of Business Rules makes the Ministry of Law and Justice (MOLJ) responsible for the "administration of justice".

There is a battle raging over control of the AFT. The Punjab & Haryana High Court has acknowledged this conflict of interest, directing in a judgment on November 20, 2012 that the AFT be "brought within the control of Department of Justice in the Ministry of Law & Justice." This judgment cites the aforementioned seven-judge Supreme Court ruling in L Chandra Kumar versus Union of India and R Gandhi versus Union of India, which direct departmental tribunals (such as the AFT) should all be brought under a "wholly independent agency" under the MoLJ, which must "try to ensure that the independence of the members of all such Tribunals is maintained."

In its Eighteenth Report, tabled in parliament on March 20, 2013, the Standing Committee on Defence has backed the setting up of a Central Tribunal Division under the MoLJ, which would exercise administrative control over the AFT, rather than the MoD. "The Committee are of the view that in order to build a strong and independent institution, this step will go a long way," says the report.

Reform of the AFT is essential for justice to be visibly served. It is to be hoped that Mr Dhindsa's letter draws the government's attention to this long overdue measure.


Dhoop said...

We have, in the past, read about this issue on this blog. If interests of serving personnel and veterans are best served by the ideas as expressed in the past, then ESM, as well as those in uniform, are fortunate that the issue is being addressed by people in the know, such as the blog-owner.

But there is a more basic need for protecting interests of stake-holders through a little more pro-active dissemination of information from blogs and web-sites, that would not be guidance and advice per se, but also not be just re-circulation of information, esp information of the kind that has already been stressed upon.

Before stake holders can arm themselves with requisite information, it'd be foolhardy for them to venture out and start some legal or administrative process on their own. Reliable sources of information, such as this blog, do, if they choose, offer views on ongoing issues, even on some of the views expressed in comments or tweets. Such views can provide a reasonable basis for affected stake-holders to take the next logical step in righting wrongs.

In many cases, due to an absence of engagement or elucidation, the affected personnel/veterans can not even get started on obtaining redress, approaching the High Court being far from their horizons. Enhancing such dissemination on old issues of anomalies, disparities and discrimination can provide a real boost to the cause of protecting ESM from languishing for years in a state of dues-denial.

Brig Anon said...

dear navdeep,

as you said we have an extremely limited understanding of such matters (maybe that is the reason that we dont question orders move ahead and get the job done). notwithstanding it is indeed a serious issue that the armed forces personnel are denied the right to review except in very few cases and that too from the supreme court.

perhaps it is time to start bringing people to understand the issue but then the question atrises who is to be sensitised? the serving people cant intervene as they are ignorant/uncaring/ill informed/plain scared (we can take our pick). the retd community is substantial but the issue can be understood by a few and those who can understand are too decent or too tired to jump to the streets(which is the only medium to attract attention in this nation where the channels pick up news based on its juciness).

the defence minister who is a well educated and well meaning person it appears tends to get bogged down very fast by the inputs from MOD and a complete lack of articulation of the same by the service chiefs/ senior representatives.

i have seen you highlighting this issue umpteen times so the hope remains that greater media coverage and articulation of this injustice and greater awareness at the level of a soldier is the only way out. we request you to publish the same in the vernacular media to generate a healthy debate and better awareness amongst veterans and serving.
keep up the good work.

PBOR said...

Not even a single comment in 7 days on such an important post.

Had it been about increase of five rupees in pension, there must have been at least 70 comments.

This says it all ….abt … Faujis’ “Understanding” :-(

kvg said...

Dear Maj Navdeep.
Generally we do not understand these legal aspects. Thanks a lot for the lucid clarifications and expalnations.
KV Girish

Mrityunjay said...

