Tinkering with tribunals will make them
useless
Harsha Kakar
The Armed Forces Tribunal (AFT) was established as a military tribunal
under the Armed Forces Tribunal Act in 2007. This was based on the Law
Commission’s 169th report of 1999, which stated that disciplinary and service
matters of military personnel required quick resolution and proposed a special
tribunal for para-military and armed forces. The act was steered through
Parliament by the defence ministry, leaving the para-military, Assam Rifles and
Coast Guard out of its purview.
The principal bench of the AFT is based in Delhi and it has regional
benches at Chandigarh, Lucknow, Kolkata, Guwahati, Chennai, Kochi, Mumbai and
Jaipur. Except for Chandigarh and Lucknow, which have three benches each, all
others have a single bench. Each bench comprises of a judicial member, who is a
retired high court judge, and an administrative member, who is a retired member
of the armed forces.
In a democracy, the judiciary by nature is lenient. However, the armed
forces because of their role and tasks must follow a disciplined structure,
without which they would fail. Hence, the armed forces are governed by their
respective acts and rules which are the Army Act of 1950, Air Force Act of
1950, the Navy Act of 1957 and the Defence Services Regulations. Disciplinary
punishments, granted under respective acts, are periodically challenged in
AFTs. Unless the circumstances and specific regulations are clarified to the
judge, leniency in judgement would impact military discipline.
Further, vagaries and conditions of service are vastly different from
any Central government organization. Hence AFTs have been liberal in approving
disability pensions, which an unrelenting bureaucracy challenges in the Supreme
Court to no avail. To advice the judicial member on service-specific issues and
apprise him of the conditions of service, an administrative member with decades
of service experience is appointed.
Till June 2017, the AFTs functioned at near full strength and was
effective. After the government issued unilateral notifications incorporating
changes in its composition and functioning, presently under challenge in the
Supreme Court, there has been no induction of fresh members, resulting in
almost non-functional courts. Thus, the very reason for creating the AFT,
speedy disposal of cases pertaining to the members of the armed forces, has
been lost.
On 1 June 2017, the government amended the AFT Act, amongst 19 other
existing laws, enhancing its powers pertaining to the appointment and removal
of members of various tribunals. Amongst the major changes which affect the
functioning of the AFT is the appointment of the administrative member.
The earlier rules had stated that the administrative member could be
retired major generals and above. However, the new rules state any person, ‘of
ability, integrity and standing having special knowledge of, and professional
experience of not less than 20 years’ in multiple fields not connected with the
armed forces but ‘in the opinion of the government is useful to the AFT’ could
be appointed. Thus, knowledge of service conditions and military law is not
essential, making such appointments redundant. It opens doors for appointing
IAS and other Central government service members, who lack even basic military
knowledge.
The chairperson of the AFT was appointed by the president, hence was difficult
for the government to remove. The changed rules state that he would be
appointed by the government in consultation with the chief justice, thereby
denuding his appointment. Earlier rules stated only a retired High Court or
Supreme Court judge could be the chairperson, whereas the amended rules state
‘any person who is qualified to be a judge of the Supreme Court’ could be
appointed. Thus, an advocate with ten years’ experience can be nominated as a
chairperson.
The appointment of the judicial and administrative members was amended
so that they would be appointed by a search-cum-selection-committee which would
comprise a Supreme Court judge, chairperson of AFT (appointed by the
government), defence secretary and another member of the executive. Thus, majority
power would be with the executive. The Supreme Court has disagreed stating it
cannot be tilted towards the executive.
The new rules place the AFTs under the defence ministry, whereas earlier
based on Supreme Court directions, they were placed under the law ministry. The
power to remove members has also been diluted and the MoD can constitute a
committee to recommend removal. These powers were earlier with the Supreme
Court.
The new rules have reduced tenure of members from five to three years.
It appears, when linked up with the other amendments, aimed at opening doors
for ex-secretaries of the government, who retire at 62, to be nominated to the
AFT, for which they would otherwise have been barred.
These amendments, which would alter the functioning of the AFT and make
it useless for the task for which it was created, angered many veterans who
practice in AFTs and they approached the Supreme Court. The court’s final
determination is likely in July.
The bureaucracy, worried about a possible court rebuff, advertised for
vacant posts based on its amended rules. It is now seeking the court’s
permission to go ahead with the selection. If it succeeds, the AFTs would
become just another example of the government’s apathy to serving and veteran
military personnel.
A fallout of the case has been that unless court orders are finally
issued, no fresh appointments can be made. Hence most AFTs are either
non-functional or those with multiple benches have just one functional bench.
This has impacted clearance of cases.
The sole reason for creating the AFT is now being lost. The government
which has denied the forces various facilities is now seeking to make the AFTs
redundant. It will require a concerted effort by all who support the military
to pressurise the government against making a mockery of an institution created
to speed up justice.
The writer is a retired
Major-General of the Indian Army.
By the kind courtesy of
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