Rebooting Tribunals and recalibrating delivery of justice: Opinion piece for Live Law by Justice Virender Singh & Maj Navdeep Singh

The following co-authored piece has been published by Live Law today:

Rebooting Tribunals and recalibrating delivery of justice

Justice Virender Singh

and

Major Navdeep Singh

One of the lesser realised aftershocks of the Emergency was tribunalisation as it exists today. A blow so hard that despite multiple efforts by our High Courts and the Supreme Court, including Constitution Benches, to wipe out the deleterious consequences, the ruinous scars remain.

Tribunals in the present form were introduced through the 42^nd Constitutional Amendment when the concept was employed as a tool by the executive of the day to blunt-out judicial functioning and it was probably thought that by creating such bodies some of the subjects of litigation could be taken out of the purview of the independent judiciary with the said bodies functioning under and manned by the executive. Though the Supreme Court put its judicial weight against such blatant attempts through various landmark decisions such as RK Jain Vs Union of India 1993 AIR 1769, L Chandra Kumar Vs Union of India (1997) 3 SCC 26, Union of India Vs R Gandhi (2010) 11 SCC 1, Madras Bar Association Vs Union of India (2014) 10 SCC 1 and Rojer Mathew Vs South Indian Bank Limited 2019 SCC Online SC 1456, yet, despite such heavy dicta favouring independence of tribunals and streamlining of their functioning, the practical situation remains almost the same as it did without these judicial milestones. 

In the latest Constitution Bench decision in Rojer Mathew (supra), the Supreme Court set aside the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 promulgated by the Government which gave the Government unbridled power in the functioning and control of tribunals. The Court directed the Government to institute fresh rules in line with its decisions pertaining to independence of tribunals. New rules were then framed earlier this year by the Central Government but these carry out only superficial changes to the earlier rules and directly contravene law laid down by the Supreme Court.

Let us scan a few examples.

The new rules do not correct the current dispensation of tribunals functioning under parent administrative ministries against which they have to pass orders. This contravenes the Seven Judge Bench decision in L Chandra Kumar as well as the Five Judge Bench in R Gandhi wherein it was held that tribunals must not function under the ministries against which they have to pass orders and neither should the Members be granted facilities by such ministries. Hence, for example, the Armed Forces Tribunal today functions under the Ministry of Defence which is the first party in all litigation before it and against which it has to pass all orders. But reflecting a complete conflict of interest, the Ministry also happens to control its infrastructure, finances and staffing. Ditto is the case with the National Green Tribunal and other tribunals which have to pass orders against the Government and its instrumentalities. To top it all, complaints against Members of tribunals are also to be routed through the same Ministries. Even if it is taken only as a perception, the visible and invisible strings in such a scenario and the impact on the psyche of litigants can hardly be ignored.

The new rules also provide for the Secretary of the Ministry/Department to sit in the Selection Committee for Members of tribunals. Therefore, the person against whom orders are to be passed, also selects his/her adjudicators. This arrangement was deprecated and called “mockery of the Constitution” in Madras Bar Association. In fact, the Selection Committee has been incorporated in such a manner that it can function even in the absence of judicial representation whereas the Supreme Court has repeatedly called for primacy to judicial representatives in such selections.

In R Gandhi, the Constitution Bench had called for a minimum tenure of 5 to 7 years for Members of tribunals, however under the new rules, the tenure prescribed is 4 years with an upper age of 65 years, which also is theoretical. In case a retired High Court Judge is to be appointed, he or she gets a maximum of 3 years in chair since the retirement from the High Court is at 62 years. Practically, the tenure would be even lesser since only in rare circumstances is a Judge appointed soon after retirement. In such a situation, the non-judicial members get a longer tenure in comparison since they join tribunals at an earlier age. Interestingly, under these rules, the prohibition imposed on Members for further employment with the State and Central Governments has been removed.

Again in R Gandhi, vague qualification criterion for Members such as experience in economics, business, commerce, finance, management etc was eschewed and struck down. Still, in the new rules, the said criterion has strangely again been introduced for tribunals such as the Armed Forces Tribunal and the TDSAT, the logic and legality both of which is suspect.

