RTI reveals MoD largesse to Armed Forces Tribunal

[Daredevil]

Discontent over legal recourse simmers within the military, with officers and enlisted personnel saying that the Armed Forces Tribunal (AFT) --- a judicial tribunal that soldiers must petition for justice before approaching the civil courts --- usually obliges the Ministry of Defence (MoD) in its judgments. The ministry's control over AFT appointments, funds, infrastructure and manpower, produces judgments that suit the MoD, allege these critics.

The Punjab & Haryana High Court and the Parliament's Standing Committee for Defence have already accepted the conflict of interest in the MoD's control over the AFT, given that most cases that the AFT hears has the MoD as a respondent. But the MoD is resisting the move to place the AFT under the Ministry for Law and Justice.

A series of MoD responses to queries submitted under the Right to Information (RTI) illustrate the ministry's hold over the AFT. The answers expose the MoD's control over foreign trips by AFT members; and the ministry's grant of canteen shopping facilities to retired judges who are "Judicial Members" on AFT benches, based on the logic that they are "MoD employees". The responses reveal that "Administrative Members" on AFT benches, who are retired generals, are called in by army formations to "sensitize" them to the cases that they are hearing. The MoD's answers also reveal that members are appointed to benches apparently without background checks on their records.

The MoD admits paying over Rs 67 lakhs for five "official foreign visits" by the AFT chairperson and members. In letter F. No. 10(10)/2012/AFG(PB)/RTI dated 24th July 2012, in response to an RTI query by Colonel (Retired) Satwant Singh, the MoD says, "As per the records available"¦ a sum of Rs 67,85,109/- was incurred on foreign tours of Hon'ble Chairperson and Members."

In the same letter the MoD admits that canteen cards, which entitle defence employees to shop at discounted rates from Canteen Stores Department (CSD) outlets, are also provided to the retired judges who are hired as "Judicial Members" of the AFT. The MoD explains "CSD Canteen Cards (Grocery) have been issued to Judicial Members of AFT, in view of the fact that their salaries are paid from Ministry of Defence (Civil) Estimates."

"This is clear conflict of interest. How can judges rule against the MoD in any case brought before the AFT, when the MoD is regarded as the employer? And if the judge is not an MoD employee, how is the MoD providing subsidized canteen cards?" asks a high-ranking serving officer whose case is before the AFT, but who says he is doubtful about obtaining real justice.

The MoD's relationship with the AFT is also evident from the ministry's response to another RTI question by Col Satwant Singh, asking whether the Lucknow-based Central Command had proposed meeting the senior military officers in the AFT bench (Administrative Members, as they are called) in order to "sensitize (them) about the important cases being handled by them and about other issues relating to functioning of the AFT."

In letter No. 149002/RTI/C/Edn dated Oct 19, 2012, Central Command did not deny that such a letter had been written, but refused to divulge any details saying, "Info(rmation) is exempted under Section 8(I)(e) of Right to Information Act, 2005. Hence cannot be provided."

Section 8(I)(e) denies information "unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information."

AFT judgments are increasingly drawing criticism. The Punjab and Haryana High Court has recently overturned several AFT decisions that denied relief to defence veterans, especially disabled soldiers. The AFT has drawn bitter criticism from ex-servicemen's bodies for allegedly toeing the MoD's line, even when veterans were being unjustifiably denied their due. The MoD's ironically named Department of Ex-Servicemen's Welfare is criticized for its reflexive opposition to veterans' appeals for disability benefits.

In one recent case, the court pulled up the AFT for passing off as "constitutional" disabilities that the rules list as "affected by stress and strain of service". In another case, in which the AFT had supported the MoD in dismissing a pension claim, the high court termed the AFT's judgment as 'myopic,' reminding it that pension is not a bounty but is the property of an individual.

Broadsword: MoD courts trouble

 

[Daredevil]

MoD courts trouble

Last week the army initiated disciplinary action against 168 soldiers for a mutiny in 2012 in an artillery regiment in Ladakh. Such complex prosecutions and the growing trend of officers and enlisted personnel to approach the courts over grievances relating to promotion, pensions and medical disabilities pushed the government into creating a military judicial mechanism --- the Armed Forces Tribunal, or AFT. This was intended to reduce the burden on the overloaded civil courts and to create a credible judicial alternative that would enjoy the confidence of soldiers, sailors and airmen. Sadly the structure, ethos and functioning of the AFT has prevented this from happening. There is a glaring conflict of interest between the AFT's subordination to the Ministry of Defence (MoD), which happens to be a party in most AFT cases. The answer, clearly, is to disassociate the AFT from the MoD and place it under the Ministry of Law and Justice (MoLJ) along with other departmental judicial bodies. The MoLJ, the higher judiciary and Parliament's Standing Committee on Defence all favour this solution. The MoD, however, is resisting doggedly.

