Feel free to contribute on burning issues concerning the armed forces. Contributions would be acknowledged - Use the 'Comments' tab or email navdeepsingh.india[at]gmail.com. No operational/business/commercial matters to be discussed please. Legal advice/litigation related issues would strictly NOT be published or discussed or entertained. Information on this blog is opinion based and is neither official nor in the form of an advice. This is a pro bono online journal in public service related to issues, policies and benefits, and the idea behind it is to educate and not to create controversy or to incite. Be soft in your language, respect Copyrights.

Tuesday, June 26, 2018

Why does India need its own Farr and Flipper to undo miscarriage of military justice!

My piece on military injustice, also published @ Medium.

Not many in India would have heard about a young British soldier called Private Harry Farr. Not many would also have heard about the ‘shot at dawn’ memorial at Staffordshire in the United Kingdom.

The memorial is a tribute to 309 British and Commonwealth soldiers who were court martialled and shot during World War I primarily for offences of cowardice and desertion. Young Harry Farr was one of them. This battle hardened soldier fought bravely for the British in the First Great War. His trench was shelled and he sustained a disability due to which he was repeatedly admitted in hospital. At one stage he was refused admission in a medical establishment on the pretext that he was not ‘physically wounded’. He was suffering from ‘shell shock’ or what is now known as Post Traumatic Stress Syndrome (PTSD).

Private Farr, in a fragile frame of mind, went missing for three hours, and when located, was arrested and arraigned before a Court Martial, which, after a mere twenty minutes of trial, awarded the punishment of death by a firing squad.

The family fought a long war for justice when documents were discovered that despite his medical condition the young soldier had been forcibly sent to the front. The family could not meet success even at the High Court. Despite being refused positive judicial intervention, the United Kingdom, in 2007, granted a posthumous pardon to Private Farr thereby restoring the family’s honour. And with him, due to lack of individual evidence, a total of 306 soldiers executed that dawn were pardoned, providing them the benefit of doubt.

Then is the story of Lieutenant Henry O Flipper of the United States Army. Lt Flipper, born a slave, was the first African-American cadet at West Point to have graduated and commissioned in the US Army. As a military engineer, he was the inventor of the ‘Flipper’s Ditch’, a drainage system for malaria infested swamps, which is still used. Lt Flipper was accused of embezzlement and Court Martialled. He was found ‘not guilty’ of embezzlement but convicted for ‘conduct unbecoming of an officer’ for not having informed his Commanding Officer about some missing funds in his unit, and dismissed from service in the year 1881. Post his dismissal, Lt Flipper built up a successful career also recognized by the Government which appointed him at high offices. Interestingly, despite having been dismissed from service, West Point instituted an award in his name and placed his bust in the academy. Perusal of documents of the conviction pointed out the bias in his trial. It was long thought that his dismissal was the result of an inherent resentment towards African-Americans at the time. It was also discovered that the then Judge Advocate General of the Army wrote a detailed note to the President stating that his dismissal was unwarranted but it was never put up to the President and his dismissal was approved through a one-line non-speaking order. While reviewing the documents and showing moral courage of impeccable nature, the US Army in the year 1976 opined that his conviction was unjust but also stated that it had no power to overturn it, however his dismissal was converted into ‘honourable discharge’ which was permissible with the powers of the Army. In 1999, fully restoring the honour of the first officer of colour commissioned into the United States Army, the then President, William J Clinton, granted a full and unconditional pardon to Lt Flipper.

It’s ironic that the basic provisions of Courts Martial, especially Summary Courts Martial, practiced by the British during World War I, remain the same as on date under the Indian statute except cosmetic changes. The only real changes in how the provisions are effectuated have been forced upon the system due to judicial intervention primarily by the High Courts and the Supreme Court over the years. Though it is also totally agreeable that today’s military hierarchy is much more sensitive towards injustice or miscarriage of justice than the rank and file of the yesteryears. There was a time when the Courts could not even go into the appreciation of evidence of Courts Martial, something which was altered much later in the year 2009 with the inception of the Armed Forces Tribunal.

Why do I write this.