For efficient delivery of justice, tribunals cannot function as stand-alone entities in vacuum without being configured with an efficient countrywide justice delivery system and our Constitutional Courts. Time and again the Supreme Court has emphasized on reducing the burden on the highest Court of the land but there seems to be no end to routine, innocuous and sometimes frivolous litigation reaching its gates. A Constitution Bench in Bihar Legal Service Society Vs Chief Justice of India 1987 AIR 38 had observed that the Supreme Court was only meant for exceptional cases and in most matters the High Court must remain the final arbiter. It was repeated thereafter in many decisions that the highest Court of the land must only interfere in Constitutional matters of general public importance or ones with pan India implication, however the Court is on the contrary burdened by mundane appeals and issues such as consumer and matrimonial disputes and direct appeals from tribunals which should not otherwise find themselves at the entrance invoking the majesty of the highest Court of the largest democracy. Today, the term “Special” in “Special Leave Petition” itself has become almost otiose and redundant. Even otherwise, access to the Supreme Court remains difficult and unaffordable for most litigants as also observed in RK Jain, L Chandra Kumar and recently again in Rojer Mathew. 

There could be a few suggested practical solutions to the conundrum:

(a) In line with the original thought behind the availability of Special Leave to Appeal under Article 136, the matters reaching the Supreme Court by their very nature must be very rare, involving points of law of general public importance or interpretation of the Constitution, pan nation implication or where there is a major conflict on a point of law between two or more High Courts. The Division Benches of the jurisdictional High Court, an equally efficacious Constitutional Court, must be the final arbiter as observed in Bihar Legal Service Society, L Chandra Kumar and Rojer Mathew. Of course, jurisdictions such as the exclusive and advisory jurisdiction of the Supreme Court cannot be exercised by any other Court.

(b) Tribunals must function only under the Ministry of Law & Justice and not under parent administrative ministries and with the best possible facilities to Members to attract the optimum talent, with a sufficiently long tenure and under the aegis of an overarching body such as the National Tribunals Commission as suggested by jurists like Mr Arvind Datar and also observed by Justice DY Chandrachud and Justice Deepak Gupta in their separate observations in Rojer Mathew. The Income Tax Appellate Tribunal is a shining and successful example of a Tribunal functioning under the Ministry of Law & Justice.

(c) Excessive tribunalisation must be avoided except in highly technical areas since litigants are known to express more faith in the regular judiciary. Whenever instituted, tribunals must not be laden with vague eligibility criteria such as experience in economics, business, commerce, finance, management etc thereby making all and sundry eligible. Rather than creating more tribunals, the High Courts need to be strengthened. Giving stable rosters to High Court Judges can also bring in more understanding in various specialised branches of law.

(d) Tribunals can also be created within the regular judicial system with existing judges since there is a view prevalent, and not without valid basis, that non-judicial ‘experts’ appointed as Members carry over to the tribunal with them a certain over-familiarity with the subjects which can breed subjectivity. Calling specialized bodies a cause of decadence and decay, American jurist Judge Simon Rifkind, way back in 1951, stated that it “intensifies the seclusion of that branch of law and further immunizes it against the refreshment of new ideas, suggestions, adjustments and compromises which constitute the very tissue of any living system of law”. There is yet another reason for the regular Court system being more robust, and that is that Courts never stop functioning even when facing critical shortage of judges, while tribunals and other quasi-judicial bodies come to a complete standstill because of non-appointment of Members or retirements. Interestingly, in certain classes of litigation, the pendency has rather increased after creation of tribunals.

(e) Widening of the intra-court appellate jurisdiction of the High Courts for appeals from Single Bench decisions to Division Benches, thereby giving finality within the same High Court in more subject matters, must be given due thought so as to provide an affordable and accessible remedy and to unburden the Supreme Court from hackneyed cases. This could be more practical than deliberating upon a ‘Court of Appeal’ sandwiched between High Courts and the Supreme Court.