The genesis of the AFT lies in the Supreme Court case, Lt Col Priti Pal Singh Bedi versus Union of India 1982 AIR 1413. In this, the judges first mooted the need for an independent judicial body for soldiers, sailors and airmen (who are governed respectively by the Indian Army Act, 1950, Indian Air Force Act, 1950 and the Navy Act, 1957). After a quarter century of deliberation by numerous committees and commissions, the Armed Forces Tribunal Act, 2007 ("the Act") brought the AFT into being, aimed at providing quick and affordable justice to military personnel.

The AFT, which came into effect from Jun 15, 2008, was mandated to hear grievances relating to military commission, enrolment, appointments, and conditions of service; and appeals against orders, findings and sentences of courts martial. Its Principal Bench in Delhi began functioning on Aug 10, 2009; followed by eight Regional Benches in Jaipur, Chandigarh, Lucknow, Guwahati, Kolkata, Chennai, Kochi and Mumbai. These nine benches have 15 courts; each with a Judicial Member (a retired high court judge) and an Administrative Member (a retired general officer). This provides each bench with the judicial heft and professional insight to rule wisely and expeditiously on military issues.

Initially, the Act envisioned the AFT as a military-oriented substitute for the high courts. Appeals against an AFT verdict could be addressed to the Supreme Court, but only on matters of "General Public Importance". For most military personnel this meant that there was no appeal beyond the AFT, given the Supreme Court's carefulness in admitting appeals, and also the cost of litigation in the apex court. But, in 2011, the Delhi High Court ruled that the Act could not deprive litigants of the judicial review powers of a High Court, which the Constitution provided for. Now division benches of high courts consider appeals against AFT decisions.

So far, so good. But litigants and lawyers are suspicious creatures and their analysis of AFT verdicts over the past four years has raised serious concerns that the MoD's influence over the AFT might be skewing decisions dramatically in the MoD's favour. After all, the AFT functions directly under the administrative control of the MoD. The ministry has a major say in appointing members to each bench; and it controls funds, infrastructure and manpower. As highlighted elsewhere in this newspaper today, the MoD also bestows largesse --- from Rs 67 lakhs for five foreign visits by AFT members, to subsidized canteen shopping facilities for the judicial members, arguing that they are MoD employees. Given that so many AFT cases involve the MoD as a respondent, petitioners can be forgiven for wondering how the bench can be expected to pass orders against the ministry that controls them in so many ways.

The Punjab & Haryana High Court has already accepted this conflict of interest, directing in a judgment on Nov 20, 2012 that the AFT be "brought within the control of Department of Justice in the Ministry of Law & Justice." Cited in this judgment is an earlier seven-judge Supreme Court ruling in L Chandra Kumar versus Union of India which directs that the different 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 Mar 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."

The MoD quite illogically argues that 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, and the Allocation of Business Rules makes the MOLJ responsible for the "administration of justice".

Obstinately the MoD remains determined to control the AFT. An official from the MoLJ testified before the Parliamentary Standing Committee on Defence, "I have seen the files that the Ministry of Defence is opposing the move to leave the control of AFT. They do not want to leave the control. So far as filling of appeal is concerned, I think against almost each and every matter the appeals are filed."

It would be humiliating if the MoD were to be divested of control of the AFT, something that seems inevitable since the MoLJ has already mooted a Central Tribunal Division that would control departmental tribunals such as the AFT. Instead the MoD should accept the idea of a completely independent AFT and modify its internal processes --- including those of the military --- to cut down litigation in an organisation where it is now a growing problem.

Broadsword: MoD courts trouble

 

[W.G.Ewald]

What is the role of IA JAG in this?

Rathore named as Army's JAG

New Delhi, Feb 20, (PTI): The Defence Ministry has cleared the appointment of Major General Prabhu Singh Rathore, a veteran military law expert, as the Judge Advocate General (JAG) of the Indian Army.

The JAG is the top law officer of the service and the chief legal adviser of the Army chief in matters pertaining to the force's laws.

The appointment of the JAG was cleared on Friday and the officer will take over in the next few days, Defence Ministry sources told PTI in Delhi. The top legal post in the Army has been lying vacant after the retirement of previous incumbent Maj Gen B V Nair, who superannuated on January 31.

The appointment was delayed as a Lieutenant Colonel had approached the Armed Forces Tribunal (AFT) alleging that Rathore had attempted to adversely impact his career. After admitting the case, the Calcutta Bench of the Armed Forces Tribunal had stayed Rathore's promotion but vacated it last month. The case is still on in Calcutta.

Rathore was earlier serving as the Deputy Judge Advocate General (D-JAG) in the Jaipur-based SouthWestern Army Command before proceeding to Army Headquarters here after promotion recently. With his appointment as JAG, Rathore will have to look after several important ongoing cases in the Army courts including the final outcome in the Sukna land scam where Lt Gen Avadesh Prakash has been recommended for dismissal.