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Friday, December 30, 2016

Faux regalia in the real unforgiving world: Look at yourself in the mirror, Part 2

Like many times in the past, I debated if I should pen my thoughts today- free flowing, without structure. I debated because, as I have stated before, critical pieces are at times used as tools by some frustrated souls to pinprick and grind axes against the system, rather than to introspect, improve and march ahead.

But then I still decided to. And I shall be honest.

I have written about this earlier but the wedge between the civil and the military world has since widened as the voices have become shriller. And then I saw this very important and much valid statement by General VP Malik in his recent interview to The Times of India:

“...The chief must have wide experience. The chief should also be civically literate and conversant with the principles and precepts expressed in the Constitution...”
Though we are on a different subject and not discussing higher defence appointments here, the statement is important since it comes from a former Chief of the Army Staff, who, even though retired in 2000, seems much more progressive and practical in thought than many of our current commentators. Valid since it makes one realize the fact that the knowledge of basic constitutional concepts, democratic or even administrative principles is not optimum within the military community. To put it crudely, many serving in the military are not aware how things work.

A few days ago, at an official gathering where I had a longish conversation with some highly competent officers of the defence services, certain issues that I speak of above, stuck me hard. One, that there is an extreme lack of understanding, knowledge and acknowledgement of contribution of other professions or services. Two, that the basic insight regarding our national institutions is lacking. Three, that there is some kind of a feeling as if only the military is serving the nation while all other professions are lax, dishonest or both. Four, that there is strong resistance to change and things have come to such a pass that attempts to impress are made not by the depth of learning or knowledge but by scratching the surface and flowery English.

In the same conversation, I was also taken aback by a number of broad statements such as “80% of judiciary is corrupt” and questions about how the judiciary enjoys the month long vacation of Courts in the month of June or the promotional avenues in the civil services or how the Central Armed Police Forces are paid more than the Army while they are not performing duties that are as exacting. Urban legends, basically. Pitiful though is the fact that while the military itself is facing a multitude of challenges, people have time to discuss other professions from afar regarding which their knowledge or understanding might not be of the desired level. Or, to take an example from the above, though not germane to the subject, the actuality that it is only the Constitutional Courts that close for vacation in June and not others and that even the said Courts continue to function with vacation judges and that overburdened judges at times have to hear hundreds of cases per day, read their files in the morning and evening and night, apply mind on the precious rights of litigants, pronounce judgements, dictate decisions, sign orders and so on. Just as military personnel avail about three months of leave in a year, perhaps judges (and lawyers) too deserve a break to maintain mental equilibrium or even to look through pending work which piles up during court days, and they too are serving the society in their own way. Talking ill of babus is also fashionable, repeatedly comparing the military and the bureaucracy. I don’t think that a young newly inducted IAS officer looking after the magisterial, executive and revenue functions of his sub-division or a young IPS officer supervising the policing and security in the same area is encumbered with any less onerous responsibility than a newly commissioned defence officer. While we continue to ascribe duties to our officers (in the name of so-called grooming) that are not commensurate with their ranks thereby ourselves lowering the prestige and sheen of the military brass, paradoxically, on the other hand we speak poorly of other professions. 

What stands out distinctly from the above is that there is not enough education being imparted in our academies or institutions about other occupations and services with whom we have to work shoulder to shoulder in today’s complex environment. The vision expressed by General VP Malik for senior staff is as much valid for the youngest officer since if he or she does not build up knowledge in the formative years, the foundations shall remain weak even on attaining higher ranks. If not given attention, the knowledge about concepts such as the constitutional separation of powers or even elementary notions that would be clear to a civics student in school, would remain elusive. The net result would be tunnel vision and spending time forwarding fake social media and text messages spreading disaffection, discontentment and planting falsehoods against seniors and the establishment instead of focussing on positive well-rounded advancement to take on challenges in the real world. There would always remain people like us who shall steadfastly stand behind the genuine causes of the men and women in uniform, but not at the cost of causing injury to the reputation of  others. While IAS and IPS officers get to know more about the Army while on attachment, the equivalent exercise is missing in the defence services. Shouldn’t Gentlemen Cadets in batches be attached for a week to a Police Station to understand its functioning and the challenges faced by policemen and women or basics of investigation or criminal law? Shouldn’t they be attached at the local tehsil to comprehend its functioning? Till the time there is cross faculty exposure, which is the call of the times even for essentially military functions, seminal growth shall continue to dodge us.