The issues concerning tribunalisation and interconnected delivery of justice are not ones which cannot be tackled. It seems that though the political will to harmonise these issues was never lacking, due to some reason or the other, and want of consensus amongst stakeholders including opposition by various ministries, we remain stuck in a whirlwind of total chaos. As back as on 2^nd August 2001, the then Law Minister, late Mr Arun Jaitley, had stated in Parliament that the Government was moving towards implementation of the decision in L Chandra Kumar by creating a separate Central Tribunals Division. Something that has not fructified. More recently, the current Law Minister had also appreciably alluded to the decisions of the Supreme Court dealing with tribunals in his opinion piece for the Indian Express on 20^th April 2017. The Prime Minister had also red-flagged issues related to tribunals in a speech rendered on 4^th April 2015.

With the political executive having shown its willingness to tackle these vexed issues, and on the strength of existing dicta of the Supreme Court, there should be no reason why these matters should not be resolved to the full satisfaction of all stakeholders, including the litigating public, at the earliest. It would rather be in the fitness of things to robustly overrule opposing voices that are not letting the vision of the political executive, the spirit of the Constitution and the decisions of Constitutional Courts take full effect and shape.  

 -----

Justice Virender Singh is Former Chief Justice, High Court of Jharkhand & Former Chairperson, Armed Forces Tribunal.

Major Navdeep Singh is a lawyer at the Punjab & Haryana High Court & Member of the International Society of Military Law and the Law of War.

Joint opinion piece with Lt Gen Satish Dua for the Sunday Guardian- The Military has no Martyrs

Lt Gen Satish Dua and I have co-authored this opinion piece for ‘The Sunday Guardian’ where we argue why the term ‘martyr’ is not appropriate for fallen soldiers, and in fact it is unsoldierly.

The op-ed can be accessed here at the official website of The Sunday Guardian.

Book release- Military Pensions: Commentary, Case Law & Provisions (Now available for pre-order with inaugural discount)

MILITARY PENSIONS: Commentary, Case Law & Provisions is a treatise containing easy-to-understand commentary on various types and modalities of pension with the law governing the subject and a range of applicable policies, rules and official letters, including some rarely available ones.

Instead of publishing Three Volumes on Paperback, we decided to have it all in one big volume. It is a large format Hardcover Reference Book with 33 Chapters covering the length and breadth of the subject. More details of the book are available at www.navdeep.info

The book has been soft-launched and is now available for order/pre-order at https://notionpress.com/read/military-pensions (Use the Coupon Code VICTORY for limited period launch discount). You may order it now and the book shall be delivered soon after deliveries are permitted to commence by the Government.

A formal global launch with availability on all channels shall be initiated soon, in better times, after the lockdown is lifted.

The Reference Book is priced at Rs 1299/- and is available at 15% limited period discount as above.

Part of the proceeds shall go towards military veteran welfare. 

"Won’t be talking point a few years down the line", my op-ed for The Asian Age on women in the military

My opinion piece for The Asian Age (23^rd Feb 2020) on women in the military, in the backdrop of the Supreme Court decision on the subject:

Won’t be talking point a few years down the line

Constitutional Courts propel equality in the military

Navdeep Singh

The decision of the Supreme Court of India granting women the same career progression as men in the Indian Army, has generated quite a debate. The Apex Court has upheld the judgement of the Delhi High Court which had asked the Ministry of Defence to consider women for grant of Permanent Commission (PC) at par with male officers. Till that point of time, women officers were only allowed Short Service Commission (SSC) under the “Women Special Entry Scheme” upto a maximum of 14 years, while male SSC officers were eligible to be considered for PC. The minimum service required to earn a pension in the defence services being 20 years, women officers were mandatorily released from service at crossroads in mid 30s, without a permanent career, without financial backup or social security and at an age when family and other commitments are at peak. 

The debate on the subject however seems to have veered off the mark. Many commentators, including some military veterans, have questioned the physical ability of women to command troops in frontline combat, while others have raised a worry about a situation if a woman officer is taken Prisoner of War (POW) by the enemy and some have even spoken as to how would women give 100% to their job considering there might be maternity breaks in between.

Much of these discussions are otiose.

