Tinkering with Tribunals will make them useless The Statesman 22 May 18
The Armed Forces Tribunal (AFT) was established as a military tribunal under the Armed Forces Tribunal act in 2007. This was based on the Law Commission’s 169th report of 1999, which stated that disciplinary and service matters of military personnel required quick resolution and proposed a special tribunal for the same for para military and armed forces. The act was steered through parliament only by the defence ministry, leaving para military, Assam Rifles and Coast Guard out.
The principal bench of the AFT is based in Delhi and it has regional benches at Chandigarh, Lucknow, Kolkata, Guwahati, Chennai, Kochi, Mumbai and Jaipur. Except for Chandigarh and Lucknow, which have three benches each, all others have a single bench. Each bench comprises of a judicial member, who is a retired high court judge, and an administrative member, who is a retired member of the armed forces.
In a democracy, the judiciary by nature is lenient. However, the armed forces because of their role and task must follow a disciplined structure, without which they would fail. Hence, the armed forces are governed by their respective acts and rules which are the army act of 1950, air force act of 1950 and the navy act of 1957 and the Defence Services Regulations. Disciplinary punishments, granted under respective acts, are periodically challenged in AFTs. Unless the circumstances and specific regulations are clarified to the judge, leniency in judgement would impact military discipline.
Further, vagaries and conditions of service are vastly different from any other central government organization, hence AFTs have been liberal in approving disability pensions, which an unrelenting bureaucracy challenges in the supreme court to no avail. To advice the judicial member on service specific issues and apprise him of the conditions of service, an administrative member, who has had decades of service experience is appointed.
Till Jun 2017, the AFT functioned at near full strength and was effective. Post the government issuing unilateral notifications incorporating changes in its composition and functioning, presently challenged in the Supreme Court, there has been no induction of fresh members, resulting in almost non-functional courts. Thus, the very reason for creating the AFT, speedy disposal of cases pertaining to the members of the armed forces, has been lost.
On 01 Jun 2017, the government amended the AFT act, amongst 19 other existing laws, enhancing its powers pertaining to the appointment and removal of members of various tribunals. Amongst the major changes which affect the functioning of the AFT is the appointment of the administrative member.
Earlier rules had stated that the administrative member could be retired major generals and above, however the new rules state any person, ‘of ability, integrity and standing having special knowledge of, and professional experience of not less than 20 years’ in multiple fields not connected with the armed forces but ‘in the opinion of the government is useful to the AFT’ could be appointed. Thus, knowledge of service conditions and military law is not essential, making such an appointment redundant. It opens doors for appointing IAS and other central government service members, who lack even basic military knowledge.
The chairperson of the AFT was appointed by the president, hence was difficult for the government to remove. The changed rules state that he would be appointed by the government in consultation with the chief justice, thereby denuding his appointment. Earlier rules stated only a retired high court or supreme court judge could be the chairperson, whereas the amended rules state ‘any person who is qualified to be a judge of the supreme court’ could be appointed. Thus, an advocate with ten years’ experience can be nominated as a chairperson.
The appointment of the judicial and administrative members was amended to be appointed by a search-cum-selection-committee which would comprise a supreme court judge, chairperson of AFT (appointed by the government), defence secretary and another member of the executive. Thus, majority power would be with the executive. The supreme court has disagreed stating it cannot be tilted towards the executive.
The new rules place the AFTs under the defence ministry, whereas earlier, based on supreme court directions, they were placed under the law ministry. The power to remove members has also been diluted and the MoD can constitute a committee to recommend removal. These powers were earlier with the supreme court.
The new rules have reduced tenure of members from five to three years. It appears, when connected with earlier amendments, at opening doors for ex secretaries of the government, who retire at 62, to be nominated to the AFT, for which they were barred being overage.
These changed amendments, which would alter the functioning of the AFT and make it redundant for the very task for which it was created, angered many veterans who practice in AFTs and they approached the supreme court. The court is itself against this unilateral government action. While it has yet to issue its final judgement, which is slated for Jul, initial inputs indicate it has rejected the government’s notification.
The bureaucracy, smarting from a possible court rebuff, advertised for vacant posts based on its amended rules. It is now projecting to the court to permit it to proceed further on this selection. If it does so, then the AFTs would be redundant and just become just another example of the governments apathy to serving and veteran military personnel.
A fallout of the case has been that unless court orders are finally issued, no fresh appointments can be made. Hence most AFTs are either non-functional or those with multiple benches have just one functional bench. This has impacted clearance of cases, which have begun to pile up.
The sole reason for creating the AFT is now being lost. The government which has denied the forces NFU, OROP, removed entitled rations is now seeking to make the AFTs redundant. It is only a concerted effort by all who support the military to pressurize the government against making a mockery of an institution created to speed up justice.
About the Author
Maj Gen Harsha Kakkar
Retired Major General Indian Army