Indian Defence Review

The Armed Forces Tribunal Act, 2007 was brought into force on 15 January 2008 and the Armed Forces Tribunals were established under its authority from 10 August 2009. The Armed Forces Tribunal Act provides for adjudication or trial by the Tribunal of disputes and complaints pertaining to commissions, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, the Navy Act and the Air Force Act. It also provides for adjudication of appeals arising out of the findings, orders and sentences of courts-martial and matters connected therewith or incidental thereto and for further appeal to the Supreme Court against decisions of the Armed Forces Tribunals.

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The Armed Forces Tribunals are now fully functional, with the Principal Bench located at Delhi and other Benches at Chandigarh, Chennai, Guwahati, Jaipur, Kochi, Kolkata, Lucknow and Mumbai. It is therefore, apposite to review their impact.

The Military Justice System

Military justice is the body of laws and procedures governing members of the armed forces. The military is a unique society, with distinct needs in the areas of discipline and order. The military justice system is essential to the maintenance of that discipline. Without it, a military commander could not effectively exercise his authority or accomplish the mission. Many things that are simple matters of courtesy in the civilian world are considered issues of criminal law in the military. A civilian worker with a private employer who fails to report for duty or who is disrespectful toward his employer would not face the possibility of criminal prosecution and going to jail. In the military, it is different.

Article 33 of the Constitution confers power on Parliament to restrict the benefit of or abrogate Fundamental Rights to members of the Armed Forces”¦

While the military system of law is similar to the civilian system in many ways, there are numerous procedural and substantive differences. The military justice system is applied through the Army Act, 1950, Air Force Act, 1952 and Navy Act, 1957. The military being unique as an institution, these Acts curtail certain rights which are enshrined in the Constitution for all citizens. They also enable quick in-house dispensation of justice and that is where the public at large perceives these to be harsh.

The military justice system in India evolved during the British rule. The origin of court-martials, historically, is traceable to the widespread agitations which occurred in 1857. It was ubiquitously believed by the Raj administrators that the 1857 events were attributable in large measure to the fact that Commanding Officers did not possess the power to summarily punish the transgressors, and thereby squelch rebellion, revolt or mutiny quickly and ruthlessly, if required. Summary Court Martial’s were introduced in 1869, with the purpose of prompt and swift award of punishment to indisciplined soldiers. Post-independence, Parliament substantially repeated the provisions of the Indian Army Act, 1911 while enacting the Army Act, 1950. It includes the power of dismissal from service and imprisonment, with no review. This was a serious shortcoming due to its subjectivity and limitations of the appeal procedure in the statutory provisions of the Army, Navy and Air Force Acts. The provisions of these Acts, though oppressive in parts, were never meant to be draconian and do have a number of in-built checks and balances.

“¦under the garb of discipline, many have been deprived of their rights and the asperity has resulted in some measure of disenchantment with military life.

Article 33 of the Constitution confers power on Parliament to restrict the benefit of or abrogate Fundamental Rights to members of the Armed Forces, among others, in order to ensure the proper discharge of their duties and the maintenance of discipline among them. Personal liberty makes for the worth of human beings and is a cherished and prized right. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by a criminal court and a court martial is apt to generate dissatisfaction arising out of this differential treatment. Even though the procedure of trial by court martial is almost analogous to the procedure of trial in the ordinary criminal courts, it is pertinent to recall what Justice William O’ Douglas observed:

‘That a civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. The very expression ‘court martial’ generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour.’

In a celebrated case of Reid v. Covert, Justice Black observed:

‘Courts martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of ‘command influence’. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings; in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges’.

Article 323 of the Constitution was amended and substituted by Article 323A under the 42 Amendment Act, 1976, which came into effect from 3 January 1977. By this amendment, Parliament conceived of establishment of Tribunals so as to reduce the pressure on the regular Courts and provide speedy remedy to citizens by constituting Central Administrative Tribunals and State Administrative Tribunals under the Administrative Tribunals Act, 1985, for quick redressal of the grievance of the civil services which do not include the Armed Forces. It also provided for the National Commission and State Commissions under the Consumer Protection Act, 1986; Telecom Disputes Settlement and Appellate Tribunal under the Telecom Regulatory Authority of India Act, 1997; Railway Claims Tribunals; and many more Tribunals. No such forum was constituted for the Armed Forces for redressal of their grievances, though it was originally conceived in the Constitution.