Firstly, the issue before the SC was not frontline combat but simply grant of PC and ‘command appointments’ instead of ‘staff appointments’ and that too in earmarked posts. While the litigation was pending, the government had issued a policy allowing women to be considered for PC with a caveat that they will not hold ‘command’ positions at par with men and would only hold specified posts. The policy also unreasonably required women to provide the option for PC within 3 to 4 years of service while there was no such condition imposed on men. It was the contention of the litigants that they could not be slotted in specific posts when there were no such fetters on their male counterparts. It may be noted again that the issue was not “command” in combat arms on the battlefront but regular appointments involving command of troops in branches in which women were already serving as SSC Officers. In any case, such a policy was absurd on the face of it since it allowed them to hold myriad appointments while they were SSC Officers but restricted their employability as soon as they became permanent. In certain quarters there was a fear that women would usurp ‘soft’ appointments leading to additional pressure on males who would remain deployed in tougher areas. However, their employability on varied (rather than restricted) appointments should now rather terminate this fear since it is known to all that it would be a level field hereafter, without any favour based upon gender.  

Secondly, when there is no deployment of women on frontline combat, there is no question of them being taken POW. And even if hypothetically they were so deployed, they are soldiers first and then women, and our concern should be regarding an Indian soldier taken POW, and not a woman. In any case, to raise an issue which is an impossibility just to create some kind of an emotionally chilling effect does not seem judicious.

Thirdly, the bogey of maternity leave is quite lame. It is well known that this is likely to emanate during the younger years and not during the later years when such officers are granted PC. When this has not posed a problem during SSC, why would it interfere during PC when the incidence, on the contrary, is likely to be very low? Members of other uniformed organisations, such as the Police and the Central Armed Police Forces, have accepted them with open arms without any impediment and it is painful to hear such regressive comments from members of the military community. Needless to state, some of these organisations deploy women in much tougher roles and in lower ranks.

I have always maintained that women in the defence services are not meant for parades and showcasing in events but must be placed in responsible positions in multiple roles to the greatest extent possible. The switch-over would result in some churning and may require some fine-tuning but a few years from now, this will not even remain a talking point with women & men well assimilated in a system characterised only by merit and competence. he positive and very mature statements of the Raksha Mantri and the Army Chief only point towards an egalitarian and progressive time ahead for the military aided with some practical and well-chiselled policy interventions in the near future.

- - -

The author is a lawyer in the Punjab & Haryana High Court and Member of the International Society of Military Law and the Law of War.

Oped for Times of India | No need to vilify OROP or disability pensions: Problem of burgeoning military pension bill has practical solution

 My oped for the Times of India:

Burgeoning Military Pension Bill- the need for practical solutions

There is a need for ingenious solutions rather than vilification of concepts like OROP or Disability Pension

Major Navdeep Singh

Defence spending is again in news, and with it the common censure of the allocation being consumed mostly by pay and pensions. While we may choose to weigh in with emotional calls of soldierly pride and sacrifice et al, dispassionately seen the hazard the pay and pension bill poses is not easy to ignore. But then the solution does not lie in a maladroit approach of demonising concepts such as ‘One Rank One Pension’ (OROP) or disability benefits.

The heavy bill and its ascension with every pay commission is indeed a cause of worry. Though the defence services have been trying to shed some of their manpower, it is unlikely that this modest curtailment would result in significant savings.

So what is the solution?

The straight response would be to drastically expand the concept of Short Service Commission (SSC), making it more attractive and less exploitative, and also introduce a Short Service Engagement scheme at jawan level with contributory pension, while concomitantly reducing the permanent staff under the existing defined pension (OROP) system. This arrangement can result in maintenance of military strength at the current levels but greatly reduce the pension bill.

Currently, officers are being offered SSC of 10 to 14 years after which they are compulsorily released without any pension, except those who opt (and are selected) for permanent commission. Previously, officers were allowed to exit after 5 years. Needless to state, the current structure leaves them at crossroads without pension or guaranteed employment almost in middle age with peak family commitments. The way out of the quagmire is simple. Such SSC officers must be made members of a contributory pension scheme under the National Pension System (NPS) as is now applicable to civilian employees. Officers under the Short Service Appointment scheme of Indian Coast Guard are already members of NPS, denying the same to their military counterparts is anyway incongruous. There is also a requirement to protect their status or seniority if they opt for civil government employment after release. Similarly, there is a need to introduce a Short Service Engagement scheme for recruitment at lower ranks- individuals who will serve for 10 years and then released with NPS benefits and “ex-serviceman status”. Obviously, these Short Service schemes would be voluntary and concurrent to regular entries which shall continue to be on OROP dispensation. However, gradually the number of the former may be amplified and the latter reduced.

