ARMED FORCES TRIBUNALS : Disempowering The Soldier (R)

SOURCE:
https://www.dailypioneer.com/2018/columnists/disempowering-the-soldier.html






By curtailing the effectiveness of the Armed Forces Tribunals, the Government is destroying the military justice system which is a disservice to serving and retired personnel

              Disempowering The Soldier

                          Deepak Sinha

Friday, 30 November 2018 

With election fever having gripped major parts of the country, television coverage of Prime Minister Narendra Modi hitting the poll trail is common, as also his constant reference to the so-called “surgical strikes” in his speeches. It is obvious that through his words of sympathy and support for the sacrifice and efforts of the military, he is intent on furthering his reputation as a firm and pro-active leader. But despite semantics and bombast, his Government continues with unabated ferocity in its agenda to disempower and dismember the military. Among a host of other issues, take the case of the Armed Forces Tribunals (AFT), another important institution that has been in the line of fire by this Government over the past year.

It was just about a decade ago when the Parliament, in its wisdom, transformed the military justice system by enacting the Armed Forces Tribunal Act, 2007, in order to address the serious lacunae in the existing system where justice was dispensed within the military. As per its website, it provided for the “adjudication or trial of disputes and complaints with respect to commission, appointments, enrolments and conditions of service in respect of persons subject to the Army Act, 1950, The Navy Act, 1957 and the Air Force Act, 1950.”

More importantly, it also provided for “appeals arising out of orders, findings or sentences of courts — martial held under the said Acts and for matters connected therewith or incidental thereto.” In addition, it also adjudicates cases pertaining to military veterans and their heirs in issues relating to service matters. The AFT also has a distinct advantage since appeals against its findings can be made directly to the Supreme Court, thereby speeding up the judicial process for the affected individuals and the Government.

The critical role played by the AFT can best be understood in context of the fact that the Armed Forces being hierarchical organisations steeped in tradition, demand unquestionable loyalty and implicit obedience to orders from its rank and file. In this paternalistic and excessively conservative environment if, for any reason, an individual finds himself on the wrong side of the track, be it with regard to personnel or disciplinary issues, his superior officer becomes the prosecutor, jury and judge — all rolled in one.

While this provides for a quick dispensation of justice, undoubtedly extremely important in certain circumstances, it may not necessarily be unbiased or provide for an impartial or just resolution of the issue. The establishment of the AFT, thus, provided for an extremely important element in the military justice system. It gave all ranks an opportunity to approach an independent authority if they felt that they had not received justice at the hands of their superior officers for whatever reason.

Besides the principal Bench in New Delhi, the AFT has regional benches in 10 other cities across the country. While Delhi, Lucknow and Chandigarh have three Benches each, all other centres have a Bench each, a total of 17 Benches. Each Bench comprises of a judicial member and an administrative member. The judicial members are retired High Court judges and administrative members are retired members of the Armed Forces who have held the rank of Major General/ equivalent or above for a period of three years or more.

It demands no great intelligence to conclude that the judicial member is appointed based on his experience and knowledge of law and functioning of the criminal justice system. The administrative member is selected based on his long and distinguished service in the military and knowledge in associated matters.

However, over the past year while members have retired at regular intervals on completion of the laid down tenures, new appointments have not been forthcoming with a result that presently, of the authorised 35 members for 17 Benches, there are a total of only seven judicial members and eight administrative members presently nominated to the AFT. This implies that the Armed Forces Tribunals is presently functioning at less than 40 per cent of its strength.

Another five members, including three administrative members, will retire by May 2019, which would make the Armed Forces Tribunals virtually non-functional, if new members are not appointed. For all intents and purposes, circumstances leading to the prevailing state of affairs cannot be attributed to the lack of suitably-qualified judges or service officers. But it clearly points towards a deliberate attempt by the appointing authority and the Ministry of Defence to nullify their effectiveness at the cost of servicemen and veterans alike.

It is a matter of public record that there have been numerous occasions on which the various Benches of the AFT have ruled against the stand of the Ministry, thereby causing much embarrassment and humiliation to the Ministry. As per reports in the media as on date, the Ministry of Defence has a total of over 7,000 appeals against judgements of the AFT pending in the Supreme Court.

Obviously, the Defence Secretary finds himself in an unenviable position and can hardly be happy with this state of affairs, especially given the fact that he is a member of the selection committee that appoints members to the Armed Forces Tribunals. This attempt to curtail the effectiveness of the AFT could, therefore, well be because of this, which makes it a clear case of conflict of interest. Incidentally, a petition is under consideration of the Punjab and Haryana High Court since 2012 on this very issue and the need to place the AFT under the Ministry of Law instead.

