Wednesday, April 3, 2013

MoD and the Armed Forces Tribunals

First Article

RTI reveals MoD largesse to Armed Forces Tribunal

by Ajai Shukla

Canteen cards provided to retd judges hired as judicial members of Tribunal

Discontent over legal recourse simmers within the military, with officers and enlisted personnel saying the Armed Forces Tribunal (AFT) - a judicial tribunal that soldiers must petition for justice before approaching the civil courts - usually obliges the Ministry of Defence (MoD) in its judgments. The ministry's control over AFT appointments, funds, infrastructure and manpower, produces judgments that suit the MoD, allege the critics.

The Punjab & Haryana High Court and Parliament's Standing Committee for Defence have already accepted the conflict of interest in the MoD's control over the AFT, given that most cases that the AFT hears has the MoD as a respondent. But the MoD is resisting the move to place the AFT under the Ministry for Law and Justice.

A series of MoD responses to queries under the Right to Information (RTI) Act illustrate the ministry's hold over the AFT. The answers reveal the MoD's control over foreign trips by AFT members and the ministry's grant of canteen shopping facilities to retired judges who are 'Judicial Members' on AFT benches, based on the logic that they are "MoD employees". The responses reveal that 'Administrative Members' on AFT benches, who are retired generals, are called in by army formations to "sensitise" them to the cases they are hearing.

The MoD's answers also reveal that members are appointed to benches apparently without background checks on their records.

The MoD admits paying over Rs 67 lakh for five "official foreign visits" by the AFT chairperson and members. In letter F. No. 10(10)/2012/AFG(PB)/RTI dated July 24, 2012, in response to an RTI query by Colonel (Retired) Satwant Singh, the MoD says, "As per the records available, a sum of Rs 67,85,109/- was incurred on foreign tours of Hon'ble Chairperson and Members."

In the same letter, the MoD admits that canteen cards, which entitle defence employees to shop at discounted rates from Canteen Stores Department (CSD) outlets, are also provided to the retired judges who are hired as 'Judicial Members' of the AFT. The MoD explains "CSD Canteen Cards (Grocery) have been issued to Judicial Members of AFT, in view of the fact that their salaries are paid from Ministry of Defence (Civil) Estimates."

"This is a clear conflict of interest. How can judges rule against the MoD in any case brought before the AFT, when the MoD is regarded as the employer? And if the judge is not an MoD employee, how is the MoD providing subsidised canteen cards?" asks a high-ranking serving officer whose case is before the AFT, but who says he is doubtful about obtaining real justice.

The MoD's relationship with the AFT was also evident from the ministry's response to another RTI application by Col Satwant Singh, asking whether the Lucknow-based Central Command had proposed meeting the senior military officers in the AFT bench (Administrative Members, as they are called) in order to "sensitise (them) about the important cases being handled by them and about other issues relating to functioning of the AFT."

In letter No. 149002/RTI/C/Edn dated October 19, 2012, the Central Command did not deny that such a letter had been written, but refused to divulge any details saying, "Info(rmation) is exempted under Section 8(I)(e) of Right to Information Act, 2005. Hence cannot be provided."

Section 8(I)(e) denies information "unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information."

AFT judgments are increasingly drawing criticism. The Punjab and Haryana High Court had recently overturned several AFT decisions that denied relief to defence veterans, especially disabled soldiers. The AFT has drawn bitter criticism from ex-servicemen's bodies for allegedly toeing the MoD's line, even when veterans were being unjustifiably denied their due.

The MoD's ironically named Department of Ex-Servicemen's Welfare is criticised for its reflexive opposition to veterans' appeals for disability benefits.

In one recent case, the court pulled up the AFT for passing off as "constitutional" disabilities that the rules list as "affected by stress and strain of service".

In another case, in which the AFT had supported the MoD in dismissing a pension claim, the high court termed the AFT's judgment as "myopic", reminding it that pension is not a bounty but is the property of an individual.