The establishment would have to find ingenious, albeit practical and non-exploitative ways, to reduce the bill, and demonising OROP or disability pensions is not one of them. OROP is mandated by the Cabinet and was promised by successive governments to cater to the massively curtailed tenure of defence personnel who start retiring in their 30s. There is no going back on it. The way out is to reduce future OROP beneficiaries by rationalising permanent staff.

Similarly, the recent furore over disability pensions was unpleasant. Frequent transfers, regimented lifestyle, curtailment of freedoms and inability to cater to domestic commitments result in aggravation of common medical conditions in soldiers, a reality all militaries face globally. Finding ways to reduce disability benefits is a cloddish approach which will not curtail the incidence of disability. Rather, the attempt should be to introduce policies to reduce stress & strain, provide comfort and succour to soldiers to reduce the prevalence of disability and consequently disability benefits. It would be imprudent and indeed irrationally unique for us as a nation to attempt to vilify military disabilities to save pennies rather than making lives of soldiers better.

Lateral induction of soldiers to other organisations such as Central Armed Police Forces (CAPFs) has also been propagated by successive pay commissions but opposed by the Ministry of Home Affairs (MHA). Perhaps the reason might be valid to an extent. CAPFs would not want military veterans parachuting into their ranks and blocking their career progression. But then there could be a solution by simply raising a separate organisation of military veterans under the MHA and employ them for duties configuring with their past expertise or utilize them for national reconstruction roles or executing government schemes.

The military pension bill is not an unruly monster, however what is required to tame it is a balanced but determined and humane political executive, and it seems the current Raksha Mantri might just fit that description.

The author is a high court lawyer and writes on law, military and public policy.

"Maimed by the System" available at 33% discount till Independence Day 2019

 “...it is hope & triumph that the book embodies, not despair...”

My book, “Maimed by the System” would be available @ 33% discount till Independence Day, 15th August, 2019.

The discount is only applicable through this link-www.notionpress.com/read/maimed-by-the-system

(Use Discount Coupon- HUMANITY)

Opinion piece in ‘The Print’: “Problem isn’t taxing disability pension of Armed forces, but demonising disability”

Ms Ratna Viswanathan and I have co-authored an opinion piece for ‘The Print’ titled “Problem isn’t taxing disability pension of Armed forces, but demonising disability”, which covers the raging controversy on the issue of disability pension, the vilification and demonising of military disabilities and the issues of concern that relate to low medical category soldiers in the military.

The same can be accessed by clicking here.

Explainer on the concept of Disability Pension, Invalidation, and the recent controversy over tax exemption thereupon, viewed historically

EXPLAINER ON THE CONCEPT OF DISABILITY PENSION, INVALIDATION AND THE RECENT CONTROVERSY OVER THE TAX EXEMPTION THEREUPON, VIEWED HISTORICALLY

Though I would be soon writing a detailed opinion piece again on military disabilities and our faulty approach on the same, it becomes important to put out some data and a few historical facts on the recent controversy.

The CBDT Circular: The CBDT has recently issued a circular stating that Income Tax Exemption on disability pension would only be allowed to those disabled personnel who are invalided from military service and not to those who are released on completion of tenure or superannuation. It seems that the term ‘invalided’ has been taken by the CBDT to mean those who are medically boarded out prematurely from military service before their actual retirement, discharge or superannuation. The controversy over this term is however not new. However, it becomes important to clarify this issue in its historical perspective since some of this information would not be available with the Finance Ministry, the CBDT, the Ministry of Defence and even the Defence Services.

History of Disability Pension: Wound, Injury and Disability Pension has remained applicable to military personnel (combatant as well as non-combatants and even ‘private servants’ of officers during old times), in one form or the other since the days of the Crown. As the terminology suggests, it was granted for disabilities suffered during the course of service or illnesses incurred while in service.

