No one will ever reach even bit of dedication of a SOLDIER ..!!
The concept of Armed Forces Tribunal (AFT) needs redemption, and urgently so, by all stakeholders. In 2009, just about three and a half years ago, the AFT became functional with much fanfare as an “independent” forum to adjudicate matters related to defence personnel. It’s 2013, but despite best efforts of the adjudicating members and those representing litigants, AFT’s justice delivery system leaves much to be desired. Litigants hence cannot be blamed for lamenting at times that they were better-off having their cases heard by High Courts, the independence and majesty of which cannot be matched by the system of tribunalisation. The problems are multifarious. Let us run through some of them.
Most orders in favour of litigants are challenged by the Ministry of Defence (MoD) before the Supreme Court, thereby making it extremely difficult for defence personnel to effectively defend their cases because of the exorbitant cost of litigation involved.
No power to enforce its orders
The AFT is a tribunal which does not possess powers of civil contempt. Though there is mention of civil contempt in the rules and forms framed under the AFT Act, the substantive provision is missing,which shows that it was chopped from the drafting table somewhere along the way. The reason is not far to seek, even when the Bill for introduction of civil contempt powers was recently introduced and referred to the Standing Committee on Defence, the defence services themselves reportedly opposed the grant of powers of contempt to the Tribunal.
In the Act, there is a vague mention of power of execution of orders passed by the AFT but there is no procedure prescribed for such execution. Till date the Tribunal survives on ambiguity. So if a person is not released on bail when ordered by the Tribunal or not reinstated when acquitted or not granted his or her pension when directed, there isn’t much that the litigant can do.
Since there is no power of enforcement, most orders are not implemented unless litigants re-approach the Tribunal seeking implementation. Most orders in favour of litigants are challenged by the Ministry of Defence (MoD) before the Supreme Court, thereby making it extremely difficult for defence personnel to effectively defend their cases because of the exorbitant cost of litigation involved.
Even when a proactive rule is to be introduced or changed, the matter is referred to the defence services and departmental bureaucracy, which of course tends to be more inclined towards looking after its own interests and keeping the Tribunal toothless.
Recently the ministry informed Parliament that only 303 judgements remained unimplemented whereas the actual number is estimated to be between 4,000-5,000. Written instructions have been passed not to implement orders unless the petitioner re-approaches the Tribunal with an execution petition. Implementation is refused on the pretext that the AFT orders are not in consonance with government policy! Now if government policy is sacrosanct, then why would any interpretation be required from a Tribunal? Courts are required to interpret, read-down, harmonize, and if required, strike down policies.
Control of the Ministry of Defence
The AFT currently functions under the MoD which controls its infrastructure, appointments, rule-making and much of everything else. Though the independence of its Members can hardly be doubted, for a litigant it seems more of an extension of the state — a government instrumentality rather than an independent judicial forum. A fright, since the cases were hitherto being heard by the judiciary whose hallmark is independence, given the separation of powers under our democratic system.
The AFT is a part of, and dependent upon the MoD — that very ministry against which it is to pass all orders. Even when a proactive rule is to be introduced or changed, the matter is referred to the defence services and departmental bureaucracy, which of course tends to be more inclined towards looking after its own interests and keeping the Tribunal toothless. For example, the matter whether or not civil contempt powers were to be granted or not was referred to the three services but the question arises as to why would the defence services affirm grant of teeth to the AFT when those teeth are to ultimately bite them on disobedience of orders?
Notwithstanding the SC decision, the remarks of the committee and orders of High Courts, the MoD continues to harp that orders of AFT can only be challenged before the SC.
Despite orders of the Supreme Court in L. Chandrakumar Vs Union of India (1997) and Union of India Vs R. Gandhi (2010) and of the Punjab and Haryana High Court in Navdeep Singh Vs Union of India (2012) to the effect that tribunals should be placed under the Ministry of Law and Justice, most of the tribunals continue functioning under their sponsoring or parent ministries, notwithstanding the laudable efforts of the law ministry to implement SC decisions which are being resisted by most ministries.
