MoD courts trouble

The defence ministry should accept the idea of a completely independent Armed Forces Tribunal and modify its internal processes to cut down litigation

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 have prevented this from happening. The AFT's subordination to the ministry of defence (MoD), which happens to be party in most AFT cases, poses a glaring conflict of interest. The answer, clearly, is to disassociate the AFT from the MoD and place it under the law ministry, along with other departmental judicial bodies. The law ministry, 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 vs 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, the 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 June 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 August 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. 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 lakh for five foreign visits by AFT members to subsidised 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 and Haryana High Court has already directed in a judgment on November 20, 2012, that the AFT be "brought within the control of the department of justice in the ministry of law & justice". Cited in this judgment is an earlier Supreme Court ruling that directs that the different departmental tribunals (such as the AFT) should all be brought under a "wholly independent agency" under the law ministry, which must "try to ensure that the independence of the members of all such Tribunals is maintained".

In a report tabled in Parliament on March 20, 2013, the Standing Committee on Defence backed the setting up of a Central Tribunal Division under the law ministry. "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 Centre, and the Allocation of Business Rules make the law ministry responsible for the "administration of justice".

Yet an official from the law ministry 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. 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.