ADJUDICATION OF SERVICE DISPUTES RELATING TO DEFENCE IN INDIA

Presentation by Maj. Gen. Nilendra Kumar Director Amity Law School, Noida at IIPA, New Delhi on 6 September 2012

SERVICE DISPUTE The term ‘service dispute’ has no statutory definition.

However, this has been taken for the purpose of this presentation, to refer to all disputes, whether related individually, jointly or by the Service itself against a service or the Union Government.

In a democratic republic, disputes are meant to be settled by a dialogue; and failing which, in accordance with following rule of law concept in a legal manner.

CONTOURS 1. Nature of disputes 2. Causes of disputes 3. Number of disputes and size of problem 4. Framework and resources for settlement 5. Appraisal of the system 6. Recommendations

CATEGORY OF DISPUTES 1. Individual or personal 2. Non military individuals V the State 3. Group (e.g. Major Dhanapalan’s case or Maj. Gen. pension matter) V the State 4. Corporate 5. State V Union of India e.g. AFSPA 6. PIL 7. Foreign Corporates

The Union of India could be the target of the dispute i.e. as a respondent; or in some cases could be the initiator of the legal dispute.

NATURE OF DISPUTES COULD RELATE TO 1. Service conditions 2. Disciplinary awards 3. Procurement processes 4. Land matters 5. Human Rights violations

SERVICE CONDITIONS MAINLY RELATE TO  Promotion  ACR  Seniority  Adverse Remarks  Posting or tenures  Change of Arms/Service  Courses  Retirement/resignation/release  Accommodation  Pay and allowances  Leave

CAUSES 1. Old and antiquated laws 2. Nature of service where decisions often do not exhibit application of mind 3. Lack of flexibility amongst the decision matters 4. Frequent and arbitrary changes in policy 5. Lack of awareness of military ethos on the part of judges & lawyers 6. Corruption

NATURE OF SERVICE 1. Demand for implicit obedience 2. Liability to serve anywhere on land, sea and air 3. Pyramidical structure showing limited scope for career progression 4. Primacy to arms & fliers 5. Early separation by way of retirement

CPC SECTION 80 Notice No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered to or left at the office of a Secretary to that Government

EXAMPLE OF OLD AND ANTIQUATED LAWS 1. Explosives Act, Indian Tolls (Army and Air Force) Act, Works of Defence Act, Explosive Substances Act, Official Secrets Act, Manoeuvres, Field Firing and Artillery Practice Act, 1938

These laws have not changed over the decades

Army Act, 1950, Army Rules, 1952 and DSR (RA), 1987 have also remained unchanged over the decades Despite five years having elapsed after enactment of the Armed Forces Tribunal Act, 2007, it finds no mention in the Army Act and Army Rules.

REGULATIONS FOR THE ARMY (DSR), 1987 Silent on 1. Right to Information 2. Induction of Women Officers 3. Information Technology 4. Human Rights 5. War against terror or AFSPA 6. Tri Service Commands 7. Environmental Protection

Thus the laws are not in tune with times, and may be said to be outdated

Further, last two decade has seen involvement of senior officers, incidents of moral turpitude and sharp erosion in ethical standards.

There have been prosecutions for staging fake encounters and attempts to procure gallantry awards undeservedly.

Allegations about misuse of secret funds of military intelligence.

ERA OF SCAMS IN LAST TWO DECADES 1. Adarsh 2. Sukna land 3. Pune land matter involving the then Army Commander 4. Bungalow grab in Lucknow cantonment by an Army Commander 5. Tehelka 6. Procurement of rations (meat, dals & eggs etc.) leading to conviction of a Lt. General

The list appears to be endless

SCAMS GALORE 1. Divisional Commander in sexual harassment case 2. Procurement for peace keepers 3. Tent scam 4. Booz Brigadier 5. Ketchup Colonel 6. Sale of non service pattern of weapons 7. Sex for food 8. NDA job scam

Yet another matter that had continued to occupy centre space for months

CHANGE IN DATE OF BIRTH CONTROVERSY 1. Politicisation, MPs met the PM 2. Repeated representations 3. Keeping the decision to move Court secret 4. Abortive attempt to progress a PIL 5. AFT and High Court by passed 6. Supreme Court moved straightaway 7. Decision to withdraw and yet expression of dissatisfaction at Court decision

A clear example of unresolved dispute between MS Branch and AG’s Branch on one hand; and between Army HQ and MoD on the other.

Further, rank and file appear to have been left confused (and amazed)!

ORGANISATIONAL BIAS OR CLASS ACTION 1. Technical officers of Air Force 2. Grievances of Military Nursing Service Officers 3. Non grant of permanent Commission to women officers 4. Agitation against officers by other ranks in Northern Command & Samba 5. Class action litigation against continuation of AFSPA in J&K and North East

ADR MODES 1. Arbitration 2. Mediation 3. Reconciliation

Alternative Dispute Resolution (ADR) process ignored.