Why I am writing this here today is that due to the primitive nature of military justice being practiced in our country in the past, there are glaring instances of injustice and miscarriage of justice that have come to light years later, some due to a closer analysis in hindsight. Some are such which appear so nonsensical that these would not seem compatible with any of the values professed by our great military which is the pride of the nation. Many affected fought it out and succeeded, but some lost judicially and yet others did not even try. Some died without closure, some are living and looking for closure, and interestingly, under the Indian law, setting things right, even after a judicial verdict to the contrary, is not a far-fetched idea and is in fact provided by the statute, thereby triggering my urge to write this today.

Two glaring examples come to my mind:

The Samba Spy Case
Much has been written about this case popularly known as the Samba Spy Scandal. Many books have also been penned. Many of those affected have exhausted their legal remedies as per law and the judgment rendered in their favour by the Delhi High Court was ultimately overturned by the Supreme Court on an appeal filed by the Union of India. There is, hence, no judicial remedy remaining. But other doors are still not closed, as I would explain a little later. Coming back to the case, de hors the fact that they were unable to secure a final decision in their favour, there are some extremely jarring notes that would move even an untrained non-legal eye-

All accused were implicated essentially on just the statements of two spies, that is, Sarwan Das and Aya Singh and an officer of the rank of Captain who implicated (by his statements) about 52 personnel including, hold your breath, an officer of the Judge Advocate General’s department. The two spies were initially arrested in 1975 but they apparently named others in 1978. The said Captain clearly stated in his cross examination that he had been badly tortured to elicit his statements.

The entire case was built up on the premise of the statement of Aya Singh that one Capt Nagial was the initiator and had visited Pakistan in the year 1974. The charge was later established to be false and Capt Nagial was acquitted of the same by a Court Martial but implicated and convicted in some other case. When the foundation itself was faulty, there was no reason for proceeding in the matter.

Around 40 to 50 personnel and officers were finally accused of spying for Pakistan. All of them were from the same location of a Brigade based in Samba, a small town. Is it possible for such a large number of people being involved in spying for Pakistan from such a small station?

Statements were obtained from another Havildar, called Ram Swarup, who died of injuries after interrogation. The case was built up on confessional statements but there were large-scale allegations of torture.

Aya Singh, the kingpin on whose statements the case had progressed, was apparently killed later while crossing the Indo-Pak border. Could a person with such credentials be considered a reliable witness and could his statements be relied upon to implicate such a higher number of personnel located in a small town?

When no evidence was found by Court Martial against some personnel, their services were administratively terminated.

It is understood that a report was sought by the then Prime Minister from civilian agencies which established that the large-scale implications were no true.

Swaran Dass later made an open statement under oath that he had implicated innocent personnel after being tortured. The statement, made in 1994, was widely covered in the media as were other aspects of the case.

The above points do shake the very foundation of allegations of a large-scale conspiracy. On the face of it, something drastically went wrong somewhere but the wheels were not turned back to avoid criticism.

The curious case of Brig Pritam Singh
In one of his recent articles, Lieutenant General HS Panag, the former General Officer Commanding of Indian Army’s Northern Command, provided an interesting insight into the travesty faced by Brigadier Pritam Singh, known as ‘Sher Bachha’ (Son of a Tiger) on account of his stellar contribution to the battle of Poonch in 1947. Wounded in World War II, Brig Singh was also awarded the Military Cross after he escaped a Prisoners of War Camp. For one year, Brig Singh, then a Lt Col, resisted all the might of the enemy and ensured the retention of Poonch with India. He was promoted to the rank of Brigadier immediately thereafter (as per the system in vogue, officers were promoted directly from Battalion Commanders in the rank of Lt Col as Brigade Commanders in the rank of Brig). Though his contribution is legendary and he was again wounded in the Poonch operations, which area would have had a different history but for the valiant officer and his resolve, this piece is not about his military prowess. Brig Singh, in 1951, was dismissed from service by way of a Court Martial for misappropriating a sum of about Rupees Ten Thousand and a carpet. Other charges were also put into motion, but all collapsed. The carpet was meant as a present for the Air Force from the Raja of Poonch but it was alleged that Brig Singh had stolen the carpet for his own use. Despite the testimony of the Raja that it was indeed a gift from him to the Air Force which was being transported by Brig (then Lt Col) Singh’s battalion, the Court Martial went ahead and convicted him without even examining any evidence or witness in his presence as mandated by law. The allegation of misappropriation was with regard to excessive amount drawn than the actual expenditure and the time when the offence had supposedly occurred was a period when Brig Singh was admitted in a hospital after being wounded in war. Failing to pin him down on corruption charges, the Court Martial managed to convict him primarily on procedural lapses. It was well known during those times that many of his peers were envious of the trajectory of his career and the accolades he had achieved and the word amongst the military masses was that the entire episode was a result of this jealousy to stop his ascent.

