Disempowering the soldier
Deepak Sinha December 02, 2018 : Commentary
With election fever having gripped major parts of the country, television coverage of Prime Minister Narendra Modi hitting the poll trail is common, as also his constant reference to the so-called “surgical strikes” in his speeches. It is obvious that through his words of sympathy and support for the sacrifice and efforts of the military, he is intent on furthering his reputation as a firm and pro-active leader. But despite semantics and bombast, his Government continues with unabated ferocity in its agenda to disempower and dismember the military. Among a host of other issues, take the case of the Armed Forces Tribunals (AFT), another important institution that has been in the line of fire by this Government over the past year.
It was just about a decade ago when the Parliament, in its wisdom, transformed the military justice system by enacting the Armed Forces Tribunal Act, 2007, in order to address the serious lacunae in the existing system where justice was dispensed within the military. As per its website, it provided for the “adjudication or trial of disputes and complaints with respect to commission, appointments, enrolments and conditions of service in respect of persons subject to the Army Act, 1950, The Navy Act, 1957 and the Air Force Act, 1950.”
More importantly, it also provided for “appeals arising out of orders, findings or sentences of courts — martial held under the said Acts and for matters connected therewith or incidental thereto.” In addition, it also adjudicates cases pertaining to military veterans and their heirs in issues relating to service matters. The AFT also has a distinct advantage since appeals against its findings can be made directly to the Supreme Court, thereby speeding up the judicial process for the affected individuals and the Government.
The critical role played by the AFT can best be understood in context of the fact that the Armed Forces being hierarchical organisations steeped in tradition, demand unquestionable loyalty and implicit obedience to orders from its rank and file. In this paternalistic and excessively conservative environment if, for any reason, an individual finds himself on the wrong side of the track, be it with regard to personnel or disciplinary issues, his superior officer becomes the prosecutor, jury and judge — all rolled in one.
While this provides for a quick dispensation of justice, undoubtedly extremely important in certain circumstances, it may not necessarily be unbiased or provide for an impartial or just resolution of the issue. The establishment of the AFT, thus, provided for an extremely important element in the military justice system. It gave all ranks an opportunity to approach an independent authority if they felt that they had not received justice at the hands of their superior officers for whatever reason.
Besides the principal Bench in New Delhi, the AFT has regional benches in 10 other cities across the country. While Delhi, Lucknow and Chandigarh have three Benches each, all other centres have a Bench each, a total of 17 Benches. Each Bench comprises of a judicial member and an administrative member. The judicial members are retired High Court judges and administrative members are retired members of the Armed Forces who have held the rank of Major General/ equivalent or above for a period of three years or more.
It demands no great intelligence to conclude that the judicial member is appointed based on his experience and knowledge of law and functioning of the criminal justice system. The administrative member is selected based on his long and distinguished service in the military and knowledge in associated matters.
However, over the past year while members have retired at regular intervals on completion of the laid down tenures, new appointments have not been forthcoming with a result that presently, of the authorised 35 members for 17 Benches, there are a total of only seven judicial members and eight administrative members presently nominated to the AFT. This implies that the Armed Forces Tribunals is presently functioning at less than 40 per cent of its strength.
Another five members, including three administrative members, will retire by May 2019, which would make the Armed Forces Tribunals virtually non-functional, if new members are not appointed. For all intents and purposes, circumstances leading to the prevailing state of affairs cannot be attributed to the lack of suitably-qualified judges or service officers. But it clearly points towards a deliberate attempt by the appointing authority and the Ministry of Defence to nullify their effectiveness at the cost of servicemen and veterans alike.
It is a matter of public record that there have been numerous occasions on which the various Benches of the AFT have ruled against the stand of the Ministry, thereby causing much embarrassment and humiliation to the Ministry. As per reports in the media as on date, the Ministry of Defence has a total of over 7,000 appeals against judgements of the AFT pending in the Supreme Court.
Obviously, the Defence Secretary finds himself in an unenviable position and can hardly be happy with this state of affairs, especially given the fact that he is a member of the selection committee that appoints members to the Armed Forces Tribunals. This attempt to curtail the effectiveness of the AFT could, therefore, well be because of this, which makes it a clear case of conflict of interest. Incidentally, a petition is under consideration of the Punjab and Haryana High Court since 2012 on this very issue and the need to place the AFT under the Ministry of Law instead.
However, a more disturbing reason could be that the Government’s attempt to introduce new rules through the Finance Bill 2017 were stalled when it was stayed by the Supreme Court in its judgment of February 9, 2018, in the matter of Kudrat Sandhu versus the Union of India.
As per the new rules, the appointment of administrative members was to be no longer restricted to the military, but was also open to others with at least 20 years of public service in such fields as economics and finance. Clearly, expecting non-military members to be conversant with military traditions and customs, procedures and conditions of service was not only impracticable, to say the least, but also made no sense. Obviously, this was nothing but a brazen and unashamed attempt to add to the sinecures available for retiring bureaucrats, which given their bent of mind, would result in the Ministry of Defence getting things their way from their own erstwhile colleagues.
Whether the Armed Forces Tribunals has been brought to its knees by the deliberate actions of unconscionable bureaucrats or utter lack of empathy of politicians is of little concern. The truth is, by curtailing the effectiveness of the Armed Forces Tribunals, the Government is destroying the military justice system which is a disservice to serving and retired personnel. Moreover, it is denying them justice that is their due, given that they have no other legal recourse available.
The writer is a military veteran, a Consultant with the Observer Research Foundation and Visiting Senior Fellow with The Peninsula Foundation, Chennai. This article was published earlier in ‘The Pioneer’ on November 30, 2018.