The question arises whether the Armed
Forces Tribunals are just for the sake of having them? What penalty does non implementation of their judgements invite for the main perpetrators? Doesn’t the Indian
Government, itself disrespect and blatantly violates the rule of law in letter
and in spirit? How does it expect to enforce its own laws upon its citizens, when the Government functionaries themselves do not truly and sincerely comply with judicial verdicts? Doesn’t
the Supreme Court, the custodian of Indian legal system, have a say on such
issues? Is the Supreme Court listening?
These Questions are from the blog’s host.
Maj Navdeep, an eminent
high court advocate, has analysed the issue threadbare and deserves an alround
appreciation from all the Indian defence veterans. It is hoped that his views
won’t be a voice in wilderness. Though, it is quite possible, since, this
Indian Government is too embroiled in sorting out scams appearing at frequent intervals
and remains immune to most such worthwhile suggestions for improvement of systems. From
the blog’s host
By
Navdeep Singh
THE concept of Armed Forces
Tribunal (AFT) needs redemption, and urgently so, by all stakeholders. In 2009,
just about three and a half years ago, the AFT became functional with much
fanfare as an “independent” forum to adjudicate matters related to defence
personnel. It’s 2013, but despite best efforts of the adjudicating members and
those representing litigants, AFT’s justice delivery system leaves much to be
desired. Litigants hence cannot be blamed for lamenting at times that they were
better-off having their cases heard by High Courts, the independence and
majesty of which cannot be matched by the system of tribunalisation. The
problems are multifarious. Let us run through some of them.
No
power to enforce its orders
The
AFT is a tribunal which does not possess powers of civil contempt. Though there
is mention of civil contempt in the rules and forms framed under the AFT Act,
the substantive provision is missing, which shows that it was chopped from the
drafting table somewhere along the way. The reason is not far to seek, even
when the Bill for introduction of civil contempt powers was recently introduced
and referred to the Standing Committee on Defence, the defence services
themselves reportedly opposed the grant of powers of contempt to the Tribunal.
In
the Act, there is a vague mention of power of execution of orders passed by the
AFT but there is no procedure prescribed for such execution. Till date the
Tribunal survives on ambiguity. So if a person is not released on bail when
ordered by the Tribunal or not reinstated when acquitted or not granted his or
her pension when directed, there isn’t much that the litigant can do.
Since
there is no power of enforcement, most orders are not implemented unless
litigants re-approach the Tribunal seeking implementation. Most orders in
favour of litigants are challenged by the Ministry of Defence (MoD) before the
Supreme Court, thereby making it extremely difficult for defence personnel
to effectively defend their cases because of the exorbitant cost of litigation
involved.
Recently
the ministry informed Parliament that only 303 judgements remained
unimplemented whereas the actual number is estimated to be between 4,000-5,000.
Written instructions have been passed not to implement orders unless the
petitioner re-approaches the Tribunal with an execution petition.
Implementation is refused on the pretext that the AFT orders are not in
consonance with government policy! Now if government policy is sacrosanct, then
why would any interpretation be required from a Tribunal? Courts are required
to interpret, read-down, harmonize, and if required, strike down policies.
Control
of the Ministry of Defence
The
AFT currently functions under the MoD which controls its infrastructure,
appointments, rule-making and much of everything else. Though the independence
of its Members can hardly be doubted, for a litigant it seems more of an
extension of the state — a government instrumentality rather than an
independent judicial forum. A fright, since the cases were hitherto being heard
by the judiciary whose hallmark is independence, given the separation of powers
under our democratic system.
The
AFT is a part of, and dependent upon the MoD — that very ministry against which
it is to pass all orders.
Even when a proactive rule is to be introduced or changed, the matter is
referred to the defence services and departmental bureaucracy, which of course
tends to be more inclined towards looking after its own interests and keeping
the Tribunal toothless. For example, the matter whether or not civil contempt
powers were to be granted or not was referred to the three services but the
question arises as to why would the defence services affirm grant of teeth to
the AFT when those teeth are to ultimately bite them on disobedience of orders?