Second Article

MoD courts trouble

by Ajay Shukla

The defence ministry should accept the idea of a completely independent Armed Forces Tribunal and modify its internal processes to cut down litigation

Last week the army initiated disciplinary action against 168 soldiers for a mutiny in 2012 in an artillery regiment in Ladakh. Such complex prosecutions and the growing trend of officers and enlisted personnel to approach the courts over grievances relating to promotion, pensions and medical disabilities pushed the government into creating a military judicial mechanism - the Armed Forces Tribunal, or AFT. This was intended to reduce the burden on the overloaded civil courts and to create a credible judicial alternative that would enjoy the confidence of soldiers, sailors and airmen. Sadly, the structure, ethos and functioning of the AFT have prevented this from happening. The AFT's subordination to the ministry of defence (MoD), which happens to be party in most AFT cases, poses a glaring conflict of interest. The answer, clearly, is to disassociate the AFT from the MoD and place it under the law ministry, along with other departmental judicial bodies. The law ministry, the higher judiciary and Parliament's Standing Committee on Defence all favour this solution. The MoD, however, is resisting doggedly.

The genesis of the AFT lies in the Supreme Court case, Lt Col Priti Pal Singh Bedi vs Union of India, 1982 (AIR 1413). In this, the judges first mooted the need for an independent judicial body for soldiers, sailors and airmen (who are governed respectively by the Indian Army Act, 1950, the Indian Air Force Act, 1950, and the Navy Act, 1957). After a quarter century of deliberation by numerous committees and commissions, the Armed Forces Tribunal Act, 2007 ("the Act"), brought the AFT into being, aimed at providing quick and affordable justice to military personnel.

The AFT, which came into effect from June 15, 2008, was mandated to hear grievances relating to military commission, enrolment, appointments and conditions of service; and appeals against orders, findings and sentences of courts martial. Its principal bench in Delhi began functioning on August 10, 2009, followed by eight regional benches in Jaipur, Chandigarh, Lucknow, Guwahati, Kolkata, Chennai, Kochi and Mumbai. These nine benches have 15 courts, each with a judicial member (a retired high court judge) and an administrative member (a retired general officer). This provides each bench with the judicial heft and professional insight to rule wisely and expeditiously on military issues.
Initially, the Act envisioned the AFT as a military-oriented substitute for the high courts. Appeals against an AFT verdict could be addressed to the Supreme Court, but only on matters of "general public importance". For most military personnel this meant that there was no appeal beyond the AFT. But in 2011, the Delhi High Court ruled that the Act could not deprive litigants of the judicial review powers of a high court, which the Constitution provided for. Now division benches of high courts consider appeals against AFT decisions.

So far, so good. But litigants and lawyers are suspicious creatures, and their analysis of AFT verdicts over the past four years has raised serious concerns that the MoD's influence over the AFT might be skewing decisions dramatically in the MoD's favour. After all, the AFT functions directly under the administrative control of the MoD. The ministry has a major say in appointing members to each bench; and it controls funds, infrastructure and manpower. The MoD also bestows largesse - from Rs 67 lakh for five foreign visits by AFT members to subsidised canteen shopping facilities for the judicial members, arguing that they are MoD employees. Given that so many AFT cases involve the MoD as a respondent, petitioners can be forgiven for wondering how the bench can be expected to pass orders against the ministry that controls them in so many ways.

The Punjab and Haryana High Court has already directed in a judgment on November 20, 2012, that the AFT be "brought within the control of the department of justice in the ministry of law & justice". Cited in this judgment is an earlier Supreme Court ruling that directs that the different departmental tribunals (such as the AFT) should all be brought under a "wholly independent agency" under the law ministry, which must "try to ensure that the independence of the members of all such Tribunals is maintained".

In a report tabled in Parliament on March 20, 2013, the Standing Committee on Defence backed the setting up of a Central Tribunal Division under the law ministry. "The Committee are of the view that in order to build a strong and independent institution, this step will go a long way." The MoD quite illogically argues that the Act grants it the powers to make rules, appointments and administer the AFT. In fact, the Act grants those powers to the Centre, and the Allocation of Business Rules make the law ministry responsible for the "administration of justice".

Yet an official from the law ministry testified before the Parliamentary Standing Committee on Defence, "I have seen the files that the ministry of defence is opposing the move to leave the control of AFT. They do not want to leave the control. So far as filling of appeal is concerned, I think against almost each and every matter the appeals are filed."

It would be humiliating if the MoD were to be divested of control of the AFT. Instead, the MoD should accept the idea of a completely independent AFT and modify its internal processes - including those of the military - to cut down litigation in an organisation where it is now a growing problem.

The views expressed by the author are personal.

By the kind courtesy of Business Standard 

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