The term ‘Invalid’: The term invalid or invalided in military parlance simply referred to a person who became an Invalid (disabled) while in military service. It had no connection with “invaliding ‘out’ prematurely from military service”. A person who was disabled while in military service was termed as an Invalid and when such a person was discharged, whether prematurely or on completion of his terms, he was discharged through a medical board and termed “invalided from” service (and not invalided ‘out’ of service).

Exemption of Income Tax, 1922: Income Tax was exempted in the year 1922 for invalid soldiers and the same terminology as above was used in the applicable military instructions as well as the exemption granted by the Finance Department.

Governor General’s Orders of 1926: Disability Pension attained exalted status in the year 1926, when GM Young, the then Secretary to the Government of India, Army Department, issued a notification in the name of the ‘Governor General in Council” stating therein that no public claim or public debt shall be recovered from the Wound, Injury or Disability Pension of an officer or soldier. It may be noted that this was applicable to disability pension across the board and the term ‘invalided’ was not even pressed into service.

Confusion caused by 1940 Regulations: The confusion on the term ‘invalided’ however raised its ugly head when Pension Regulations, 1940, were published. Here, the term ‘invalided’ was used in provisions related to disability pension giving an impression that the term applied only to those who were prematurely boarded out of the military. Although, the same regulations in the same breath also stated that a person retiring on completion of service limits would be granted benefits ‘as if he had been invalided’, again multiplying the confusion.

Corrective action by Government of India to clear the confusion: The problem created by the original (correct) definition of ‘invalided’ as also signified  by the notification issued by the Secretary, Army Department, and the one that came to be incorrectly understood by military accountants due to the publication of Pension Regulations 1940, however was resolved by the Government of India once and for all in the year 1950 when the Entitlement Rules, 1950, were promulgated and it was specifically underlined and provided that the term ‘invalidation’  for the purposes of disability pension shall mean all military personnel who at the time of release from service are in a medical category lower than the one in which they were recruited. Meaning thereby, all Low Medical Category personnel who were fit at the time of entry into service were conclusively declared to be falling under the category of ‘invalidation’ thereby bringing the definition back to its origins. These Rules of 1950 were officially appended with the existing Pension Regulations by the order of the Central Government. This was further provided in Ministry of Defence Letter No A/22255/AG/PS4 (d)/2725/Pen-C dated 05 November 1969. The same was reiterated later in the form of Rule 4 of Entitlement Rules, 1982. Needless to state, this action was very important and required since there can be multiple categories of disabled personnel within the Army and to perpetuate discrimination amongst them based upon the type of exit from service would amount to hair-splitting. Some such categories are- those who are prematurely boarded out since they are unable to cope up with life in the military after getting disabled, those who opt to continue and serve despite the disability and then retire on regular completion of terms/service limits, those who are discharged since no ‘sheltered appointment’ is available, those who opt out of service because of lack of promotion due to disability, those who are not promoted and hence retired early at the age prescribed for lower ranks etc

Litigation: The discrimination between disability benefits between those who are prematurely medically boarded out and those who opt to continue to serve the nation despite the disability also became a subject of many a litigation. Some such examples are Civil Writ 2967/1989 Mahavir Singh Narwal Vs Union of India as affirmed by the Supreme Court in SLP 24171/2004 disposed on 04 Jan 2008 wherein the Delhi High Court explained and interpretation the term ‘invalidation’ and the decision of the Supreme Court in Civil Appeal 418/2012 in Union of India Vs Ram Avtar and of course in Civil Appeal 5591/2006 KJS Buttar Vs Union of India.

Going back to the confusion of 1940: The term “invalidation” is hence adequately defined by the Rules of the Government and interpreted by Constitutional Courts. The CBDT, it seems, has however restrictively interpreted the term as per its confused definition as it existed between 1940 (When Pension Regulations, 1940 were promulgated) and 1950 (When Entitlement Rules, 1950 were put into force to clarify the term ‘invalidation’).