Hi, Maj Navdeep you would have read umpteen words about your efforts and their results on the opinions of the environment. Salute to your dogged determination and the self belief.
Came to know about the committee formed to address the root causes of the grievance and make an endeavor to resolve them.Kudos to the Defence minister to select the well info personnels and we are hopeful of good to the organization.
Had an request to you to suggest the panel to work on methodology of deciding the inter se seniority between the various entries. i.e dt of commission should be taken as the base and rest of the rules should be adjusted around it so as to give due regards to the coloured service rendered till not making to the mark of Selection Bd no:3 atleast. As far as policy goes the depression of seniority is the result of disciplinary action only. Presently your service of upto two years goes in vain and suddenly u r junior to your junior.
Would request you to kindly highlight such issues which is related to day to day functional problems also.
Thanks in anticipation and all the best.
Lt Col M K Singh

Faujidoc said...

A lot of clarity is needed regarding the fundamental rights of Armed Forces members and protection offered to them under the constitution.
The existing situation is that the British era Army Act has been blindly copy-pasted by Independent India. Now, 60 years after independence, various loopholes in the act are being utilized to deny Armed Forces members their rights.
For example.. We pride ourselves on being a volunteer army. Officers hold their posts "at the pleasure of the President". Yet, if an officer desires to hang up his boots after serving his country for twenty years, he is forced to offer reasons as to why he wants to leave and routinely denied discharge. Isn't free will enough? Aren't all Indians guaranteed the right to live as they want and to work in any profession, or even not to work if they so choose? If I voluntarily placed myself under a stringent law such as the Army Act, why can't I voluntarily leave? Is the President empowered to force an Indian citizen to serve in the Armed Forces? Shouldn't my service count in my favour rather than against me?
Yet, past experience shows that the system does indeed misuse the ambiguous provisions of the Armed Forces act to routinely deny those serving the nation their dues.
Another example... The Indian government has granted certain perks to Armed Forces doctors under the 6 CPC. the same have been upheld by the AFT as well as the Supreme Court. Yet, 7 years down the line I am still travelling in a non AC taxi and staying in cheaper hotels, eating poorer meals than those eaten by other government doctors. Why? Simply because I am in uniform and unable to voice a protest or even leave?
Even if eventually justice does prevail, how will it help me? Am I made to suffer all these indignities purely because I chose to serve my nation?
Welcome to 21st century slavery, a la Indian Armed Forces!

bala said...

Having read ,twice - having been busy to pursue so many other anomalies on issues effecting legitimately eligible pay and pensions there upon ; it is struggle in retired life after decades of active military service with hardly any time for peaceful & undisturbed living ,even after retirement in this old age !
Now look at this further hurdles of denial of normal judicial review to mily service ?.
Is it really worth all these sacrifices and struggles through wars of past 1962 ,65 &71 - for giving peaceful and pleasure filled life to all these people ???
Why should mily men run pillar to Post to get their haq/legitimate pension???
Denials and anomalies at every stage.
If Judiciary is to adjudicate on so many .....issues and associated issues of mily ,why do the Nation pay these huge army of MOD ,PCDAs,DESW.......etc ,to introduce anomalies and wear them out with death of anxiety and harassment.
As some body aptly said - min of dushman MOD & dushman of esm welfare DESW .
As eminent lawyer U have surfaced in recent past. Best to u & bless u.
Oh ,never a day without some inconsistency or anomaly.some other day on specifics.

GURDIP said...

Dear Major Sahib
I'm of strong opinion that the case of Grant of pension of a regular naib subedar to the honorary naib subedar of pre 2006 period recommended by 6CPC, which recommendation was accepted by the govt but denied by the mod in flimsy clarification by incompetent officialofficial is very much involving law point concerning public interest - thousands of hony naib subedar affected surely constitute public. Furthermore, when the orders passed by Armed Forces Tribunal to the MOD to release the pension of a regular naib subedar to hony naib subedar cannot be got implemented legally, and are pending for years, surely it involves legal aspect of public interest. I feel, on this plea the case needs to be filed in the higher judiciary.