Government is the largest litigator

Thus every dispute finally ends into a litigation

Agreements and contracts are invariably one sided Reflective of rigidity and arbitrariness attitude of decision makers

WEAKNESS IN STATE CASE 1. Contracts are not drafted with care 2. Abnormal delays in formulating and filing of responses 3. Change of officials and at times of arbitrators 4. Careless and indifferent defence of cases when matters reach courts of law

EXISTING PRACTICE Responsibility 1. Legal Cells - Set up at the seat of major High Courts or at the location of AFT benches 2. Station HQ 3. NCC Unit

RESOURCES IX Officer IX Clerk

REMARKS 1. Legal Cell function mostly under the Static HQ 2. Where higher field formations co-exist Legal Cells operate under static HQ e.g. at Allahabad or Secunderabad.

3. Very often MS (Legal) or DV representatives approach Legal Cells directly and JAG Department is not in picture

There is no authentic data about total number of pending cases relating to MOD

DIFFERENT RESPONSIBILITIES OF BRANCHES  GS-Training, Courses, AFSPA  AG-Disciplinary cases, pay & allowances  MS-Officer cadre  QMG’s-Accommodation, ration, travel and canteens  E in C-Rent & allied charges  Medical-Disability, medical boards  ST-Supply contracts

FORUMS WHERE LITIGATION TAKES PLACE 1. Courts Martial 2. Judiciary 3. Tribunals (AFT and CAT) 4. RTI 5. NHRC 6. Arbitrations

Consequently no data or study available about :  Trend of increase or decrease  Trend about outcome of cases  What type of cases are increasing  Which Government counsel wins/loses  Reasons leading to adverse decisions

No branch would have the data about total pendency of court cases

Applicable Constitutional and legal regime are designed to best protect military disputes settlement mechanism.

CONSTITUTION OF INDIA Article 33 Power of Parliament to modify the rights conferred by this Part in their application etc. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to:- (a) the members of the Armed Forces; or (b) xxxx

(c) xxxx (d) xxxx be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Thus restrictions on fundamental rights constitutionally are permissible.

RESTRICTIONS IN THE ROLE OF HIGHER JUDICIARY Article 136 Special leave to appeal by the Supreme Court 1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

POWERS OF HIGH COURTS Article 227 (4) Power of Superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. (2) xx (3) xx

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

PROVISIONS ON SECURITY OF TENURE OF MILITARY PERSONNEL

Article 311 Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed

A step to cut down Military cases being taken to High Courts

Setting up of Armed Forces Tribunal The Armed Forces Tribunal Act, 2007

However, the move itself had certain deficiencies right at the stage of inception.

RESTRICTED JURISDICTION OF AFT 1. Transfer postings 2. Leave 3. Summary Courts Martial and Summary Trial

The appraisal so far is suggestive of negligible gains

WHY AFT IS NOT ABLE TO FULLY MEET MILITARY ASPIRATIONS 1. Lack of infrastructure 2. Shortages in members and staff 3. Want of authority to enforce (contempt powers) 4. Poor quality of judgments

Another major development

DELHI HIGH COURT Justice Pradeep Nandrajog’s decision dated 26 April 2011 in Colonel A.D. Nargolkar’s case Writ Petition No /2009

GIST OF ORDER 1. AFT cannot be said to be truly a judicial review forum as a substitute to High Courts. 2. The power of judicial review under Articles 226 and 227 is unaffected by the constitution of AFT. 3. Article 227 (4) takes away only the administrative supervisory jurisdiction of High Court over judicial supervisory jurisdiction over AFT.

4. Decisions by the AFT would be amenable to judicial review by High Court under Articles 226 as also under 227 of the Constitution.

MEDIA PERCEPTION Poor media image about credibility and effectiveness of in-house tribunals and forums of the military

Absence of a single agency with requisite reference resources, library, seniority and Accountability is a critical deficiency.

COMPARTMENTALISATION OF JAG RESOURCES BY HAVING SEPARATE OFFICES 1. Judge Advocate General’s Department 2. Military Secretary Legal 3. Disciplinary and Vigilance

DEFENCE OF COURT CASES APPLICABLE POLICY SPECIAL ARMY ORDER 5/S/2003/JAG

No rules, regulations or instructions formulated so far to introduce a system to deal with cases filed in Armed Forces Tribunal or with RTI or other tribunals.

No efforts made to re-visit the applicable policy after 2003.

Lack of familiarity of Legal Advisor (Defence) about military matters

RECOMMENDATIONS 1. Defence of court cases should be a command function rather than a duty for the staff 2. Thorough overhaul of laws 3. Framing of a Uniform Code of Military Justice to achieve uniformity of Rules 4. Integration of JAG Resources of three services for better management of litigation 5. Augmentation of JAG Department to create better manpower to deal with court cases 6. Creation of a separate pool of lawyers for military

As a matter of policy all laws, Acts, rules, regulations, instructions and orders should be brought for review at regular Intervals.

CONCLUSION An inadequate and ineffective machinery for settlement of service disputes would shake and erode confidence in military leadership. It would also be wasteful in time and resources.

Any Questions