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The Armed Forces Tribunal Act, 2007: A Critical Analysis

The Armed Forces Tribunal Act, 2007: A Critical Analysis

The bill to introduce a tribunal as a form of a redressal forum for cases involving armed forces personnel is a step in the right direction. Yet some of the provisions in the bill have been inadequately framed as opposed to the recommendations of the Law Commission's 169th report.

COMMENTARY

The Armed Forces Tribunal Act, 2007: A Critical Analysis

U C Jha

The bill to introduce a tribunal as a form of a redressal forum for cases involving armed forces personnel is a step in the right direction. Yet some of the provisions in the bill have been inadequately framed as opposed to the recommendations of the Law Commission’s 169th report.

U C Jha (ucjha1@rediffmail.com) is a retired air force officer.

Economic & Political Weekly

EPW
march 15, 2008

P
resident Pratibha Patil gave her assent to the Armed Forces Tribunal Bill on December 25, 2007, paving the way for the setting up of the country’s first ever redressal forum to adjudicate exclusively on cases pertaining to armed forces personnel. The Supreme Court, while hearing the case of Lt Col P P Singh Bedi (1982), had emphasised the necessity for an independent appellate forum for the armed forces. In 1983, the service headquarters were asked to examine the need for the Constitution of a court-martial appeals court. The issue remained dormant and the government did not take any action for almost two decades. The Standing Committee on Defence (20th report) recommended to the Lok Sabha on August 19, 2003 that a special court of appeal, on the lines of those in France, Germany, Russia, Sweden and the UK, be constituted for the redressal of the grievances of service personnel. The need was re-emphasised by the Law Commission in its 169th report. Finally, on September 29, 2005, the cabinet approved the proposal from the ministry of defence (ministry) for setting up an Armed Forces Tribunal for adjudicating service matters and appeals against the verdicts of courtsmartial. The Armed Forces Tribunal Bill, 2005 (the bill) was introduced in the Rajya Sabha/Lok Sabha on December 20, 2005 and was subsequently examined by the Parliamentary Standing Committee on Defence (the committee). The committee, after analysing the bill extensively, submitted its tenth report on May 23, 2006.

To start with, the tribunal will have a principal bench headed by a chairperson in the capital. It will consist of judicial and administrative members. Only a former judge of the Supreme Court or a former chief justice of a high court can be its chairperson. The judicial members will be retired high court judges, while the administrative members will be drawn

from the forces. Only those who have served as judge advocate general for at least a year or other officers not below the rank of major general or equivalent can be members. Benches of the tribunal would be set up in other places close to the formation commands of the three services. Once the tribunal is constituted, all trials pertaining to the army, navy and air force acts pending before the civil courts, including the high courts, would stand transferred before the tribunal. The tribunal will not be bound by the Code of Civil Procedure, but will be guided by principles of natural justice and subject to provisions laid down in the act. Any appeal against the tribunal’s orders would be made to the Supreme Court.

Original Jurisdiction

The tribunal will have original jurisdiction over service matters and will hear appeals from the verdicts of courts-martial (appellate jurisdiction). The term “service matters”, as defined in the act, includes (i) remuneration and pension;

  • (ii) tenure, including commission, appointment, enrolment, seniority, promotion, reversion, termination of service and penal deductions; and (iii) award of dismissal by a naval disciplinary court under Section 94 of the Navy Act, 1957. The tribunal will not have any jurisdiction in issues relating to (i) removal from service under the president’s pleasure;
  • (ii) transfers and postings; (iii) leave; and (iv) summary trials. Retired service personnel including their dependents and heirs will be authorised to approach
  • the tribunal in disputes relating to
    service matters.
    25
    COMMENTARY

    The lack of jurisdiction in matters relating to leave, transfers and postings, and summary trials is a serious lacuna in the tribunal’s original jurisdiction. The term “leave” was included in the jurisdiction in the bill. The committee, while examining the bill, had asked for the rationale behind the inclusion of leave in the definition of the term “service matters”. The ministry, while making submissions to the committee, stated that since “leave is something of a direct relevance”, it had been included in service matters. The ministry further clarified that there would be no scope of a person rushing to the tribunal in the case of denial of leave because care had been taken to see that a person had to first apply for and make use of the existing remedy. However, within a short span of time, the ministry again approached the committee with the apprehension that military units may be burdened with excessive litigation arising out of the issue of leave, which may affect their operational preparedness and discipline, and recommended the exclusion of leave from the jurisdiction of the tribunal. The ministry’s view that excessive litigation may arise out of the issue of leave and affect the units’ operational preparedness and discipline is not supported by any empirical study. The pending cases of armed forces personnel show that of a total of 9,365, only seven (0.074 per cent) relate to the issue of leave.

    Another important issue which has been kept out of the purview of the tribunal is that of transfers and postings. While justifying its exclusion from the jurisdiction of the tribunal, the ministry stated that for operational requirements and in the interest of discipline, transfers and postings cannot be included in the purview of the tribunal. The committee was of the same view. However, it expressed the desire that a clear-cut transfer policy be formulated by the services. It appears that the committee erred in its conclusion on this issue as well, as the available data reveal that only 74 (0.79 per cent) of the 9,365 pending cases relate to postings/ transfers. The apprehension that armed forces personnel would rush to the tribunal for a remedy in cases relating to transfers and postings is not true because they have to make use of the existing remedy.

    The tribunal is not empowered to entertain any petition against the award of minor punishments like forfeiture of seniority or severe reprimand awarded to the officers or detention/imprisonment up to 42 days to personnel below officer rank.

