Supreme Court rules out high court appeal for soldiers

By Ajai Shukla

Business Standard, 13th Mar 15

On Wednesday, the Supreme Court rendered a decision that practically makes the Armed Forces Tribunal (AFT) the first and the last forum for serving and retired soldiers, sailors and airmen and their families, sharply eroding their legal rights compared with other Indian citizens. 

The apex court has ruled that AFT verdicts cannot be challenged before High Courts, as was being done till now. The only recourse available after the AFT will now be the Supreme Court.

However, in 2012, the Supreme Court has ruled that military litigants have no vested right of appeal against an AFT judgment. As per the Armed Forces Tribunal Act, 2007, the apex court can only be approached if a “point of law of general public importance” is involved or if the issue is important enough to warrant the attention of the apex Court.

“Most issues before the AFT are not of public importance. They relate to veterans’ pensions, medical disabilities, etc. Since these cannot now be taken before the Supreme Court as a matter of right, the AFT has become the only court for military litigants, effectively denying poor soldiers the right of judicial review,” says Navdeep Singh, a Chandigarh-based lawyer, widely respected for his legal services to military veterans.

In contrast, a 7-judge Supreme Court bench had deemed "unconstitutional" a similar ruling that prevented High Court review of rulings of the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SATs).

The AFT was established in 2009 under the Armed Forces Tribunal Act, 2007, as a judicial tribunal that soldiers petition for justice before approaching civil courts.

Legal experts have questioned the AFT’s independence, since it functions directly under the Ministry of Defence (MoD). The MoD appoints the judges to the AFT. The Defence Secretary (who is on the panel that selects AFT judges) is also the First Respondent in most cases filed by soldiers, sailors and airmen.

In November 2012, the Punjab & Haryana High Court ordered that the AFT be placed under the Ministry of Law & Justice. An MoD appeal against this verdict is pending in the Supreme Court.

Right to Information applications have revealed MoD patronage of AFT judges. As Business Standard has reported (April 2, 2013, “RTI reveals MoD largesse to Armed Forces Tribunal”) the MoD admitted spending over Rs 67 lakhs for “official foreign visits” by the then AFT chairperson and members, and having provided them with unauthorized canteen cards to shop at subsidized military retail outlets. AFT Administrative Members (military generals on the tribunals) are called to army formations to “sensitise” them about cases that the were hearing.

Recently a Supreme Court Constitution Bench struck down the national tax tribunal on the grounds that it was not independent of the government. Arvind Datar, who was counsel in that case, asserts that Article 226 of the Constitution, which provides judicial review before the High Court, cannot be struck down.

“Look at the poor soldier and how he would be affected by such a judgment. A jawan living in Tamil Nadu, or Assam, would have to engage a Supreme Court lawyer in Delhi, and bear all the expenses of travel in order to appeal against an AFT ruling. This is completely unfair”, says Datar.

Meanwhile, the MoD's battery of lawyers in New Delhi continue filing automatic appeals in the Supreme Court against unfavourable AFT orders. So serious is the problem that Defence Minister Manohar Parrikar recently pledged to end this practice.

Legal experts point out that, if High Courts can no longer hear challenges and provide redress, the Supreme Court would directly receive a flood of appeals, diverting it from its primary task --- to adjudicate on matters of importance and Constitutional issues.

“Ultimately, defence personnel have become even lesser citizens than what they already were. Justice will now be neither affordable, nor accessible. We will request the honourable Supreme Court in other similar pending matters to refer this issue to a larger bench”, says Navdeep Singh.