Despite
orders of the Supreme Court in L. Chandrakumar Vs Union of India (1997) and
Union of India Vs R. Gandhi (2010) and of the Punjab and Haryana High Court in
Navdeep Singh Vs Union of India (2012) to the effect that tribunals should
be placed under the Ministry of Law and Justice, most of the tribunals continue
functioning under their sponsoring or parent ministries, notwithstanding
the laudable efforts of the law ministry to implement SC decisions which are
being resisted by most ministries.
The
reason behind this resistance is ostensibly the fact that ministries feel
that they would “lose hold” over tribunals. An otiose argument since the
executive anyway is not supposed to maintain hold over judicial bodies. The MoD
has not even provided basics such as security to the institution or official
accommodation to members. Rules are also arbitrarily notified. For example, the
MoD recently made it compulsory for petitioners to file affidavits with their
petitions. Court fee is only accepted through postal orders or bank drafts. Now
imagine personnel posted in field and isolated areas looking for notaries to
get affidavits attested or looking for post offices and banks to remit court
fee! While the world moves away from red-tapism, the same is adopted with
impunity by the officialdom. Business in tribunals, as also held by Courts,
should be user-friendly, informal and procedure-free and that is the reason why
even the Code of Civil Procedure is not applied to most tribunals, but the MoD
does not seem to think so.
Fractured
provisions
The
drafting of the AFT Act has been messy. Besides the absence of any power of
enforcement, appeal has been instituted directly to the Supreme Court. This
despite the fact that the parliamentary committee discussing provisions of
appeal had remarked that though an appeal was being provided to SC for
questions of general public importance, similar provisions for the Central
Administrative Tribunal had been interpreted by the SC earlier wherein it was
held that jurisdiction of High Courts could not be ousted and hence AFT orders
would also have to be challenged as per Constitutional provisions.
Notwithstanding
the SC decision, the remarks of the committee and orders of High Courts, the
MoD continues to harp that orders of AFT can only be challenged before the SC.
Elsewhere in the Act, there are parts which require amendment but rather than
legislatively amending those provisions, the MoD has issued executive gazette
notifications for amendment. Now can a Parliamentary Act be amended by an
executive order?
Adversarial
role of Ministry of Defence
The
role played by the defence ministry is adversarial towards litigants, where
petitioners are viewed as “enemies of the system.” Even settled and covered
matters are not conceded, government counsel not briefed fairly and all
pleas are opposed as if it is state policy to increase litigation and live off
the miseries of poor personnel. Unwanted, forced and imposed multiple
litigation up to the SC is the order of the day and shockingly most appeals
filed by the MoD are against disabled soldiers.
The
vacancy notification for administrative members is also not published in any
newspaper. Administrative members of the first batch were selected mostly on
basis of military seniority. Care however must be taken to select
administrative members on merits with a balanced, sensitive and flexible
approach since, besides other issues, they are also to deal with cases of
disabled soldiers and military widows. In fact even a short judicial capsule is
desirable to enable the selectees unlearn military rigidity and to ensure that
they transform themselves into adjudicators without institutional bias rather
than representatives of the establishment. Litigants expect the AFT to be free,
progressive and proactive, not conservative and inhibited.
Till
the time issues concerning the AFT in particular and military justice in
general are suitably addressed, preferably by a body under the law ministry
totally independent of the influence of the MoD, concepts of justice and
equality so cherished in our democracy and which form the ground norm of the
Preamble of our Constitution, would merely remain high sounding words with
little practical usage for military litigants.
Navdeep
Singh is an author of ‘Soldiers, Know Your Rights’.
This write up is by the courtesy of The Tribune, Chandigarh dated 15 February 2013.
Heading provided by the host
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