Demonisation of military disabilities: What we also see today is unnecessary demonisation of military disabilities. The incidence of aggravation of disabilities in military personnel is much higher than civilian employees simply due to the reason of frequent movements and unsettled life (which ironically continues even in peace family stations due to an extreme shortage of family accommodation), regimented lifestyle and barrack life away from family, inability to cater to domestic commitments, inability to fulfil sexual desires, curtailment of freedoms, applicability of a disciplinary code 24X7, exposure to stressful situations including operational areas etc. Disability hence is not a sign of weakness and even the bravest of the brave battle-hardened soldier can fall prey to it. As far as the rumour of Generals cornering disability claims is concerned, the incidence of a disability incurred in-service is bound to be higher in senior ranks simply because they retire in their late 50s (upto the age of 60) while soldiers start retiring in their 30s. The allegation of ‘fake’ or ‘feigned’ disabilities (though not the reason for the CBDT Circular) is also laughable since the incidence of disability is first endorsed by an Initial Medical Board, then by re-categorization medical boards and then finally by the Release Medical Board at the time of retirement. There are hence multiple doctors, all different and at different locations in the country, who endorse the existence of a medical condition and its percentage. So far as the thought as to why aggravated disabilities such as heart disease, hypertension, depression, neurosis, psychosis etc are eligible for disability benefits is concerned, the same is not some kind of a favour to our soldiers since it is provided in pensionary rules for military as well as other uniformed personnel that such disabilities are affected by stress and strain of service and eligible for disability benefits.

Rules for disability benefits in India

Disabilities in other democracies, their incidence and tax status: In this context, it would be instructive to examine military disabilities in other nations. An apt example would be the US which also has an operationally committed military and the pension rules are pretty much similar to ours and numerically the active duty personnel are roughly the same. As per the official data maintained by the Government, the incidence of disability in the military has gone up in the US by 117% from 1990 to 2018. Also, a total of 4.75 million veterans in the US are in receipt of disability benefits (See official data here). In our country, the number of disability pensioners is estimated to be less than 0.2 million.  The disability pension and compensation in the US is exempted from Tax as provided by Publication 525 of the Internal Revenue Service. Should we be concerned about the rise of incidence of disability in our soldiers and their deteriorating health profile and provide them with comfort, care and succour, or should we denigrate those who are suffering from illnesses and rather count pennies? More than others, I ask this from the serving military fraternity.

Veterans with Disability Benefits in the US

Tax Exemption to disabled veterans in the US

The above is meant to clarify the technical and factual details on the subject since most of the debate on the matter was following an emotional track. Emotions and high sounding words like ‘sacrifice’ etc etc aside, the matter has to be dealt under the right technical perspective and I am personally sanguine that the political executive would be able to address this issue if provided the correct inputs and data.  

Thanks

Navdeep.

The Budgam Helicopter Crash: Fog of War and Culpability

I write for The Quint on the unfortunate helicopter crash which is being speculated to have been caused by friendly fire and wherein it was hinted in the media that the concerned officers may be tried for culpable homicide.

The Budgam Helicopter Crash: Fog of War and Culpability

Major Navdeep Singh

The Budgam helicopter crash incident of 27^th February in which we lost precious lives of air force personnel, is again in the news.

There were reports in the media that the chopper came down on account of friendly fire and that the Air Force was contemplating trying the officers responsible for the incident for culpable homicide. I even saw reports and comments on social media that the pensionary and other benefits of the families of the fallen would be determined as per the conclusions reached in the investigation.

I personally find the above quite odd for a variety of reasons.

Firstly, while the hint of the friendly fire aspect might be true, I do not feel that a conclusion of all attendant circumstances qua the fixing of the blame can be reached until the statutory Court of Inquiry convened by the Air Force under the Air Force Rules renders its report.

Secondly, in case someone connected with the procedure has casually stated that the officers would be tried for culpable homicide, the statement seems irresponsible simply due to the fact that till now the Court of Inquiry has not reached a conclusion or ascribed blame and hence it would be absolutely reckless and immature for any person officially associated with the proceedings to make such a statement.

Thirdly, the decision to take action against the guilty, if any, is of the concerned competent authorities under law and not that of the Court of Inquiry, which is simply a fact finding body and recommendatory in nature.

Fourthly, even before the conclusion of the Court of Inquiry, and establishment of culpability, it would totally be inappropriate to prejudge the matter and far-fetched to comment upon the sections of law under which a person would be tried. In fact, this is one aspect that the defence services, de hors the instant case, need to be quite alive about, since statements such as “the concerned official(s) shall be given exemplary punishment” start flying left, right and centre even from senior officers on any unfortunate happening or alleged crime, which clearly gives rise to the fear of institutional bias and prejudgement.