The reason behind this resistance is ostensibly the fact that ministries feel that they would “lose hold” over tribunals. An otiose argument since the executive anyway is not supposed to maintain hold over judicial bodies. The MoD has not even provided basics such as security to the institution or official accommodation to members. Rules are also arbitrarily notified. For example, the MoD recently made it compulsory for petitioners to file affidavits with their petitions. Court fee is only accepted through postal orders or bank drafts. Now imagine personnel posted in field and isolated areas looking for notaries to get affidavits attested or looking for post offices and banks to remit court fee! While the world moves away from red-tapism, the same is adopted with impunity by the officialdom. Business in tribunals, as also held by Courts, should be user-friendly, informal and procedure-free and that is the reason why even the Code of Civil Procedure is not applied to most tribunals, but the MoD does not seem to think so.
Fractured provisions
The drafting of the AFT Act has been messy. Besides the absence of any power of enforcement, appeal has been instituted directly to the Supreme Court. This despite the fact that the parliamentary committee discussing provisions of appeal had remarked that though an appeal was being provided to SC for questions of general public importance, similar provisions for the Central Administrative Tribunal had been interpreted by the SC earlier wherein it was held that jurisdiction of High Courts could not be ousted and hence AFT orders would also have to be challenged as per Constitutional provisions.
The vacancy notification for administrative members is also not published in any newspaper. Administrative members of the first batch were selected mostly on basis of military seniority.
Notwithstanding the SC decision, the remarks of the committee and orders of High Courts, the MoD continues to harp that orders of AFT can only be challenged before the SC. Elsewhere in the Act, there are parts which require amendment but rather than legislatively amending those provisions, the MoD has issued executive gazette notifications for amendment. Now can a Parliamentary Act be amended by an executive order?
Adversarial role of Ministry of Defence
The role played by the defence ministry is adversarial towards litigants, where petitioners are viewed as “enemies of the system.” Even settled and covered matters are not conceded, government counsel not briefed fairly and all pleas are opposed as if it is state policy to increase litigation and live off the miseries of poor personnel. Unwanted, forced and imposed multiple litigation up to the SC is the order of the day and shockingly most appeals filed by the MoD are against disabled soldiers.
The vacancy notification for administrative members is also not published in any newspaper. Administrative members of the first batch were selected mostly on basis of military seniority. Care however must be taken to select administrative members on merits with a balanced, sensitive and flexible approach since, besides other issues, they are also to deal with cases of disabled soldiers and military widows. In fact even a short judicial capsule is desirable to enable the selectees unlearn military rigidity and to ensure that they transform themselves into adjudicators without institutional bias rather than representatives of the establishment. Litigants expect the AFT to be free, progressive and proactive, not conservative and inhibited.
Till the time issues concerning the AFT in particular and military justice in general are suitably addressed, preferably by a body under the law ministry totally independent of the influence of the MoD, concepts of justice and equality so cherished in our democracy and which form the gruondnorm of the Preamble of our Constitution, would merely remain high sounding words with little practical usage for military litigants.
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Navdeep Singh excellent article and removed of the blinds over my brains on the judgement of AFT and its actual implementation.I retd in Jun 2005 with 30 % disability attributable to military service and non receipt of disability pension view I retired prematurely.Presently I have written letters to concerned Dte at IHQ for restoring Disability pension citing decision on similar case by Ld judge of AFT Kolkatta recent orders dtd 11.05.2015 for case OA 31/2013.I was quite sure I will get fast track justice quoting the relevant orders of AFT.but post reading ur article I have my doubts.can you give some way ahead advice .
