MoD courts trouble

by Ajai Shukla

Business Standard, 2nd Apr 2013

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.