Fifthly, the incident, though extremely unfortunate, can plainly be ascribed to fog of war and battle ambiguities, albeit highly undesirable in a limited conflict situation, and would at the most be a case of negligence leading to death (Section 304-A Indian Penal Code), and cannot, by any stretch of imagination, be termed as culpable homicide (Section 299 Indian Penal Code), which requires an element of “intention” or “knowledge”. In any case, there are specific provisions related to such incidents available under the Air Force Act, such as Section 62 (Offences in relation to aircraft and flying) which again grade the wrongdoing into higher and lower category based upon the fact whether the action was wilful or otherwise.

Sixthly, it would be inane to tag the issue with release of benefits to the families of those who unfortunately passed away in this incident. The grant of benefits to the families would have no connexion whatsoever with the culpability of the concerned employees. The families of the fallen are casualties in an operational area and are eligible to full and liberalized pensionary benefits and ex-gratia as is available to deaths in operations. The locale of the incident is a notified operational region.

While the incident was extremely unfortunate, it is hoped and expected that the Court of Inquiry reveals the nuts and bolts of the happenings of that fateful day, not only to establish the truth, but also to ensure that such mishap never happens in the future.

I am confident of the fact that not only would the Air Force go into the very minute details of the matter without prejudging any guilt of any personality involved, but would also display the moral courage expected of it in unravelling the truth.

Irrespective of the regrettable circumstances surrounding this incident, the nation and the defence services firmly stand behind the families of those whom we lost that day in February.

Need for the military community to stay away from disruptive and litigious tendencies based on hearsay

I am all for enforcement of legal rights and fully believe that one of the most precious privileges of a citizen in our democracy is the ability to challenge the might of the State. However a recent phenomenon of fanning litigious tendency in the military, that too, based upon hearsay or perceived injustice, is quite alarming.

A false picture is embedded in many minds that litigation or creating an uproar coupled with notional and emotional calls is the answer to everything, forgetting in the bargain that Courts cannot intervene unless there is infringement of a legal right or policy or rule or when there is a patently perverse and arbitrary action. Every time a matter comes to note, many within the military community take recourse to commenting upon it, without even checking its background and veracity, displaying a tendency that goes beyond even trade unionism. Some even start floating calculation sheets based upon intended litigation, again on tittle-tattle, thus raising expectations without reason which might ultimately result in dejection and frustration.

While it is true that the system of redressal of grievances in the defence services leaves much to be desired, and I have written on it earlier, this disruptive tendency might succeed in drawing eyeballs on social media but only a graceful approach, that too limited to real and solid issues, can help in resolution- institutionally or legally. Many members of the military community also start deriding senior military leadership on social media by creating a hullabaloo but take no steps to institutionally resolve a matter by even putting it in writing to the concerned quarters or finally taking it to its logical legal conclusion. Again there might be instances wherein senior leadership would have taken actions that were not well-rounded but that may not always be the case. And where there is actual injustice, again the way to address is to take legal recourse in a refined manner, with malice towards the anomaly, not against the personalities involved.

Not just seniors, even civil servants continue to bear the brunt of the military community on social media. Most of this anger emanates from the real and perceived acts of bureaucracy in the Ministry of Defence. But one must not forget that the actions of elements in the Defence Ministry are not reflective of the entire civil services and neither should one’s vision be so restricted that the impression of the entire civilian staff of the Republic of India is tagged with what happens in some corner of a table of a junior staffer of one ministry in Delhi. The projection that goes out on social media is that the military is being persecuted, which we all know is not the case and one can imagine the negative impact this has on the morale of the rank and file, almost bordering on disaffection. This fastest finger first syndrome is also spilling into other domains. Certain messages with communal undertones are also spread on military groups, some injected by the adversary, and these are further embellished with utterly immature comments not expected from someone who has worn the uniform.

We fail to realise that this subtle injection of hate is meant to divide our society and this subtle injection of disaffection is meant to neutralize the strength of our military and create schisms.

Be aware. Be careful. Be wise.

Thanks,

Navdeep.