Oped in “Business Standard” on the lack of judicial review over orders of the Armed Forces Tribunal

I am glad that despite the very shallow understanding of this cataclysm by many serving and retired members of the military community and the harm it has caused to the fundamental rights of the generations to come, this issue has gained the attention that it deserves.

Below reproduced is Col Ajai Shukla’s detailed analysis in Business Standard on the subject of lack of judicial review of the orders of the Armed Forces Tribunal:

Dead IAF pilot's father writes to PM

Gurbax Singh Dhindsa has underlined the fact that military personnel have little recourse to justice in higher courts

Ajai Shukla, September 29, 2015

In arguing how difficult are the terms and conditions of military service, leaders of the "one rank, one pay" (OROP) agitation have highlighted curtailment of fundamental rights of military personnel (under Article 33 of the Constitution); their subjection to harsh disciplinary codes (Army, Navy, Air Force Acts); prolonged separation from families; and the vastly higher risk of death or injury whilst on duty.

Now Gurbax Singh Dhindsa, the father of a dead Indian Air Force pilot, has underlined the fact that military personnel have little recourse to justice in higher courts.

Mr Dhindsa makes this point in a letter to Prime Minister Narendra Modi, Defence Minister Manohar Parrikar and Law Minister DV Sadanand Gowda. His son, Flying Officer GS Dhindsa, had died during the Kargil conflict, when his MiG-21BIS fighter crashed while taking off from Srinagar on an operational mission on August 18, 1999. Mr Dhindsa's letter recounts the difficulties he faced in collecting the benefits due to him as the pilot's next of kin. Like many ex-servicemen who confront such delays, he took the government to court for what should have been paid to him routinely, and with gratitude and honour. Last month, the Armed Forces Tribunal (AFT) - the military's departmental tribunal - ordered the Defence Accounts Department to pay Mr Dhindsa his dead son's ex-gratia payment, pension and other dues that had been held back illegally for 16 years. Inexplicably, the AFT failed to order payment of interest.

When Mr Dhindsa decided to move the high court for grant of interest, he learned that he could not. Article 31 of the Armed Forces Tribunal Act rules that AFT judgments cannot be challenged in the high court. Nor can serving defence personnel or veterans or their families petition the Supreme Court unless the case involves a "point of law of general public importance". Earlier this year, on March 11, ruling on a plea filed by the previous United Progressive Alliance (UPA) government, the Supreme Court endorsed this retrograde provision.

The Supreme Court, in a separate case, is now reconsidering this judgment, which has effectively left defence personnel, veterans and families without remedy after an AFT decision. Earlier a seven-judge Constitution Bench, in L Chandra Kumar versus Union of India, had deemed "unconstitutional" a ruling that prevented High Court review of rulings of the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SATs). Yet, for now, military litigants have no recourse beyond the AFT.

Mr Dhindsa writes: "Of course, civilian employees or their families have no such bar. In case I had been the father of a civilian employee denied pension, I could have simply approached the Central Administrative Tribunal (CAT) and if dissatisfied, the high court and if still dissatisfied the Supreme Court. But since I am the father of a military martyr I cannot approach the high court or even the Supreme Court unless I have a case of public importance."

He goes on: "Even if an appeal was provided as a matter of right to the Supreme Court from each case of the AFT, can you expect defence personnel or their families from the lower socio-economic strata to approach the Supreme Court? Can they afford litigation or even travel to the highest court of India?"

This question is especially relevant, given that the defence ministry's well-established legal strategy is to appeal at every level against every court decision that goes against the government, regardless of the merits of the case. That obliges the litigant, most often a poor villager living on his pension, to pay travel and lawyer fees that he cannot possibly afford. Meanwhile, the defence ministry uses taxpayer money to hire high-priced lawyers with the mandate to drag on cases endlessly until the litigant either dies or runs out of money.

Ironically, misinformed sections of the military welcomed the Supreme Court ruling, which they viewed as "quicker justice", stemming from the removal of one level of appeal. Says prominent military lawyer, Navdeep Singh: "Thankfully people are now realising that this judgment snatches away the precious fundamental right to approach the high court, which is available to every citizen. Under the guise of 'quicker justice', soldiers and veterans had been placed without a remedy against a tribunal's judgment. I am glad that the Supreme Court is revisiting the matter."

Even so, unless and until the apex court reconsiders its earlier judgment, Mr Dhindsa is left without recourse. His letter rhetorically asks: "When a civilian employee or his family member aggrieved by order of the Central Administrative Tribunal (CAT) has a fundamental right to approach the high court and then the Supreme Court, why should the same right be denied to me?"

"When a civilian employee or his family member has a right to a three tier judicial approach, why do I only have one tier? Do we lose our rights just because of joining the defence services rather than civilian jobs?"

"Which court should I approach against order of the AFT when my case (like 99.99% cases) does not involve any 'point of law of general public importance'?"

The National Democratic Alliance (NDA) government, and Mr Parrikar himself, have promised to end the practice of automatic appeals that wear down litigants, regardless of the merits of their cases. However, the defence ministry's department of ex-servicemen's welfare (ESW) scuttles all such attempts, and resentment is rising amongst ex-servicemen.

The AFT was born in August 2009, as a departmental judicial body for providing quick and affordable justice to soldiers, airmen and sailors governed respectively by the Indian Army Act, 1950, Indian Air Force Act, 1950 and the Navy Act, 1957. It rests on the foundations of the Armed Forces Tribunal Act, 2007 (hereafter, the Act), which envisions a military-oriented substitute for the high courts, with appeals addressed only to the Supreme Court, on matters of "general public importance". In 2011, the Delhi High Court ruled that litigants could not be deprived of judicial review in a high court, which the Constitution provided for. However, the Supreme Court struck down that order earlier this year.

There are also serious questions of conflict of interest, with the AFT operating under the defence ministry, which is the respondent in almost every case the AFT hears. The defence ministry argues the Act grants it the powers to make rules, appointments and administer the AFT. In fact, the Act grants those powers to the central government, while the Allocation of Business Rules makes the Ministry of Law and Justice (MOLJ) responsible for the "administration of justice".

There is a battle raging over control of the AFT. The Punjab & Haryana High Court has acknowledged this conflict of interest, directing in a judgment on November 20, 2012 that the AFT be "brought within the control of Department of Justice in the Ministry of Law & Justice." This judgment cites the aforementioned seven-judge Supreme Court ruling in L Chandra Kumar versus Union of India and R Gandhi versus Union of India, which direct departmental tribunals (such as the AFT) should all be brought under a "wholly independent agency" under the MoLJ, which must "try to ensure that the independence of the members of all such Tribunals is maintained."

In its Eighteenth Report, tabled in parliament on March 20, 2013, the Standing Committee on Defence has backed the setting up of a Central Tribunal Division under the MoLJ, which would exercise administrative control over the AFT, rather than the MoD. "The Committee are of the view that in order to build a strong and independent institution, this step will go a long way," says the report.

Reform of the AFT is essential for justice to be visibly served. It is to be hoped that Mr Dhindsa's letter draws the government's attention to this long overdue measure.