Curtailment of judicial independence was the flavour of the
era, when during emergency, through the 42nd Constitutional amendment, Tribunalisation
was propelled and pushed to the center of our jurisprudence.
While the concept of Tribunals in some form may not seem unattractive,
its constant suffocation by an overawing executive definitely is. To say that
the executive is tacitly trying to take over judicial functioning by way of
Tribunalisation would be an understatement. And the proof thereof is the
strange arrogance and incorrigibility of the executive leading to
non-implementation of judgements of Constitutional Courts such as RK Jain Vs UOI, L Chandrakumar Vs UOI, UOI
Vs R Gandhi and Navdeep Singh Vs UOI ordaining liberation of Tribunals from
executive control.
Topping the charts in the blow to judicial independence is
the Armed Forces Tribunal (AFT). The AFT was ostensibly created to have an
independent judicial mechanism to redress grievances of armed forces personnel
arising out of service and disciplinary matters. Bizarrely, it has been made to
function under the control of the Ministry of Defence (MoD) against which it is
supposed to pass orders and which happens to be the first party in all
litigation before it. The acute conflict of interest and control of the MoD not
only extends to infrastructure, manpower and facilities of adjudicating members,
but also to rule-making power which gives MoD the leverage to blunt out the
judicial effectiveness of the system. The AFT also has the unique distinction
of being a toothless body without powers of civil contempt or any mechanism for
implementation of its orders. Lament and bewail is all that the litigants can
do if MoD decides not to implement AFT’s decisions.
The Supreme Court, in Prithi
Pal Singh Bedi’s case, had called for an independent appellate body
composed of non-military civilian members. However for an objective litigant,
the creation of AFT has been a fright. The litigant who used to approach real Courts
before the creation of the AFT can hardly be blamed for his or her
disappointment since he or she is now left with the option of a Tribunal that
not only functions under the thumb of the opposite adversarial party but is
also semi-manned by members with decades of military service under the same
party and which also does not have any power to ensure implementation of its
own orders. To make judicial review for litigants difficult, there is absence
of a provision of a vested right of appeal against AFT orders and an appeal
according to the AFT Act can only be filed to the Supreme Court in case a 'question
of law of general public importance' is involved and that too after seeking the
permission of the AFT itself for filing such an appeal. It is yet another story
of mediocrity that provisions related to appeals from AFT orders have been
blatantly plagiarised from the House of Lords and UK’s Supreme Court. The executive
clearly wanted the AFT to be the first and the last court for defence personnel
but the saving grace remains that thankfully the Supreme Court has recently, in
an interim order, directed that High Courts shall continue to hear challenges
to AFT orders under the writ jurisdiction.
What has been detailed above only points out to one
inevitable conclusion- that though the AFT came to be established with a noble
intention impelled by the Supreme Court, during the course of its birth, there
was an insidious attempt to bypass the jurisdiction of our fiercely independent
Constitutional courts without providing any vested right of appeal. The
provisions were structured in a way so as not to render any right of remedy for
litigants against AFT’s orders but at the same time providing leverage to Government
with its large resources to appeal to the Supreme Court against every order of
the AFT passed in favour of litigants by terming it as involving a ‘point of
law of general pubic importance’. It is also common knowledge that most of the
appeals filed by Ministry of Defence before the Supreme Court are against grant
of disability pension to disabled soldiers. A dubious and sadistic distinction
of the Ministry!
How has the AFT fared? The performance has been personality
oriented. While some adjudicating Members have passed landmark judgements,
others have faced flak. Areas where beneficial or liberal interpretation of the
written word is required, such as disability benefits to disabled soldiers,
have remained problematic. While some benches have gone all out to positively
iron out difficulties of such disabled soldiers fully knowing that military
personnel do not have the protection of service in case of disability and even
otherwise face early retirement as compared to their civilian peers, other
benches have chosen to even ignore law laid down by the Supreme Court and High
Courts by inculcating a literal and textual approach leading to much
discontentment amongst litigants forcing them to again approach constitutional
courts for relief by seeking setting aside of AFT decisions. Strong words by Constitutional
courts against AFT’s approach in many judgements, which should have resulted in
humility and correction, have not helped and have only increased obstinacy
which runs counter to judicial discipline and decorum. The hyper-technical
approach coupled with the fact that the AFT functions under MoD has simply led
to one pervasive thought of the end user- that the AFT seems more like an
extension of the State rather than an independent judicial body.
The solution is not complicated or far to seek but the path has
man-made obstacles buoyed by the executive. The easiest resolution, as has been
postulated earlier also by many jurists, is to increase the number of judges
and strengthen the real judiciary and abolish the system of Tribunals except where
subjects requiring high expertise in areas like technology and engineering are
involved.
If not, or till the time not feasible, Tribunals should be
made thoroughly independent and placed for administrative needs under the
Department of Justice of the Ministry of Law and Justice without any control of
any parent or administrative Ministry. This is the system followed in all
democracies for judicial bodies. In fact, even the Supreme Court of Pakistan in
2013 in SA Nasir Vs President of Pakistan
has ruled that Tribunals are performing judicial functions and should be freed
from executive control. The Supreme Court of Canada in the famous 1992 verdict
rendered in R Vs Genereux had ruled
that military tribunals lacked autonomy and left them vulnerable to
interference by military and the government and litigants had a right to
independent and fair tribunals. In UN General Assembly’s Report No A/68/285,
August 2013, on independence of Judges and Lawyers, it was reiterated that “competence,
independence and impartiality of a tribunal is an absolute right that is not
subject to any exception” and that tribunals “may be established only by the
Constitution or law, respecting the principle of separation of powers”. Sadly,
our system finds these concepts alien.
With specific reference to the AFT, the following steps are
logical for its redemption:
(a) Removing control of MoD and placing it under Department
of Justice of the Ministry of Law & Justice, as already mandated by
Constitutional Courts.
(b) Providing proper facilities and security of tenure, but without
the carrot of reappointment, to adjudicating Members from the Department of
Justice and not from the Ministry against which orders are to be passed, as directed
in Paragraph 56 (xiii) of Supreme Court’s decision in UOI Vs R Gandhi.
(c) Arming the AFT
with powers of civil contempt and execution to ensure compliance of its orders.
(d) Appointing only those persons as Judicial Members who
have had a strong background of service or constitutional law and ensuring through
a capsule course that former military officers appointed as Administrative
Members do not carry the rigidity or baggage of military service over to their
new roles.
(e) Ensuring that career bureaucrats are not made members of
the Selection Committee when considering the appointment of former High Court
Judges as Judicial Members of the Tribunals, as provided by rules in vogue.
Till progressive and proactive steps are undertaken, the
following haunting words of the Calcutta High Court of 2012 in Dharam Godha Vs Universal Paper Mills
would continue to worry every seeker of justice:
“The outsourcing of
judicial work which has become the fashion of the day has resulted in several
classes of matters that were previously before the Court now being parked with
Tribunals manned by bureaucrats or non-judicial members with no legal training
or acumen. What is evident from the impugned judgment is bound to follow if
matters as to justice and equity that many have spent their lives without fully
comprehending are left to Tribunals manned by the uninitiated to pronounce
upon; justice then becomes the casualty and inequity the order of the day”.
Yes, also in the words of Lord Chief Justice Hewart, “Not
only must Justice be done; it must also be seen to be done."
Jai Hind.
Maj Navdeep Singh is a
High Court lawyer and the founding President of the AFT Bar Association.