The fact that 4,000 cases were heard by the various Armed Forces Tribunals in the last one year and 90 percent (3,600) were decided in favour of the defence personnel reveals the extent of injustice.

The provisions of the Army, Navy and Air Force Acts do not provide for appeal against verdicts of courts-martial which were the first and last courts of adjudication in criminal matters. The only judicial remedy against courts-martial verdicts for service personnel was to invoke the extraordinary writ jurisdiction of the Constitutional Courts of the country. But writ courts, as against ordinary appellate courts, have only a limited power of judicial review as they cannot appreciate evidence and go into the factual matrix of the case or decide on the quantum of punishment awarded by a court-martial.

The concept of an Armed Forces Tribunal was very much in existence right from the day the Constitution of India came into force. But it appears that it escaped the notice of the Legislature till they were made aware of it. At the time of enactment of the Army Act and the Air Force Act, in 1950, though Parliament did debate the need for an Appellate Court, it provided for an in-house non-judicial review of court-martial proceedings by way of pre-confirmation and post-confirmation petitions. In 1954, the Judge Advocate General mooted a proposal for setting up a Review Board to hear appeals against court-martial verdicts, which was turned down. In 1957, when the Navy Act was passed by Parliament, a provision was incorporated for a mandatory judicial review by the Judge Advocate General (Navy), with opportunity of personal hearing to the accused or his counsel. In 1960, a private member bill in the Lok Sabha, seeking amendment in the Army Act to provide for an opportunity for appeal against courts-martial decisions did not succeed.

There was thus no forum provided for redressal of grievances of the Armed Forces except to approach the Supreme Court by filing a petition under Article 32 or 226 of the Constitution. For the first time it was realised by the Apex Court, in the case Lt Col Prithipal Singh Bedi v. Union of India & Others that an appropriate alternative forum should be provided by legislation to ventilate the grievances of the Armed Forces. In 1992, the Parliamentary Estimate Committee, in its 19th Report, suggested setting up an Independent Appellate Board or Tribunal for service personnel. A similar report was made in its 169th report but to no avail. After two decades, the Supreme Court had to draw attention of the Government and Parliament towards this glaring lacuna in the military justice system, in the case of Union of India v. CS Gill, in 2000. It still took nearly another decade to pass the Armed Forces Tribunal Act, in 2007 and actually set up the Tribunals.

Armed Forces Tribunals are also prevalent in other countries. In Britain, it was framed as back as in 1951 in the Court-martial (Appeals) Act of 1951 (amended in Court-martial (Appeals) Act, 1968). In USA there is the Uniform Court of Military Justice Act, 1950 (subsequently amended by the Military Justice Act, 1968). Likewise there is an Act in Australia as well.

Article 227 of the Constitution gave powers to High Courts to have superintendence over Tribunals. However, the Armed Forces Tribunal Act, 2007 has specifically taken this purview of superintendence or supervision away from the High Courts. A similar provision was made under Article 136 of the Constitution which reads:

The long time lag between the cause and final disposal by the courts meant that the individuals responsible had faded away and could not be held accountable.

1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Thus, the genesis of the establishment of the Armed Forces Tribunal lies in the perceived requirement of creating a forum for an independent and comprehensive judicial review of Court Martial proceedings; they also comprehensively cover all aspects of discipline and service conditions. The overwhelming majority of the cases that have caused members of the Armed Forces to approach Courts relate to the three P’s that affect a serviceman – Promotion, Pay and Pension. Two other Ps – Postings and Punishments (Minor) are as yet out the purview of Armed Forces Tribunals.

The military justice system must fulfill two functions: Discipline and, equally if not more importantly, ensuring Equitable and Fair Dispensation of Entitlements related to the service. An organisation which, of necessity, has to function on a single point hierarchical system of authority of command must be fair, albeit firm, at all times. A glaring inadequacy in managing service related matters is the antiquity of the relevant Regulations, e.g. Pension Regulations 1961; Entitlement Rules 1982; Defence Services Regulations 1984; Leave Regulations and so on. All have been comprehensively overhauled by successive pay commissions, judicial pronouncements, government orders, circulars, clarifications etc. On a number of occasions the Courts, and even the Supreme Court, has been led to conclusions based on obsolete or superseded regulations.