The military must not lag behind in real terms by way of some kind of show of faux superiority or holiness. Sense of entitlement must yield and make way for sense of legitimate expectation. Theoretically camaraderie is stressed upon but unlike the civil services, there are sharp divisions within the system when it comes to benefits, cadre management or  even welfare schemes whether it is a struggle between the Army, Navy and Air Force, or between the Combat Arms and Combat Support Arms or between Arms and Services, and at times even between Regiments. Healthy competition is replaced with peer jealousy and crab mentality. Problems are created for own comrades at each level. Whether it was the Dynamic Assured Career Progression Scheme (DACP) for doctors or medical facilities for our Short Service Officers or certain benefits for women officers, most impediments emanated from within the uniformed community, not from outside. While we discussed whether women commissioned officers, who were allowed to serve for 14 years, were fit enough to serve for 6 more years to earn pension or not, the Central Armed Police Forces deployed women personnel at jawan level even at high altitude locations and for extreme riot control, without controversy. While we with our high noses debate how the military is superior to the ‘paramilitary’, the latter have implemented the DACP smoothly while our Chiefs of Staff Committee (COSC) at one time made presentations to the Ministry on why it should not be implemented, a fact now made use of by financial mandarins. While civil organizations discussed with their employees and pensioners how best to present their views before the pay commission, the military refused to share its memorandum to the pay commission even with its serving rank and file and also refused to part with it under the RTI Act. While lawyers of civil departments go out of the way to assist the courts graciously and fairly when it comes to litigation of their employees, our officers brief govt lawyers as if it’s some kind of war being waged against litigants- of course they are not at fault since they are pressurized by higher headquarters to ‘win cases’. Promotion related litigation for empanelment under the Central Staffing Scheme with the central government has sharply decreased in civil departments because all promotion related and other administrative policies of the Department of Personnel & Training (DoPT) are now available online and transparency is valued, while in the defence services, officers keep groping the dark to get a grip on what has hit them. Sporting events and movies come to a halt if a military VIP enters and till he is given his separate large chair in a separate enclosure with better cutlery, something unheard of in today’s civil set up. During the OROP agitation, certain veterans were full of hate towards civilians, while civilian pensioner organizations, on the contrary, supported us to the hilt even during the Anomaly Committee meetings during the recent disability pension reduction controversy. While we continue to rightly feel proud about the military, its discipline and impeccable service to the nation, there are a few things we can learn from others.

Operations and strategy, though nationally of utmost importance and also pertinent to military morale, do not affect the quality of life or basic dignity of defence personnel and their families. In every sense of that sphere, civil departments and services are doing better than the defence services- in cadre management, in welfare related issues, in facilities, in progressive personnel policies. So next time we talk about others, we must go to the nearest mirror and take a very hard look. To end, I must add that what I write above should not make you gloomy since it is simply a call to embrace positivity and reformatory thought with an open mind. Till when would we thump our chests about our past and rest on our laurels? This feel-good regalia could quite be useless in the actual world.

Get real.

Sunday, December 18, 2016

Movement on the implementation of the Committee of Experts

As reported by the media, there has been some movement on the implementation of the recommendations of the Committee of Experts established by the Raksha Mantri on litigation and improving the system of redressal of grievances.

