Supreme Court takes up petition, will examine new govt rules to control Armed Forces Tribunal

By Ajai Shukla

Business Standard, 26th Aug 17

In an important move towards reforming departmental justice across the board, but especially for the military, the Supreme Court issued the Central Government a show-cause notice on Friday, asking why its recently promulgated rules for the Armed Forces Tribunal (AFT) should not be struck down.

The apex court was responding to a writ petition, filed by Punjab & Haryana High Court lawyer and founding president of the AFT Bar Association, Navdeep Singh, through Supreme Court lawyer Aishwarya Bhati, seeking reforms of the AFT and a check on “excessive tribunalisation”.

The AFT was set up in 2009 under the Armed Forces Tribunal Act, 2007. Soldiers, sailors and airmen are required to petition the AFT for justice, rather than civil courts. The AFT was intended to reduce military related cases in civil courts. Instead, as the Singh-Bhati petition points out, the backlog in defence-related cases has increased from 9,000 to 16,000 after creation of the AFT.

Legal experts have assailed the government’s creation of more and more departmental tribunals and the concentration of powers in their hands, as a ploy to bypass the independent judicial system. “A departmental tribunal takes a large number of cases out of the courts and places them under a quasi-judicial departmental body. Next, the government takes control of the appointment and functioning of the judicial officers who sit on the tribunal, keeping them under the government’s thumb”, explains a prominent legal expert.

The petition says this is evident from the new AFT rules, which were promulgated by the Finance Ministry on Jun 1, based on an enabling provision in the Finance Act, which Parliament passed as a money bill in April. The new rules decrease the tenure of AFT judges from four years to three; do away with the need for consultation with the Chief Justice of India before appointing AFT judges; and tweak the rules for the selection procedure, effectively permitting two secretary-rank officers on the Selection Committee to choose the judges they want.

There were already grave questions over the AFT’s independence, since it functions administratively under the Ministry of Defence (MoD), which is the first respondent in most cases filed by soldiers, sailors and airmen before the AFT.

Further, as Business Standard reported (April 2, 2013, “RTI reveals MoD largesse to Armed Forces Tribunal”) Right to Information requests have highlighted the MoD’s patronage of AFT judges. The MoD admitted spending over Rs 67 lakhs for “official foreign visits” by AFT chairperson and members, and providing judges with unauthorized canteen cards to shop at subsidized military retail outlets. Apparently hoping to influence judgments, the ministry admitted to inviting AFT judges to army units to “sensitise” them about cases before them.

In November 2012, the Punjab & Haryana High Court ordered that the AFT be placed under the Ministry of Law & Justice. The MoD has appealed this verdict in the Supreme Court, but bypassed the process by promulgating new rules this year.

The petition heard today notes that the government had itself termed departmental tribunals a “stopgap arrangement”, and sought a roadmap for reforming tribunals and returning certain jurisdictions back to the regular courts. The petition also questions why the regular judiciary is not being strengthened instead of resorting to excessive tribunalisation.