Indian Defence Review

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.