My Opinion/Oped on tumultuous existence of disabled soldiers in India : From StratPost

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.

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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.