The following oped was published by StratPost yesterday and
can be directly accessed by clicking here.
I would request readers to squeeze out time to read it.
StratPost is a unique South Asian defence domain which gets
syndicated to Dow Jones Factiva
and its content is also available on The
Wall Street Journal (Professional Edition) and Lexis Nexis.
Opinion : No Country for Old Soldiers
Navdeep Singh
Hurtful is the cold reality that while the society at large
renders lip service aplenty for our soldiers, the practical ground reality is
somewhat removed from this theoretical compliment.
The rights and benefits of our men and women in uniform,
especially disabled soldiers, are under siege, and if there is any institution
to be thanked for protecting them, it is our Constitutional Courts, more
particularly the Delhi and the Punjab & Haryana High Courts, which have
time and again raised a protective shield for military personnel, veterans and
their families from terror unleashed by that very officialdom which was
designed to care for them.
Take for example Naik Suraj Bhan of the Punjab Regiment who
suffered psychiatric scars after extensively serving in counter-insurgency and
then suffering a fall while on duty. He was medically boarded out without any
pension with the system branding his disability “neither attributable to, nor
aggravated by military service” thereby denying him disability benefits. After
running from pillar to post, he finally got relief from the Punjab &
Haryana High Court but the Army appealed to a Division Bench of the High Court
and then to the Supreme Court. Thankfully the appeal was thrown out by the
Supreme Court, but how many of these poor infirm and disabled soldiers afford
assistance in Courts?
Suraj Bhan is today a non-entity, in a dreadful shape, walks
around naked, sometimes chained to his bed by insensitive villagers, but who
cares? The Government can afford to run riot with an army of lawyers let loose
on our disabled soldiers till the Supreme Court, but at what cost? While the
political executive opts to look the other way, there are thousands of other
disabled soldiers who are receiving notices from the Supreme Court on multiple
appeals filed by the Ministry of Defence against disability pension granted to
them by our High Courts and Benches of Armed Forces Tribunal. Lower level bureaucrats
in the Ministry of Defence and also the Army HQ are deriving sadistic pleasure
out of this game with nobody from the upper echelons really ready to tame them.
In any case, the top brass is prone to be misled by devious and disingenuous
noting sheets initiated from below on which no application of mind is put into
motion by the seniors.
The system is inherently unfair to our disabled soldiers.
The rules are outdated, the procedure of adjudging disabilities as
“attributable to, or aggravated by military service” by medical boards, which
is the declaration required for grant of disability benefits, is primitive and
medieval and reflects a mathematical and not a medical approach. Illegal
instructions are issued by officers sitting in Delhi to medical boards which
are in contravention of rules.
For instance, the rules provide that service in peace or
field areas shall have no bearing on ‘attributability’ of disabilities, but
locally issued letters to medical boards direct them that attributability (and
thereby disability pension) should not be granted if diseases are incurred in
‘peace’ areas. So, if a soldier in a particular high-pressure stressful
appointment in Delhi who may be on call 24 hours a day, suffers a heart ailment
due to stress and strain of service, he shall not be entitled to disability
benefits, but another soldier who may be performing simple laid back clerical
duties for a few hours a day in an Air Conditioned Office in Jammu would be
entitled to the said benefits for the same disability because Jammu is ‘field’
while Delhi is ‘peace’.
Primitive practices are still followed, such as forming
opinion on heart problems on the basis of a ‘14 days charter of duties’. The
service-connection of complicated heart problems in the Indian military is determined
by activities a person had indulged in the last 14 days prior to the onset of
the disease. It is common knowledge that heart diseases manifest over a long
period of time, isn’t it time to shun these outdated practices and deal with
such situations with a more scientific temperament? Hence rather than looking
into disabilities on a case to case basis, broad mathematical rules are applied
which challenge the very basis of medical science, logic and even common sense.
Rules promulgated by the Government state that if the cause
of the disability cannot be identified, then disability pension is to be
granted to the individual by taking the disability as attributable to service,
but in practice, in such cases disability pension admissibility is rejected by
stating that pension cannot be awarded since the ‘cause is unknown’ or that the
disease is a ‘constitutional disease’. Psychiatric disabilities, Post Traumatic
Stress Disorder (PTSD) and even worrying trends of suicides and fratricide are
being ignored and mostly being wrongly linked to ‘domestic reasons’ thereby
obliterating a connection with military service so as to keep negative
propaganda at bay, rather than looking within. But this approach is not only a
disservice to our soldiers but also cowardly whereby eyes are closed to an
issue which should engage us and which has a direct link with military life.
A soldier spends most of his service life in his unit and
away from his family, blaming such occurrences on ‘domestic reasons’ may be the
easy way out to escape responsibility but hardly moral, ethical or legal. And
then there are certain provisions that our commanders, doctors and even those
deciding entitlements sitting in tall towers in Delhi are unaware of. A
succinct example would be, that as per rules, even suicides are to be declared
as ‘attributable to military service’ if the occurrence is in a high altitude
or isolated area, and this has been the rule position since 1937 when the
British codified this aspect. But why would anybody want to go deep and study
such issues, scratching the surface is much easier, even if it leads to
deleterious consequences to the entitlements of our soldiers and their widows.
