OPed in 'The Tribune' on the Armed Forces Tribunal, military litigation and allied issues

The following OPed appeared today in 'The Tribune' on the editorial page:

REDEEMING THE IDEA OF ARMED FORCES TRIBUNAL

Free Armed Forces Tribunal from MoD control

Navdeep Singh

To be bold in what I say, or be soft, that’s my dilemma. But since it’s my personal opinion, I shall go with the former.

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.

Problems are multifarious, let me 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 except bewail and bemoan.

Control of the Ministry of Defence

The AFT currently functions under the Ministry of Defence which controls its infrastructure, appointments, rule-making and much of everything else. Though the independence of 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 in our democracy. The AFT is a part of, and dependent upon the defence ministry- 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 defence services and departmental bureaucracy, which of course is 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 the 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 & Haryana High Court in Navdeep Singh Vs Union of India (2012) to the effect that Tribunals should be placed under the Law & Justice Ministry, 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 defence ministry has not even provided basics such as security to the institution or official accommodation to members. Rules are also arbitrarily notified. For example, the defence ministry recently made it compulsory for petitioners to file affidavits with their petitions, also court fee is only accepted by way of 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, is supposed to 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, however the defence ministry 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. The language thereof (Section 31) has been shamelessly plagiarized from provisions of the Supreme Court of United Kingdom. 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 in L Chandrakumar’s case wherein it was held that jurisdiction of High Courts could not be ousted as per our Constitution and hence orders of the AFT would also have to be challenged as per Constitutional provisions. Notwithstanding the SC decision, the remarks of the parliamentary committee and orders of High Courts, the defence ministry 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 defence ministry has issued executive gazette notifications for amendment. Now can a Parliamentary Act be amended by an executive order? It would take half of a layperson to answer that.

Lack of respect to AFT orders

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 before the SC 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 a Parliamentary committee that only 303 judgements remained unimplemented whereas the actual number is estimated to be between 4000-5000. Written instructions have been passed not to implement orders unless the petitioner re-approaches Tribunal with an execution petition. Implementation is refused on the pretext that the AFT orders are not in consonance with ‘govt policy’! Now if govt policy is sacrosanct, then why would any interpretation be required at all from a Tribunal? Courts are required to interpret, read-down, harmonize, and if required, strike down policies, why is the defence ministry surprised?

Adversarial role of the defence ministry

The role played by the defence ministry is adversarial towards litigants. 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. As the joke goes, if a person files a plea that Sun rises from the East, it would be opposed by the Defence Ministry stating that it rises from the West. Unwanted, forced and imposed multiple litigation upto the SC is the order of the day and shockingly most appeals filed by defence ministry 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 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 defence ministry, concepts of justice and equality so cherished in our democracy and which form the grundnorm of the Preamble of our Constitution, would merely remain high sounding words with little practical usage for military litigants. 

The writer is a practicing lawyer and the founder-President of the AFT Bar Association