Court-martials were earlier subjected to intervention by the High Courts under Article 226 of the Constitution. The emphasis was on infraction of rules and procedures like Army Rule 180, 22 etc. The establishing of Armed Forces Tribunals allows a comprehensive review in appeal of all aspects of court-martials. Consequently, the emphasis has shifted from the letter to the spirit of the provisions of Service Acts and Rules and the substance of the case. A major impact of the Tribunal, by virtue of its quick disposal, is the accountability of individuals for improper interpretation, wrongful implementation or malafide non-compliance of orders thus denying individuals their entitlements. The long time lag between the cause and final disposal by the courts meant that the individuals responsible had faded away and could not be held accountable. This is bound to change as the delinquent individuals would now be very much around to be held to account.

Appraisal

Have the Armed Forces Tribunals met their aims and objectives? They certainly provide an independent, comprehensive, quick and affordable forum for dispensation of military justice. Courts have very cautious in interfering in Armed Forces matters because of the necessity of maintaining discipline. Thus, under the garb of discipline, many have been deprived of their rights and the asperity has resulted in some measure of disenchantment with military life. It is one of the cardinal features of our Constitution that every person is entitled to fair play. In this connection, a passage from the Supreme Court judgment in the case of Lt Col Prithipal Singh Bedi, in 1982, is relevant:

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Reluctance of the apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering the armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution.

Till the 6th Pay Commission, the government had been paying honorary Naib Subedars the pension of a Havildar with an addition of just Rs. 100. Subsequently, the Supreme Court upheld the judgment of the Chandigarh Bench of Armed Forces Tribunal”¦

In the larger interest of national security and military discipline, Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces, but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty-oriented Constitution.

Court Martial’s or other disciplinary issues actually constitute less than 10 percent of the total cases that have come up before the various Benches of the Armed Forces Tribunals. Of the remaining 90 percent the majority constitutes pension and of this the majority constitutes disability pension. As regards the functioning of the Benches, an example of the Chandigarh Bench should suffice. (See Box 1). The details of the disposal of original and transfer applications by the Chandigarh bench of the Armed Forces Tribunal are given in Box 2.

The fact that 4,000 cases were heard by the various Armed Forces Tribunals in the last one year and 90 percent (3,600) were decided in favour of the defence personnel reveals the extent of injustice. Increase in litigation in the forces, is in no manner a cause for worry. That a greater number of serving and retired personnel are resorting to legal recourse resulting in judicial intervention is a sign of a healthy democracy where the right to Constitutional remedies is guaranteed to every citizen. A surge in the number of cases was expected because of several reasons. First, the availability of an exclusive body to deal with grievances of present and former service-members was encouragement enough for those to take legal recourse who felt that they had been treated unfairly. Second, there was an inherent reluctance of taking seemingly trivial matters such as minor disputes in pay, allowances and grants, to High Courts. The Tribunals have the expertise and power to go into the minutiae of such aspects. Third, there was an innate phobia with respect to the complexity and formality of procedures followed in High Courts. In comparison, the procedures followed in Tribunals are much more ‘user-friendly’.

The coming into force of the Armed Forces Tribunal Act does not mean that the internal grievances redressal mechanism is weakened within the military. Neither does it imply that, if a person does not get justice within the organization, he shall get it from the Tribunal. In fact the in-house system is strong enough to ensure that only a minority of grievances reach litigation stage. Disability pension is one such area where proper application of procedures and regulations by Medical Boards, Record Offices and the Controller of Defence Accounts would help in minimising disputes on the subject since the Tribunals in this matter are in fact doing what should have been the duty of these authorities. Also pension litigation in the defence services is the highest in the country compared to all other central government organisations and most of it is avoidable.

In matters of pension, the defence ministry is now notoriously (in)famous for even misleading Courts by quoting outdated and non-existent rules and regulations, a tendency that has been deprecated on record by various Courts on several occasions. However, the injustice has not stopped here as the Government implements only specific judgements/decisions and does not extend the same benefit to other similarly placed personnel. Tersely put, it is not the quantity of cases reaching judicial fora that are worrisome, but the quality. There actually appears to be an element of schadenfreude against uniformed personnel in the outlook of most officials in the Defence bureaucracy. It’s as the Russian czar said once, when asked about his great power, “I do not run Russia, 10,000 clerks do.” Examples are:

In Mahavir Singh Narwal v. Union of India (2004(102) FLR 330), the Delhi High Court held that disability pension cannot be denied solely on the ground that personnel were discharged at their own request, in case other conditions are satisfied. The Union of India challenged that decision by filing SLP No. 27141 of 2004, but the same was dismissed.