Some of such recent media reports are linked as follows:

Friday, December 2, 2016

Tribunalisation in India: my op-ed in Swarajyamag

My oped that appeared in Swarajyamag: “The Problem Of Indian Judiciary Everyone’s Talking But Doing Nothing About-Tribunals”

Go slow on tribunals, strengthen real Courts

Reckless tribunalisation must be halted

Navdeep Singh

The recent statement of the Chief Justice of India on non-availability of Chairpersons, Members and Infrastructure for Tribunals again reflects a dangerous obsession with these bodies which have their roots in the emergency era and the 42nd Amendment. While much focus remained on the NJAC verdict, what escaped notice is the irony that the cardinal principle of separation of powers is more under threat via reckless tribunalisation in our country, which tacitly, is not only ensuring the control of the uninitiated over judicial functioning but also curtailing access to justice for the common citizen. Away from the real or perceived friction between the executive and the judiciary, it is widespread tribunalisation which is slowly eating away core judicial functions thereby denuding real Courts and imperiling actual independence of the judiciary. Even the Prime Minister’s very valid and introspective question last year on the desirability of tribunalisation has failed to dent our complacent thought-process. And it seems that many in the judiciary and government also are not keen to rock the boat for the concept provides comfortable post retirement sinecure. It further appears odd that provisions for appointment of senior retired Constitutional Court judges have been made in many tribunals which at times are just courts of first instance. It is yet another interesting matter that the ostensible motives behind creation of tribunals, that is, of easing the burden of the regular judiciary and quicker dispensation of justice, are the biggest myths, with the backlog increasing, rather than decreasing, after creation of tribunals in certain jurisdictions.

So how does tribunalisation affect judicial independence furtively?

Firstly, tribunals operate under the thumb of parent administrative ministries against whom many of them are meant to pass orders, therefore remaining at their mercy with visible and invisible strings for facilities, infrastructure and also rule-making. Despite deprecation of this arrangement and constant efforts by the Ministry of Law & Justice to bring all tribunals under its own nodal control to offset such conflict of interest, there has been steadfast resistance by ministries eager not to loosen their respective grips. Even as back as in August 2001, Mr Arun Jaitley, the then Law Minister, had informed the Parliament about the positives of bringing tribunals under the said Ministry in line with Supreme Court directions, but fifteen years down the line, the situation remains the same despite the desire of the political executive to undertake reforms. More than anything else, the confidence of litigants is shaken by the very thought of approaching a quasi-judicial body which operates under the aegis of the department against whom the case has been filed.

Secondly, the Secretary of the said ministry sits on the panel for selecting and reappointing the adjudicating members and also has a role to play in disciplinary committees. For instance, the Defence Secretary is a part of the committee for selection and re-appointment of members of the Armed Forces Tribunal, and the said Secretary is that very officer against whom all tribunal orders are to be passed.

Thirdly, under the garb of providing cheaper and informal adjudication, appeals have been provided, on very limited grounds, directly to the Supreme Court from some tribunals making access to justice a far call with some litigants accepting injustice rather than challenging orders simply because they cannot afford prohibitive costs of litigation in the apex court. The very valid dicta of the Constitution and Three Judge Bench of the Supreme Court  in the cases of L Chandra Kumar and RK Jain respectively, favouring judicial review by the affordable and accessible  High Courts from the orders of tribunals, has had no positive effect.

Fourthly, persons who at times have served as part of the same ministries are appointed as members and who carry with them their own personal experiences and over-familiarity making justice subjective as compared to judges who bear no such baggage and are trained to be objective. This is not to suggest that all non-judicial members are alike, some of them might be outstanding in approach, but it is too dangerous to rely on fortuitous personality-oriented traits. Further, they might be excellent professionals in their own fields, but just as legal or judicial professionals cannot be expected to be trained in other fields, members of different vocations cannot be expected to imbibe judicial temper one fine day, and judicial functions are not hit and trial experiments.  As back as in 1951, Simon Rifkind, an American Judge, for the same reason, famously lambasted specialized courts by stating that such systems reinforce the seclusion of that branch and further immunize it against the refreshment of new ideas which constitute the very tissue of any living system of law. He added, “in time, like primitive priest-craft content with its vested privileges, it ceases to proselytize”.