To deny benefits, at times it is remarked that such
disabilities may also have arisen had the particular person not been in the
Army. Very well. Here is a person who is 24 hours and 365 days on call under a
stern disciplinary code, mostly away from family, in a strictly regimented
routine, retires in his 30s, and can he be simplistically compared with say a
civilian employee who goes to office at 9 in the morning to return at 5, five
days a week, lives with his family in his hometown, enjoys holidays, retires at
60?. It shouldn’t take an expert to reply in the negative.
While a solider is away on military duty, wouldn’t common
ailments such as hypertension or heart diseases or seizures or psychiatric
disabilities or psychosomatic disorders get aggravated by even seemingly
insignificant incidents at the home-front like admissions or non-performance of
children in educational institutions, minor property disputes, lack of care of
aged parents and family back home, insensitivity of civil administration and
the like?
While the public at large feels that military personnel, due
to a seemingly ‘stress-free’ life and the emphasis on physical exercise, enjoy
a better health profile than civilians, this actually is merely an urban
legend. Studies during the 5th Central Pay Commission came to a conclusion that
while the average life expectancy of civilian employees was 77.5 years, it was
shockingly only 60-64 years for our jawans. Of course no official attempt was
made to go deeper into the statistics. To call such a life ‘stress-free’ where
in daily routine permission is meant to be sought even to go to the toilet or
visit a marketplace- innocuous things which other citizens take as granted,
would be faulty to say the least.
The icing on this ruinous cake is that the provisions of
Section 47 of ‘Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995’ are not applicable to the armed forces–
meaning that if a civilian employee gets disabled whether on duty or off duty,
whether due to service or otherwise, whether due to own negligence or not, in
whichever circumstance, his or her service is protected under the ibid Act and
if the said employee is not able to work, still he or she is to be paid all pay
and allowances till the age of 60 and full pension thereafter. While on the other hand, if similarly placed service-members
get disabled, then what to talk of full pay and allowances or even pension,
they can be discharged even without a disability pension.
Surprising it is not that most democracies, irrespective of
the kind of disability, offer some pension or monthly assistance to disabled
soldiers. The United States treats all disabilities sustained on duty or on
authorised leave as having incurred in the ‘line of duty’ as per Section 105 of
United States Code 38. Even Bhutan, under its Armed Forces Pension & Provident
Fund Scheme, 2002, caters for monthly payment to such disabled soldiers, even
if the disability has no link with the course of employment, till the age of
superannuation and then proper pension thereafter. India stands out like a sole
sore thumb.
Just proper adherence and broad interpretation of rules
would bring succour to disabled soldiers, but that is not how it is. Rules are
interpreted literally through a tint and not liberally as they are meant to be.
When the judiciary comes to their rescue, multiple layers of appeals ensue,
with the Ministry of Defence blaming the Army HQ and the Army HQ blaming the
Ministry, while the disabled bear the brunt of this ridiculous insensitivity.
The majority of petitions and appeals filed by the Ministry of Defence and
pending in the Supreme Court are appeals against our own disabled soldiers.
It is not that the issue has not been raised at the highest
level. In August, 2013, MPs cutting across party lines, led by Ms Smriti Irani,
had brought this morbidity to light in the Parliament wherein she came down
heavily upon the tendency of the Government to deal with and interpret
entitlements of disabled personnel restrictively and hyper-technically rather
than liberally as provided by rules, she also decried the Government’s tendency
of filing appeals till the Supreme Court against disabled soldiers forcing them
to litigate till they were either dead or broke. But of course, as expected,
not a tear was shed by the Ministry of Defence.
The Supreme Court in 2010 remarked that the Government was
treating disabled soldiers like beggars. On the persistent requests of a
battery of lawyers, the remarks were toned down and it was observed that the
Government was treating soldiers in a ‘shabby manner’ which was ‘extremely
unfortunate’. The High Courts have recorded many such remarks with the Delhi
High Court stating that the circumstances under which our soldiers operate are
‘unimaginable to those not acquainted with such situations’, even reminding the
world at large of the adage “When you go home Tell them, for their Today, we
gave our Tomorrow”. These are words which should have resonated within the
precincts of the officialdom, but these did not, and even after much hammering,
no change is seen on the horizon. They say change comes from within, but from a
hollow national core, what can be expected? Zilch?
Which brings us back to where I started. There is much more
to patriotism than chest-thumping or war-mongering. The inner demons, these
insidious issues need to be addressed first. These may not be glamorous enough
but are much more vital than the pomp and show of the parades that you see on
TV, clapping your hands, swelling your chest. Such pride is worthless when the
nation does not stand steadfastly behind the rights of the men and women in
uniform who give the prime of their youth for all of us, for you, for me, for
an ungrateful officialdom, for an ungrateful nation.
-----
Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and the
Armed Forces Tribunal. He was also the founding President of the Armed Forces
Tribunal Bar Association. He is a Member of the International Society for
Military Law and the Law of War at Brussels. He writes extensively at
www.IndianMilitary.info and tweets under the handle @SinghNavdeep.