Those times were strange. Punishments handed down by the military were not questioned. Courts were loath in entertaining petitions against military authorities and individuals were not aware of their rights. The direct result was that many injustices went unchallenged and this too, perhaps, was one in that list.

Bigadier Pritam Singh died in Punjab, unsung.

Restoring the Clock.

However, there is still a chance of redemption, but not by way of judicial remedy since the same is closed in the Samba Spy Case and barred by limitation in Brig Pritam Singh’s case. The fact that many of those who were affected are no more living makes the situation even more complicated.

Though invocation of judicial remedy is not possible, the Central Government still can very much undo the harm caused to the very concept of justice in such cases. Section 165 of the Army Act empowers the Government to annul any proceeding of any Court Martial on account of being illegal or unjust. This power is unfettered and it does not matter whether a person has exhausted his or her legal remedies or not, and with what result. If, based on the material available, the Government comes to the conclusion that the Court Martial was not just, it can annul the entire proceedings and restore the honour to those who were treated unjustly. In cases of those whose services were terminated or Presidential Pleasure withdrawn, the same, being merely an administrative non-judicial act, can always be reversed by the same authority which had passed the orders of punishment in the first place.

The remedies that I speak of above are not ordinary and are meant for extraordinary situations. However, keeping in view the fact that the systems of military justice in the yesteryears were primitive and there is a possibility of innocents having been meted out unjust punishments, it would only be right, with due diligence, to explore this exercise with full moral courage for restoring their honour.

We need our own version of Private Farr and Lieutenant Flipper here. Though there is bound to be resistance in such cases citing wrong precedents being set, a hackneyed and regularly exercised excuse, a strong political will can make it happen. Besides, setting aside of unjust actions is not a new phenomenon and that is the very reason such rules exist to undo miscarriage of justice. If ‘precedents’ are to be given so much undue emphasis, then the mere existence of those provisions in the statute book becomes superfluous and infructuous.

Will we have our Farr and Flipper moment in India?

Time will tell.

Friday, June 15, 2018

Op-ed: Making Short Service Commission attractive in the military

My op-ed for DNA on the need to make Short Service Commission more attractive, introducing contributory pension, thereby lowering the pension bill and leading to better cadre & promotional management, and why the current initiatives may require bolder, tougher & more innovative decisions-

Making Short Service Commission 
attractive in the military

India Needs Short Service

Major Navdeep Singh

Military circles were abuzz with the news that the government was finally in the last stages of fine-tuning a ‘golden handshake’ for Short Service Commissioned Officers (SSCOs) of the Defence Services in order to make the scheme more attractive and also to reduce Permanent Commissioned Officers thereby making the military a lean fighting machine and also bringing down the pension bill.

Nice aim, wrong route.

Always expected to be notified ‘very soon’, the proposal for a better payout for SSCOs has been doing the rounds since last many years in a dusty file sent into an orbit in the unwieldy space between the ministries of finance and defence. Notwithstanding the same, the proposal as also projected in the media, is quite imbalanced and shall be of no help in attracting talent or reducing shortages. The interesting aspect of the issue is that this topic has been discussed and deliberated by a Committee of Experts constituted in 2015 (Chapter 7.5) by the then Raksha Mantri, Mr Mahohar Parrikar, in great detail, of which this author too was a Member, but knowing the ways of the Defence Ministry, the top hierarchy and the political executive would have been kept in the dark about the recommendations pertaining specifically to SSCOs.

Firstly, Short Service Scheme, for the longest period in the past, was operated on a 5 + 5 + 4 years basis, that is, initial terms of engagement of 5 years and thereafter extendable till 14 years. In the year 2006, it was changed to 10 + 4 years, meaning thereby that SSCOs were mandatorily stuck in the military for 10 years without any assurance of post-release civil employment, without pension and without protection of seniority in case of joining civil service. The current scheme therefore is imbalanced, if not exploitative, since it leaves young men and women in the middle of nowhere at crossroads of life in the fairly senior rank of Major or Lieutenant Colonel, and many times unemployed at an age when familial commitments are at peak. The immediate action that is required is hence to revert to the time-tested 5 + 5 + 4 system or the 7 years terms of engagement recommended by the Seventh Central Pay Commission.