    Summary Trials

    Summary disposals and trials were kept within the purview of the tribunal in the bill. The ministry, however, subsequently

    Delhi University AD (18 x 2)

    proposed that summary disposals and trials be kept outside the purview of the tribunal since the punishments awarded under this process are minor in nature. As punishments awarded under summary disposals and trials by the commanding officers have invariably affected the career prospects of the serving personnel, the committee recom mended that they must be in the purview of the tribunal. The ministry’s apprehension that units may be embroiled in innumerable litigations is again baseless.

    march 15, 2008

    EPW
    Economic & Political Weekly

    COMMENTARY

    The denial of the right to appeal to the tribunal in these matters, when viewed from a different perspective, would lead the military chain of command to harbour the perception that their decisions, even if arbitrary, are not to be questioned. The aggrieved person would then be forced to seek remedy through the writ jurisdiction of the high courts or the Supreme Court. This would be contrary to the aims and objectives of the tribunal.

    Appellate Jurisdiction

    The tribunal has jurisdiction in relation to appeals against the order, findings or sentence passed by a court-martial. However, the summary court-martial (SCM) – the most extensively used military procedure against personnel below the rank of junior commissioned officers – has been excluded from the jurisdiction of the tribunal, unless it awards imprisonment for more than three months or dismissal. The SCM was introduced after the mutiny in 1857 and is peculiar to the Indian army. During a period of six years, from 1999 to 2004, an average of 995 SCMs were held every year. Thus a large number of army personnel have been deprived of their livelihood, freedom and pension by their own officers on the pretext of discipline. Trials held under the SCM have been criticised by the court for awarding excessive and harsh punishments, denying procedural rights guaranteed under Article 14 of the Constitution, lack of evidence, arbitrariness and lack of justice. Such an arbitrary system of justice is not followed in any other democratic country.

    Section 15 (6) of the act, giving the tribunal the power to enhance the punishment awarded by a court-martial, is against the fundamental principles of natural justice. Such coercive power to enhance the punishment is not exercised by the military appellate courts in other democracies. The UK Court-Martial (Appeals) Act, 1968, provides that the sentence awarded during the disposal of an appeal shall not be a sentence of greater severity. The defence minister’s claim in the Rajya Sabha that the bill is almost at par with the existing redressal machinery of countries like the UK, France, Canada and Australia may not be correct.

    Economic & Political Weekly

    EPW
    march 15, 2008

    The tribunal is empowered to grant bail to a military-accused. However, an accused shall not be released if he has been charged with an offence punishable with death or imprisonment for life. The tribunal’s power in this regard is less than that bestowed on the high courts. The Army Act, 1950 is a copy of the Indian Army Act, 1911, passed by the British to govern “natives”. Its provisions were harsh and a large number of the offences provide for the punishment of death or life imprisonment. Before making any restrictions on the tribunal’s power to grant bail, it was necessary to examine the punishments, awarded by the courts-martial in the last 10 years. There would be very few cases where persons have been awarded death or imprisonment for life, though they might have been charged under the sections where the maximum punishment is death or life imprisonment. The committee’s recommendation that the tribunal may have discretion to grant bail to personnel charged with offences punishable with death or imprisonment for life – as the high courts do under section 437 of the Criminal Procdure Code (CrPC) – has been ignored by the government. The tribunal’s power to grant bail should be based on the guidelines issued by the Supreme Court in Hussainara Khatoon vs Home Secretary (1980) 1 SCC 93.

    Legal Aid

    Insufficiency of legal aid would pose a serious handicap for the armed forces personnel approaching the tribunal. The question of legal aid becomes more pertinent in the context of the armed forces because the fundamental rights of those serving in the forces have been abrogated by the Constitution. The democratic provision of equality before the law strongly warrants the provision of legal aid for the armed forces personnel, especially below the officer rank.

    Judicial Delays

    The act does not provide any time frame for deciding an appeal. It makes a vague provision in Section 23 (2) that every application shall be decided “as expeditiously as possible”. The committee’s recommendation that the tribunal should decide every case within six months has not been accepted by the government. Since all the documentary evidence would be available with the services headquarters and the appellant/witnesses could be summoned without undue delay, the tribunal must decide an appeal within a fixed time frame.

    The act also provides for the transfer of pending cases. Every suit or other proceedings pending before any court, including a high court, before the date of establishment of the tribunal would stand transferred to the tribunal. The pending cases [Kumar 2000] relating to the armed forces in various courts are over 1,00,000. The tribunal will inherit this backlog and may take about 10 years to clear it. An alternate dispute settlement mechanism must be worked out by the tribunal to finalise verdicts for the pending cases.

    A Human Rights Based System

    Colonial hangover in the Indian armed forces has caused the military justice delivery system to remain out of step with social justice. The bulk of those who serve in the armed forces are from socially and economically backward classes. Even when wronged by the decision of a court-martial or an unfair administrative action, they are unable to take recourse to civil remedy due to economic constraints. Thus, in the past, only a few cases have been referred to the superior courts. In many of these, the courts have been highly critical of the military for awarding biased and disproportionate punishments.

    More than 1.4 million Indians who volunteer to serve in our armed forces deserve better. There is an immediate need to bring in systematic reforms in the military justice system. Hopefully in the near future, the government would remove the shortcomings of the tribunal so that bright and courageous people do not shy away from joining the forces on account of an inadequate justice system.

    References

    Kumar, Brigadier Nilendra (2000): Law Relating to Armed Forces in India, Universal Law Publishing Co, New Delhi, p 116.

    P P S Bedi vs Union of India, AIR 1982, SC, p 1413.

    The Standing Committee on Defence (2005-06): Tenth Report: The Armed Forces Tribunal Bill, 2005, available at http://164.100.24.208/ls/ CommiteeR/Defence/2report.pdf

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