Till the 6th Pay Commission, the government had been paying honorary Naib Subedars the pension of a Havildar with an addition of just Rs. 100. Subsequently, the Supreme Court upheld the judgment of the Chandigarh Bench of Armed Forces Tribunal which had ended the discrimination between the pension of honorary Naib Subedars who retired before and after 2006. In 2009, the government issued instructions, but with effect from 1 January 2006. Though the notification had merely stated that the new orders would be in effect from 2006, it was interpreted by various officers of the defence ministry as being applicable only to those honorary Naib Subedars who had retired after 1 January 2006.

The Government had set up an anomaly committee of the National Council (JCM) to settle the anomalies arising out of the implementation of the fifth pay commission’s recommendations. Since the letter resolving some matters was issued on 10 October 1997, the payments were made to affected personnel from that date and not from 1 January 1996, when the fifth pay commission came into effect.

It is a travesty that the Government does not even listen to its own Parliament and accepts less than half of the recommendations of the various parliamentary committees. In the case of Defence the statistics are even more dismal.

The universally accepted dictum is that justice must not only be done but it must be seen to be done. The same holds good with all the greater vigour in case of court martial where the judge and the accused don the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremovable. There appears to be a glaring anomaly that Courts Martial do not even write a brief reasoned order in support of their conclusion. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair play is denied to it.

Though most of the judgements of the Armed Forces Tribunals have been implemented, the worrisome aspect is of late effectuation and not within the stipulated three months. Perhaps one reason for this is due to the fact that the power of contempt has not been comprehensively provided in the Armed Forces Tribunal Act. Whilst the power of criminal contempt has been provided, the power of civil contempt is not there. Implementation of judgements would be facilitated if the power of civil contempt is provided in the Act, as is the case with all other tribunal acts. A combined reading of Sections 19 and 25 of the Armed Forces Tribunal Act and Rule 25 of the statutory Armed Forces Tribunals Procedure Rules, shows that the Tribunal has the inherent jurisdiction to take coercive action for non-implementation of its orders by treating it as criminal contempt. Non-implementation of the final orders of the Tribunal amounts to obstruction and interference with the course of justice, and is hence criminal contempt for which the Tribunal is entitled to initiate prosecution proceedings under Section 19(1) of the Armed Forces Tribunals Act. Usually, it is the jurisdiction under civil contempt that is invoked by Courts in cases of disobedience of orders and directions.

The absence of substantive provisions of civil contempt in the Armed Forces Tribunals Act appears to be deliberate rather than a mere omission since the Administrative Tribunals Act on the civil side (by which the Central Administrative Tribunals are governed) has granted full powers of civil contempt. There is a mention of civil contempt in various rules and forms appended with the statutory Armed Forces Tribunals Rules albeit without any supporting section in the primary Act, a fact which points to a lapse at the drafting stage wherein the provision was omitted. Perhaps the Ministry of Defence knew that non-compliance of the orders would remain a rule rather than an exception. It is relevant that more than 90 percent of orders passed by Hon’ble High Courts and Tribunals, especially in pension matters, are not implemented till a contempt petition is filed.

An interesting facet of judicial review of court-martials would be situations where the findings and verdict of the court martial runs counter to the gravity of offence and evidence available and the court martial maintains its findings even after revision orders. It would be appropriate that the appeal by the convening authority against such court martial verdicts comes to the Tribunal. That would enhance the credibility of the court-martials as also make them truly independent. The situation would then be reversed from what is generally that of the accused coming in appeal and the Tribunal would have fully served its purpose.

There are 22, 60,705 ex-servicemen in India (Press Information Bureau, Government of India, 27 July 2010). Their grievances need to be a cause for concern by the Government. It is a travesty that the Government does not even listen to its own Parliament and accepts less than half of the recommendations of the various parliamentary committees. In the case of Defence the statistics are even more dismal. When the standing committee on defence made 151 recommendations for the welfare of ex-servicemen, only 18 were accepted by the Government (India Today, 21 February 2011, p. 48).

Money is a poor substitute for the loss of military personnel who “die with their boots on”. What is worse is the fact that it takes several decades, and having to struggle all the way to the Supreme Court, to get grave wrongs rectified, which do not amount to either compensation or closure. Soldiers and their families anxiously await the apex court’s taking a final call on its proposal to have a special, independent commission set up to deal with veteran’s grievances. It was easy for one of the government’s top law officers to contend that there was no requirement for such a body as systems were in place and a mechanism was being evolved to address grievances “at their doorstep” (The Statesman 11 February 2011). Till then, the Armed Forces Tribunals are the best forum for uniformed personnel to seek speedy justice.