Today’s Oped in ‘The Indian Express’ : Compromise of Judicial Independence- The AFT and other Tribunals

Following is my oped on Tribunals and their judicial independence, which was published by ‘The Indian Express’ today in their Army Day Special.

COMPROMISE OF JUDICIAL INDEPENDENCE:  AFT AND OTHER TRIBUNALS

 The Indian Express

January 15th, 2014

Navdeep Singh

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.