Secondly, instead of providing a higher amount of lumpsum payout as a ‘golden handshake’, the government should explore the possibility of introducing a handsome gratuity for SSCOs serving for over 5 years and Contributory Pension Scheme for those serving above 10 years or making them amenable to the New Pension Scheme (NPS) at par with civilian employees. This singular step would make the scheme most attractive amongst all other options, perhaps even more than Permanent Commission, and being contributory in nature, will keep the government’s pension bill in check. In fact, a contractual scheme with contributory pension could even be introduced for jawans willing to serve for fixed terms of engagement of 10 years if they do not want to enrol for longer prevalent terms under the existing defined pension and ‘One Rank One Pension’ scheme, which can continue for the ones opting for a permanent career in the military. While keeping the future pension bill controllable, such personnel would be free to pursue other vocations on their release from the military with a back-up for survival. This could be complemented with pre-retirement management, technical or skilling courses, on which the military is already working quite progressively, and which would equip personnel on contractual terms for life beyond the uniform.

Thirdly, the government must immediately take steps to restore the limited medical facilities wrongly snatched from SSCOs in the mid 2000s on the call of the military medical establishment. Accepting the recommendation of the Committee of Experts for rightfully restoring medical facilities, the then Raksha Mantri had directed action on the  same in August 2016, but till date the establishment is resisting the issuance of implementation instructions based on the directions of the Defence Minister. In fact, taking the clock further back, Mr AK Antony, in November 2009, had even announced in the Parliament the extension of the Ex-Servicemen Contributory Health Scheme (ECHS) to SSCOs, but nine years later, nothing has materialized.

Encouraging the Short Service Scheme or contractual terms in the military with a balanced contributory pension scheme is the call of the day. Besides making the military an attractive option for those who would only like to spend a few years in uniform and then carry on with the civvy street, it would also make the defence services leaner and meaner while reducing the overall pension bill of the future. It would also result in optimum cadre management and better promotional avenues and prospects for those who opt for a permanent career in the forces.

But the pertinent question, like always, is whether reformatory and innovative schemes will ever see the light of the day and whether the political executive and decision-makers would consult the right people- the stake-holders, the experts, former and current SSCOs facing the practical predicament of the existing scheme, or would the decision-making mechanism only rely upon the notings of some bored junior bureaucrats of the finance and defence ministries sitting in a prosaic section of those grand old buildings designed with the assistance of Herbert Baker in the 1910s.

Only time would tell.

The author is an Advocate in the Punjab & Haryana High Court and writes on law, public policy and military related issues.

Sunday, June 10, 2018

Much awaited policy for Housing Allowance of Ranks other than Commissioned Officers issued

Vide much awaited orders, the Government has finally notified new housing allowance rates for Ranks other than Commissioned Officers thereby replacing the existing ‘Compensation in lieu of Quarters’ (CILQ), as well as Family Accommodation Allowance (FAA) and Single in lieu of Quarters (SNLQ).

The rates would now be determined as follows:

If the concerned employee has dependents:

In field postings, he/she will be paid full House Rent Allowance (HRA) as paid to other employees at the Selected Place of Residence of his dependents. However if Government accommodation is available at the said place, then the HRA would not be paid.

In case of non-field postings, if the soldier is staying in the barracks due to functional requirements, the HRA would be paid at a rate reduced by 5% at the Selected Place of Residence of the dependents. In case the soldier is not staying in barracks, then full HRA shall be paid if Government accommodation is not available.

If the concerned employee has no dependents:

In case of field postings, full HRA as admissible to Class Z cities shall be admissible.

In case of non-field postings, if the soldier is staying in barracks, HRA would be paid at a rate reduced by 5% as applicable to the station of posting. In case the soldier is not staying in barracks, then full HRA would be admissible if Government accommodation is not available.

A soldier with dependents during his field posting or who is being made to stay in barracks during non-field postings due to functional requirements, shall remain eligible for accommodation for his dependents anywhere in India.  

The above instructions are as per recommendations of the Seventh Central Pay Commission rendered in Paragraph 8.7.26.