Friday, July 30, 2010

HOW & WHY INSUGENCY - Nation Understands :: Administrative egotism and mischief must cease

THE new National Litigation Policy has special significance for the defence services, particularly disabled veterans. The policy ordains that frivolous appeals would not be filed by government departments and that appeals on orders of Tribunals shall be an exception rather than the rule. Further, false and misleading pleas or technicalities shall not be espoused.

For long veterans have been at the receiving end of paper violence perpetrated by the government’s legal pundits, who, guided by a strange spirit of sadism, exhaust every single game in the book to ensure benefits do not reach the beneficiaries even when directed by higher judiciary.

To begin with, medical authorities indulge in “literal” rather than “liberal’ interpretation of rules, thereby denying benefits to disabled soldiers. They forget the “spirit” while clinging to the “letter”. When there is a court order granting disability pension, appeals and reviews are filed as a matter of routine even in cases fully covered by earlier judicial rulings.

It is not the higher echelons of governance or the services headquarters that are to blame, but the swarm of section officers, under secretaries and deputy secretaries who rule the roost.

The lower-level bureaucracy with its caustic file-notings, unfortunately, runs the government.
That the new policy specially mentions “false” and “misleading” pleas shows the powers that be are aware of the malaise. Appeals are filed not out of legal necessity but because of administrative egotism – How could a petty employee win a case against the mighty officialdom?
Then comes the stage where dubious pleas are presented before the courts, which if not rebutted by a well acquainted legal brain, end in pronouncements which can hardly be termed well-rounded.
This reminds me of some cases with special reference to disabled soldiers. In Secretary MoD Vs Ajit Singh, the defence ministry is on record, stating that disability pension was not released to him since he did not have the minimum required service of 10 years. In reality, there is no minimum service requirement for disability pension and even a recruit is entitled to the same.

In the recent case of Karan Singh Vs UOI, the government espoused that the Army alone provides disability pension to its employees. The truth is that civilian employees are also entitled to exactly the same benefits. In P.K. Kapur Vs UoI the government went hammer and tongs proclaiming it had the right to fix a cut-off date for grant of certain disability benefits that had been refused to pre-1996 retirees. The case went in favour of the government since the Court was never informed that the said benefits through the same master notification had already been extended to similarly placed pre-1996 civilian retirees. The petitioner could not rebut the falsehood since he could not afford a lawyer.

It is not that mischievous elements are playing around only with the judiciary. The higher strata of governance is also not left untouched. In a speech last month, apparently prepared by a similarly inclined officer, the Defence Minster was made to “announce” with pride that the government had introduced an additional amount of Rs 3,000 as constant attendance allowance for disabled soldiers keeping in view their sacrifices. So far so good, but the humble Minister was not in the knowledge that firstly, this allowance is applicable to civilian employees too and hence has nothing to do with valour or sacrifices. Second, the concept is in force since times immemorial and even its enhancement is old news which was announced in March 2008 by the Sixth Pay Commission. Third, it is not applicable to all disabled personnel but only to 100 per cent disabled retirees.
In the past two years there have been other instances where the political executive and the top brass have been misled into announcing beneficial “policy decisions” by hiding from them the fact that the same had actually been necessitated due to Supreme Court decisions.

THERE is an awakening to see that military law is made purposeful and pragmatic not only to answer the needs of the defence personnel but also to ensure it is in consonance with the rule of law. The grievance mechanisms within the services also need a re-look. For example, the Complaints Advisory Board (CAB), through which all complaints are routed, is staffed by officers with no exposure to law whereas many complaints have legal ramifications. Law qualified people in CAB can render appropriate advice at the initial stages itself, thereby cutting down the possibility of litigation.
— Brig (Dr) S.D. Dutta (Retd), Ex-JAG Deptt and practicing lawyer

LAW cannot be static but ought to be dynamic and military law can be no exception. With the Armed Forces Tribunal, more and more court martial trials are bound to come under intense scrutiny and we need legal cover at the grassroots. There is therefore, an urgent need to revisit the system of military justice to minimise if not altogether eliminate adverse fallouts. Then there is the issue of the summary court martial, an important mechanism of instilling discipline, where the CO is the judge as well as the prosecutor and all elements of the court function within his command. Since military law and justice are two sides of the same coin, it is important to review this.
— Col R. Balasubramanian (Retd). Ex-JAG Deptt and practicing lawyer

WHEN the Army Act 1950 was introduced, it was just old wine in a new bottle and since then we have paid lip service to changes required in military law. Even with the Tribunal coming up, a large number of service personnel cannot approach it because the it lacks jurisdiction in several areas like transfers and in certain cases of summary courts martial. Also with the Tribunal now functional, several provisions in the Army Act pertaining to court martial like review of sentences by high authorities or pre and post confirmations petitions need to be done away with.
— Col S.K. Aggarwal (Retd), Ex-JAG Deptt and practicing lawyer

INDIAN Military Law is comprises Army Act, Navy Act and Air Force Act and most Acts for paramilitary force have drawn their inspiration from the Army Act. These special enactments provide for a sound system of administration of justice in the defence forces and at the same time provisions that ensure the maintenance of, as is also the need for, high standard of discipline among the personnel. Now with the setting up of the Armed Forces Tribunal, there is more confidence among litigants as the scope of judicial intervention and review has increased, besides speedier disposal of cases.
— Rajeev Anand, High Court lawyer

MILITARY Law is one of the most comprehensive pieces of legislation and it provides for efficacious and speedy justice. It is required to be humane but firm to maintain the discipline and morale of the armed forces. There is erroneous impression that military law in India is archaic, harsh and arbitrary. The law itself is humane but its manner of implementation leaves a lot to be desired. The inherent checks and balances ensure smooth dispensation of justice and some of its provisions need to be emulated by the civilian courts.
— Arvind Moudgil, High Court lawyer

WE must apply the basic concepts of justice and humar rights to the armed forces, while maintaining discipline and operational efficiency. Many countries have amended their military laws regarding the rights of the accused and the human rights standards. We have also made a beginning by setting up Armed Forces Tribunal at various places across the country.
— Capt Sandeep Bansal, High Court lawyer

Article by:
Navdeep Singh
(Maj Navdeep Singh is a lawyer practicing in the Punjab and Haryana High Court)

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