Thursday, April 4, 2013

Are Armed Forces Tribunals - a ploy to deny justice to soldiers?- By Birbg V Mahalingam

The Standing Committee of the Parliament on Defence on a proposal moved by the MOD to amend the Armed Forces Tribunal Act has stopped short of recommending full powers of ‘Civil Contempt’ to the AFT. While the officers of the Ministry of Defence, other civilian organisations and retired defence personnel have been recommended to be brought under Civil Contempt powers, the serving soldiers have been left out. This fractured recommendation gives an impression that the Armed Forces are above the law which they are not.

AFTs were created to give speedy and less expensive justice to defence services personnel against grievances. Servicemen refer cases related to Annual Confidential Reports, denial of promotion, illegal dismissal, wrong interpretation of rules and denial of entitlements etc. to the AFT for justice.
In the present form, after the Tribunal has heard, and given a ruling on a case, should the authority responsible for implementing the AFT’s orders decide to ignore the verdict and fail to act, the AFT can do very little about it. The AFTs do not have powers of Civil Contempt. Incidentally, ‘Civil Contempt’ implies willful disobedience of any judgment, direction, or other process of a Court or willful breach of an undertaking given to a Court. Presently, due to lack of powers there is very little forward movement in the 2172 execution petitions that litigants have filed for non-implementation of the Tribunal’s orders.

Strangely the Armed Forces and the Department of Ex–Servicemen Welfare (DESW), both meant to safeguard the interests of the serving and the retired community have stood against the amendment in the Parliamentary Committee. The argument of the Defence Services against the amendment lacks vision and an understanding of the concept of the fundamental rights of a soldier to challenge authority in a disciplined way. Absence of summoned Commanding Officers from their military units and the consequent adverse effect on the operational efficiency, difficulties in receiving summons due to inaccessible terrain etc. have been their mainstay argument. Defence Services perhaps forget that till the creation of AFTs, serving personnel were seeking redress from the High Courts which had ‘Civil Contempt’ powers. How were they managing the operational efficiency of the units then? Civil Contempt proceedings are instituted against the Defence Secretary, Service Chiefs or at best against some branch head at the Service Headquarters. After the MOD and the Service Chiefs have approved the implementation of an AFT verdict, if a junior officer decides not to implement it, is it not a breach of discipline warranting severe punishment?

The rationale put forth by the DESW against empowering the AFTs are illogical and bizarre to say the least. Their arguments such as AFT and the DESW work for the betterment of ex – servicemen and both the organisations work in harmony’, ‘by and large AFT decisions are implemented unless the decisions are against government policy’ and ‘either party is free to implement the verdict or not’ are baffling. DESW perhaps is unaware that the choice of non-implementation of judicial verdicts does not exist. Either the verdict is implemented or the party concerned obtains a stay order. Govt  policies are not sacrosanct and individuals have the right to question them and AFTs are competent to repeal policies and statutory rules. During the deliberations, a representative of the Ministry of Law and Justice stated that the MOD is filing appeals almost on every matter thus ipso facto denying justice to the entitled. The intentions of the MOD can be seen through.

The perversity of the design of the AFT is striking. AFTs are under the MOD’s administrative control for finances and perks. Will that not affect the objectivity of the Tribunal especially when it comes deciding against the MOD or its officers? A petitioner cannot go to the High Court against  decision of the AFT. His only option is to go on appeal to the Supreme Court which is time consuming, costly and will force a complainant to fight a case far away from his place of residence. As per the existing provisions, Supreme Court can be approached only if there is a point of law of general public importance. Which disabled soldier will go all the way to Delhi from some remote village in the country first trying to establish that there is a point of law of general public interest and then spend Rs one lakh per hearing to get his disability pension of say Rs 1000? Willy – nilly the AFTs are the first and the last court for the soldier. Where then is the justice? Is this not an autocratic way of forcing illegal rules and orders on the defence services and make them subservient to the bureaucratic mercies and pleasures? The point is, in case the verdicts of AFT are not to be implemented or cannot be implemented why have an AFT and waste the time of the litigant, the Tribunal and the officials involved? Isn’t this a farce? Interest of justice demands that the AFTs be made independent of the MOD, be provided with full Civil Contempt powers and appeals against AFT verdicts brought under jurisdiction of High Courts.

Challenging the authority is a fundamental right of every individual. A soldier cannot be denied a fair opportunity and an institution where he can go and file his grievance. If we fail to address this basic requirement especially for a disciplined body, the consequences can be telling. The Central Administrative Tribunal and other Administrative Tribunals created under the Administrative Act have full Civil Contempt power. Why not the AFTs?

(BRIG V MAHALINGAM (retd), has held varying command and staff appointments in his 35 years of Army service. He specializes in security related matters and is a leadership trainer. His areas of interest include national security, defence and security forces, governance, and politics.
Comments :

Maj Gen Ashok Coomar (Bhopal) : A very valid point has been raised by Brigadier Mahalingam as to how were the Services HQ managing when the serving soldiers and the veterans approached the High Courts which have unfettered powers of civil contempt. In some cases it was this fear or the ultimate resort to it that relief was granted. They need to answer this if they have any sense of fair play left. Fortunately there is the view point of Defense Secretary on record as evidence. One hopes that the final amendment will not ignore that sane voice. I hate to imagine where we are headed with all such manipulations at a time when the deceit of the MOD in rank pay case is being unraveled. Perhaps further alienation of armed forces from arbiters of their (mis)fortunes with consequences as discovered by Isaac Newton - equal and opposite reaction! My thanks Brigadier Mahalingam for so logically raising these points.

Ashok Gupta : Asking for justice is a fundamental right of every Individual/ citizen including soldiers of our Armed Forces. But if the Soldiers can't afford the lengthy and costly Judicial Process , a Special Fund should be created for them.
(Source- TOI)

1 comment:

  1. Sirs, anyone of you be kind enough to mail the copy of Ex-serviceman (Reservation of vacancy in the State Service and Posts, Group C and Group D), Rules, 1982 of West Bengal. My E mail ID--
    My query is related to recruitment purpose and I am a Government employee of Govt. of West Bengal.
    Arjun Dasgupta