IESL/509/2016 22 Sep 2016
Hon’ble Justice Mr. T S Thakur
Chief Justice of India
Supreme Court of India
NON AVAILBLITY OF JUICIAL MEMBERS IN ARMED FORCES TRIBUNALS SERIOUSLY IMPACTING ADMINSTRATION OF JUSTICE AND HITHERTO DISCRIMINATORY PROVISIONS OF THE ARMED FORCES TRIBUNAL ACT 2007
- I have the honour to state the following to seek your kind attention and hierarchical indulgence in resolving the impasse which is seriously affecting the administration of justice to the Military personnel and their dependents through Armed Forces Tribunals. The same has presently arisen due to non-availability of Judicial Members in the said Tribunals.
- It is submitted that out of the 17 Benches in the country only five (5) are at present functional. The Armed Forces Tribunal (Principal Bench) at R K Puram New Delhi with its Chairperson is authorised three Benches. Presently the organisation is headless as ideally much desired Chairperson with two other Judicial Members are not posted.
3 A large number of cases relating to service matters of the members of the Armed Forces of the Union of India are pending for a long time. A matter filed on 23 Aug 2016 with prayer for interim relief by an aggrieved member of the Armed forces and listed thrice since then could not be heard as the concerned Bench has been non-functional due to non-availability of the Judicial member on the last three dates of hearing when the said matter was listed. Imagine the frustration of an aggrieved petitioner whose prayer for interim relief since 23Aug 2016 has been in vain due to no fault on his part. The very object of constituting these independent adjudicatory forums for the defence personnel to ensure speedy deliverance of justice has thus come to naught. The aforesaid situation has resulted in denial of timely justice to serving service personnel, ex-servicemen, disabled soldiers and war widows. The existing system of administration of justice in the Armed Forces provides for submission of statutory complaints against grievance relating to service matters and pre and post confirmation petitions to the prescribed competent authorities against the findings and sentences of court martial. The nature of grievances is such that unless resolved in a time bound manner their essence and consequent relief is rendered ineffective. Timely relief therefore is of paramount importance.
4, being a responsible member of the Supreme court bar also take this opportunity to bring to your kind notice another very serious anomaly which has crept in the form of lack of an effective remedy of judicial review over the orders passed by the Armed Forces Tribunals thereby making it the first and the last court of appeal for litigants. Though an appeal on “points of law” or “of general public importance” or on matters which the Supreme Court considers so exceptional that the Apex court of the land ought to hear them, has been provided in the form of Section 31 of the AFT Act, 2007. It was reasonably expected that all other issues could be challenged before the High court in view of the facts that the powers of the High Court under Article 226 and 227 were preserved by Section 14 of the AFT Act, 2007. The Parliamentary Committee which has examined Section 31 of the AFT Act, 2007 has itself recommended Judicial Review by high Courts (Para 90 of Parliamentary standing committee on defence, 18 report, Lok Sabha, 2012-2013 refers). The same was also in line with the law laid down by the constitutional bench of the Supreme court in L Chander Kumar versus U.O.I. and Ors, (1997) 3 SCC 261 and the three Judge Bench in Colombia Sportswear Company versus DIT, (2012) 1 SCC 224. In any case 99.9% of the cases before AFT are matter personal to the litigants and seldom of general public importance. Whereas the High Court’s continued to entertain the writs against the AFT order, the situation changed after a plea to the effect filed by the Ministry of Defence which was later allowed. The same has potentially left litigants without cost effective remedy. On one hand there is minimal scope of appeal in Supreme court on the other Hand it is well known that defence personal, Ex-Servicemen, disabled soldiers and their families can hardly afford to approach the Supreme court from remote places thereby not only making justice inaccessible and unaffordable, but also reducing the Supreme court into the first appellate court for such routine and mundane service matters as specifically deprecated in L Chander Shekar’s case. The central government has thus completely ignored the recommendations of the Parliamentary Standing Committee on Defence, 18 report, Lok Sabha, 2012-2013 made in Para 90 which itself had approved Section 31 with a Caveat that challenges would still lie before the High Court as per L Chander Shaker’s case and also has not yet acted upon a similar recommendation contained in Para 7.14 of the report of the high level committee of experts on litigation constituted by Ministry of Defence (2015) which has also favoured jurisdiction with the High Court. It may also be recalled that while for the defence community, the AFT is the first and the last court, there exactly similarly placed counterparts can conveniently challenge the orders of the Central Administrative Tribunal before the High Court’s within their own states and then also approach the Supreme court in case they are dissatisfied. It is ironical to imagine a disabled soldier or a widow in Kerala or Manipur to approach the Supreme Court concerning his or her case involving meagre sums and then try to prove that the case involves a point of law of general public importance. It may therefore be seen that whereas the civilians get a three tier system of justice and judicial review, the Military counterparts are encumbered with only the AFT which is practically the court of first as also the last resort.
5 Finally, I would like to bring to your notice that in the month of Sep 2016 no court in AFT (PB) 1, 2and 3 is fully functional. Cause list of Court No. 1, 2 and 3 for the whole month says in the beginning “This Bench will not Assemble Today”, the pending cases as well as cases for admissions are adjourned indefinitely. As a responsible member of the bar as well as holding an office of trust in the service of ex-servicemen, it is my solemn duty to bring this to your kind notice that if the appointment of the Judicial Members is kept pending, it will perpetuate injustice. The Petitioners will continue to suffer with no hope of redressal of their grievance. I, therefore respectfully appeal to you to safeguard the Soldier’s interest by providing timely remedy. This would be possible if your august office prevails upon the powers
that be to take necessary steps to resuscitate the comatose AFT by urging the Govt. to appoint Judicial Members without any further delay. In the facts and circumstances submitted herein above a rethink and reconsideration of Section 31 of the AFT Act is also mandated.
Lt Gen (Dr) Balbir Singh, PVSM, VSM** (Retd)