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Thursday, November 17, 2016

Why hold back?

Truth never damages a cause that is just, so said Mahatma Gandhi, famously.

In the age of transparency, this rings truer today. It is said that those who have nothing to hide, those who embrace truth, need not be afraid of inquisitive eyes. To clarify, I am referring to the inquisitive eye of the public here.

The above thought came rushing to me once again when I saw in today’s paper a report on the Central Information Commission’s orders to the Army to provide documents related to the court martial of five soldiers and a related Court of Inquiry to an applicant under the Right to Information Act. The documents were being refused to the said applicant.

Brings me back to the same question- why hold back when there is nothing to hide?

As soon as the Army, or for that matter, any organisation holds back information, or attempts to block information, the natural reaction of the public is negative- ‘there must be something that they are trying to hide!’ Why should we give this kind of an impression to the public at large? All actions taken by any government organisation are official in nature and law provides adequate protection to sever the parts of such information which might fall within the exceptions provided by the law itself. But those exceptions are to be invoked judiciously in the right spirit behind the said provisions and not by way of artificial hair-splitting. 

Though I am not aware of the facts of this case, and it also seems to be an old issue, it is felt that while the Services Headquarters of the three services are quite open and transparent about their functioning, there is inertia by lower formations related to provisioning of legal documents such as Court of Inquiry proceedings, especially opinion and findings. Often Rule 184 of the Army Rules is cited out of context to refuse such documents. The said rule actually only talks of provisioning statements and documents of a Court of Inquiry, it does not contain any negative stipulation for not providing the opinion and findings. Moreover, the said rule must yield to Section 22 of the RTI Act which overrides all other laws, including the Official Secrets Act. But it must even otherwise be realized by us that if an action is taken against a person based on the opinion and findings of a Court of Inquiry, then the person most definitely is entitled to the information based on which the action was taken against him or her. More importantly, such information may be required by a Court of law to apply its judicial mind to the proposition as to what went in the mind of an authority before taking any such action. The Constitutional Courts have emphasized time and again that a person needs to be informed of all material and findings against him in order to defend himself/herself, and this is not a luxury or a favour but a cardinal feature of any society governed by the rule of law. The fact that Courts of Inquiry are also open to judicial review was well established by the Supreme Court in Sanjay Jethi’s case. Further that opinions and findings of such inquiries (enquiries) are also to be supplied was well ruled by the Delhi High Court in Col PP Singh’s case. It is the substantive law of the Parliament and the law declared by Constitutional Courts that has to prevail on us, not personal opinions or legal opinions recorded on file. Reminds me again of Veena Kohli’s case wherein death related documents to a mother of an officer who died in Jammu & Kashmir were refused to her under the RTI Act on the pretext that the said Act is not applicable to the State of Jammu & Kashmir, as if the Indian Army based in J&K is a State force and not a Central force! When the Central Information Commission ruled in favour of the mother, the decision was challenged by the system, probably not out of the need for it but out of ego, in the Delhi High Court, which of course ruled in favour of the mother.

Without taking any particular position, I only wish to say here that the Defence Services are amongst the cleanest institutions in our country, and holding back of such information leads to adverse conclusions and bad press also resulting in embarrassment which does not reflect upon the actual state of an institution which the nation is proud of. The top brass of the defence services is all for transparency, even the RTI Cells at the headquarters of the three defence services are doing an impeccable and admirable job, it is just hoped that the same spirit percolates down to each officer in every military establishment. 

Wednesday, November 9, 2016

Divine Justice for Naval personnel not placed on reserves due to change of policy in 1976

This is a case wherein the Indian Navy tried its hand in enthusiastically getting the reservist pension granted by the Chennai Bench of the Armed Forces Tribunal to an old sailor set aside by the Supreme Court but ended up with an order for grant of ‘Special Pension’ in favour of all similarly placed personnel, irrespective of whether they have approached Courts or not.

The Navy had a system of 10 years active service followed by 10 years in the fleet reserve similar to the colour + reserve scheme of the Army & the Air Force. Reservist Pension was admissible to such personnel after 15 years of combined active and reserve service. In the year 1976 however, the system of placement on reserve fleet was discontinued and all those who were on rolls (even those who had joined before 1976) were released after 10 years thereby resulting in non-grant of pension to some of such sailors.

The Chennai Bench of the Armed Forces Tribunal however held in the case of one such sailor that such sailors were entitled to reservist pension since it was not these personnel who had opted out but it was the Navy which discharged them on change of policy. But on the other hand, the Principal Bench of the Tribunal dismissed such claims by similarly placed sailors. The claim for ‘Special Pension’ which is granted to personnel with 10 years of service who are released on ‘reduction in establishment’ was also not accepted for the affected sailors.

Thereafter while the Navy challenged the order of the Chennai Bench of the Tribunal against the grant of Reservist Pension, the sailors led by TS Das whose cases were dismissed by the Principal Bench, also challenged the denial of pension.

The Supreme Court in a detailed order has agreed that such sailors are not entitled to Reservist Pension essentially for the reason that even under the erstwhile system, placement on fleet reserve was not mandatory and was only to be effectuated ‘if required’. However, on threadbare examination of the issue, the Supreme Court has reached the conclusion that discontinuing the system of active-reserve service amounted to reduction of establishment and such personnel would definitely be entitled to ‘Special Pension’. Consequently, the Court has ordered that Special Pension be released to all such affected sailors, not just limited to those who had filed cases before the Tribunal.

One ideally would have expected the top Naval brass to come to the rescue of such sailors, some in extreme old age, who had been denied reservist pension due to sudden change in policy by convincing the Government to come up with a scheme to help such sailors tide over difficulties in the twilight of their lives, but instead, they chose to fight tooth and nail against benefits granted to one such sailor. It can also be said with due certainty that the Navy would have not even informed the Supreme Court that a Committee of Experts constituted by the Raksha Mantri had already rendered a positive recommendation for such personnel as far as their pension is concerned.

But then, divine justice by the Court wherein not just the litigants, but all such affected sailors would now have a comparatively comfortable life in the few years that they are left with. One can only hope that the few such personnel who are now living are identified at the earliest by the Navy and the decision given effect to without posing any further hyper-technical impediments.

Saturday, November 5, 2016

Q & A on the edit page of Times of India

The Times of India has published a Q & A with me on its edit page.

The questions were drafted by Nalin Mehta, consulting editor, Times of India.

Thank You.