Fifthly, a majority of non-judicial members are not legally qualified and hence are not even eligible to appear before such tribunals while they are allowed to exercise judicial functions while sitting on the bench. 

Sixthly, some tribunals are not even vested with powers of civil contempt thereby leaving them toothless qua enforcement.

The Supreme Court and many of our High Courts have expressed grave concern on almost all aspects flagged above. As stated at the outset, the Prime Minister too, last year, spoke about his dissatisfaction with tribunalisation, but then directions of Constitutional courts and words of the highest of the political executive are being held hostage to administrative lethargy, cussedness and not so praiseworthy intentions, which should be unacceptable in a constitutional democracy.

To salvage, and to ensure that tribunalisation does not threaten the judicial fabric of our country, the following pointers may warrant attention:

(A) All tribunals must be immediately placed under the Ministry of Law & Justice and finally an independent National Tribunals Commission, totally out of the purview of parent ministries. The Income Tax Appellate Tribunal (ITAT) which functions under the Law Ministry (and not the Finance Ministry) is a healthy example of such an arrangement. Members of tribunals must be given the best of facilities to attract the finest talent, but then the facilities and infrastructure must not be from the departments against which the tribunals are meant to pass orders.

(B) To offset conflict of interest, the Secretary of the department against which the tribunal is to pass orders must not be associated with the selection process. Further, the ‘dangling carrot’ syndrome of re-appointment must be abrogated for former judges as well as non-judicial members. Legislation dealing with tribunals must ensure that at best High Court Chief Justices or Judges or lawyers with impeccable credentials fulfilling the criterion of appointment are made eligible for appointment of Chairperson or Judicial Members, and not Supreme Court Judges, in order to maintain the majesty and dignity of the highest Court of the land.

(C) Tribunals should only be allowed to be constituted in highly technical matters where scientific expertise of non-judicial members is required, such as engineering and electricity, or in benign areas such as consumer rights where an informal approach is preferred.

(D) Tribunals must not be allowed to encroach upon core judicial functioning of regular Courts in disputes which are essentially civil in nature or disputes between individuals and the State involving fundamental rights. Instead, regular judiciary should be strengthened to relieve their burden and judges should be allocated consistently stable subject-wise rosters as per their aptitude and expertise. Another desirable system is introduction of a concept akin to the newly introduced Commercial Courts which exercise special jurisdiction and decide cases in a time-bound manner and within the existing judicial set-up thereby boosting the confidence of litigants and the citizenry.

(E) There must be no direct appeal to the Supreme Court from a tribunal with original jurisdiction. At least a three tier hierarchy with a time-bound framework be conceptualized for all tribunals out of which one should be a vested right of appeal or judicial review. It must also be realized that High Courts are much more accessible and affordable for litigants than the highest Court of the land approaching which is almost impossible for the common citizen. The appeal thereafter from the High Court to the Supreme Court should be restricted only to the rarest of rare cases involving points of law of general public importance. The system being followed from orders of the Central Administrative Tribunal (CAT) is a perfect positive example worth emulation.

(F) All tribunals must be provided with the power of civil contempt and a statutory execution procedure to give effect to their decisions so as not to render them toothless.

Paradoxically, the landmark verdicts on judicial independence throughout our independent history or the much cherished concept of separation of powers would remain consigned to the book if we allow reckless and extensive tribunalisation, since in this roundabout manner, though the Courts would remain independent in theory, their functions practically would stand transferred to tribunals thereby bringing to naught all positive strides in this direction, and if, in the words of the Calcutta High Court, which I often quote, “matters of justice and equity are left to tribunals manned by the uninitiated to pronounce upon, justice becomes the casualty and inequity the order of the day”.

A shrill alarm raised by the Courts as well as the highest of the political executive, but would it awaken the legal-judicial ecosystem?