I express my solidarity with my veteran friends as well as my professional colleagues to the extent that, AFT is “Toothless Tribunal” because of absence of Contempt provision. At the same time I disagree with my friends in view of Rule-25 of the AFT(Procedure) Rules, 2008 since the Statute confers unlimited power on the Hon’ble Tribunal to exercise its power so as to give effect ot its order unlike the Sec. 12 of the Contempt of Courts Act, 1971, which only provides simple imprisonment extend upto six months, or with fine upto two thousand rupees or with both. However, it is the Hon’ble Tribunal who squeezes its power for the reason that the Hon’ble Member (Admn) is directly or indirectly part of the organisation.
the aft inthe indian army for eye wash to hidle theirfacts to the soldiers welfare then the FIGHT FOR RIGHT no one bothered the judgement. but the three star after retirement enjoying benifits where as they never bother about the judgement given them are ignored by an lt col is redy denaied thehigher authority and close the case . in my case iwas prticipated in indo sino war and indio pak war medels publisedafter 24 years IS IT CORECT the recods are notmaintaned by the recod office like the DOB of COAS VKSINGH. WHERE AS THE POLICY ADOPTEDFOR who is reted in 1985 the rules postion adopted in year 1998 . the ags branch blindlyissue the letter without read the judgement . where as the three star offier orders not at all think the and issue contravery after 24 year aft is thoothless , andmod to jalara to theminstry . IF REALY INDIAN ARMY DO FAVOURE TO RETAIRED PLEASE GO THRUGH AFT ORDERS 21/2010 KOCHI THANKS FOR THE PEOPLE OF INDIA
aft are for wel fare for rtd persons but it has no value on their judgement. when the judge from high court and retd three star general but only waste the govt moneny such an organation nothing can do it is popet for mod . even a lt col cancel their judge ment by theway of speaking orders it is a jokeon the part of aft courts cores of money spending but there is no value the presendent of india made a wel fare measures to the defence but what major saib said it is trhooth less aft it is 100 PERSENT CORRECT . now who bell the catthe law of mod or the law ministry where always feed wrong in formation feed the higher authroties. the GOD Is real judge the indian rules in the army JAG army not obeyed by the mod if any thing wrong pl sorry on this
Absolutely factual statement that these AFTs which aroused great expectation among the serving and veterans has been gradually nullified and this august body of experienced and wise men are now reduced to a pack of jokers, whose findings have no executive fiat ! The only apex court judge who in his obiter dicta observed that the Babus who decide on the grievances and perquisites should be sent to Siachin for six months to understand the ordeal of the soldier himself, is now dragged over he coal under a different pretext, on his retirement !
1) The facts of IAS failing on each and every count is for every one to see. The problem is, that they are working in the shadows and their names fail to appear just as politicians name and at times the armed forces personnel’ names whilst being in fashion today showcasing army’s bad behavior?? i.e AC Tyagi’s name in a scam but none of a politicians nor a babus
2) The IAS wants to do to the Armed forces what it has done to the Policing force. Make it incompetent, impotent and fill it up with personnel based less on aptitude, IQ but more on reservations and SC/ST OBC segmentations. They achieve in competent personnel being inducted thru wages offered that makes it impossible for a professional to work. The IAS want to make the chiefs as the Commissioner of Police come today…babu serving, slave to the politician person in uniform.
3) By denying OROP they yet have devised a strategy to keep the young away from the armed forces aiding the HAL/DRDO fiascos on many fronts regarding the chasm in their equipment delivered, and quality if delivered and promise of delivering and actual delivering…including the LCA that actually made the air force turn a fighter into a trainer, giving a bad name to the IAF and the a/c as rookies started getting killed.
4) The IAS failure is seen with increasing naxal problems, no infrastructure like toilets, schools, complete encroachment of roads, no electricity etc
5) The veterans and the serving should form an axis. Where in the retired act like spokesperson showcasing the delinked civilian population the truth about the IAS failures and wrong decission vis a vis India’s security. This aids the serving especially the Chiefs not to be pressurized by the babus to take in the wrong decision and also being at a disadvantage since he cannot go to the media
After all the IAS babu and the MOD have more opportunities to sleep with the enemy than any one else