However, a more disturbing reason could be that the Government’s attempt to introduce new rules through the Finance Bill 2017 were stalled when it was stayed by the Supreme Court in its judgment of February 9, 2018, in the matter of Kudrat Sandhu versus the Union of India.

As per the new rules, the appointment of administrative members was to be no longer restricted to the military, but was also open to others with at least 20 years of public service in such fields as economics and finance. Clearly, expecting non-military members to be conversant with military traditions and customs, procedures and conditions of service was not only impracticable, to say the least, but also made no sense. Obviously, this was nothing but a brazen and unashamed attempt to add to the sinecures available for retiring bureaucrats, which given their bent of mind, would result in the Ministry of Defence getting things their way from their own erstwhile colleagues.

Whether the Armed Forces Tribunals has been brought to its knees by the deliberate actions of unconscionable bureaucrats or utter lack of empathy of politicians is of little concern. The truth is, by curtailing the effectiveness of the Armed Forces Tribunals, the Government is destroying the military justice system which is a disservice to serving and retired personnel. Moreover, it is denying them justice that is their due, given that they have no other legal recourse available.

(The writer is a military veteran, a Consultant with the Observer Research Foundation and Visiting Senior Fellow with The Peninsula Foundation, Chennai)

SOURCE:
http://indianexpress.com/article/india/aft-allows-petition-seeking-nfu-for-defence-officers-at-par-with-group-a-services-4441872/

AFT allows petition seeking NFU for defence officers

           at

par with Group ‘A’ services

                                                  by 

                   Man Aman Singh Chhina

December 23, 2016 6:30 pm

The petitioner had contended that the morale of 

officers of the armed forces has been lowered by

 the government by non-grant of the NFU and 

thus lowering the established status of the armed 

forces officers since independence.

The bench comprising the officiating chairperson of the AFT, Justic BP Katakey and Lt Gen Sanjiv Langer today delivered the judgement on the petition which had been reserved some weeks back.

In a verdict, which meets the long-standing demand of thousands of defence services officers, the principal bench of the Armed Forces Tribunal (AFT) in New Delhi has allowed a petition demanding Non-Functional Upgradation (NFU) for defence officers on the pattern of civil services officers of Group ‘A’ services. The bench comprising the officiating chairperson of the AFT, Justic BP Katakey and Lt Gen Sanjiv Langer today delivered the judgement on the petition which had been reserved some weeks back. Col Mukul Dev of the Army’s Judge Advocate General’s (JAG) Branch was the principal petitioner in the case which also has around 500 serving Army officers as co-petitioners.

Speaking to The Indian Express, Col Rajiv Manglik (retd) advocate for the petitioners said, “NFU been allowed as given to defence officers on the pattern of civilian officers as given by the 6th Pay Commission and it will be applicable for all three services-Army, Navy and the Air Force. It has also been stated if NFU is implemented for civilians in 7th Pay Commission it will be given to armed forces officers also. The advocate also said that the bench has allowed arrears for NFU for a period not exceeding three years from the date of the judgement. “The AFT has also denied the leave to appeal in the Supreme Court to the respondents ie. the Union of India,” said Col Manglik.

The petitioner had contended that the morale of officers of the armed forces has been lowered by the government by non-grant of the NFU and thus lowering the established status of the armed forces officers since independence. 

He had also argued that the stagnation in the armed forces is more acute than the civil services and that the denial is in clear violation of Article 14 and 16 of the Constitution “as the equals since independence have been made unequals”.

It was also argued that the purpose of grant of NFU is not to equate the monetary benefits or earnings enjoyed by a particular service, but it is granted with the aim to remove the stagnation due to the acute shortage of vacancies and grant parity of promotional avenues within the IAS with stipulated lead of two years to the IAS.

The petitioner had said that the parity established since independence and upheld by the pay commissions in succession between the armed forces and the All India Services/ Group ‘A’ services and IPS in particular has been disturbed and the petitioner has been deprived of the benefits extended to his counter parts in parity in the civil services.

It had been contended that the armed forces officers cadre meets all the attributes attached to the Group ‘A’ organised service. The petition says that the NFU has been denied on the pretext that Military Service Pay (MSP) has been given to armed forces officers. Citing this as a “gross mis-concept” the petition said that the grant of NFU is to alleviate the acute stagnation in service, whereas the MSP and other allowances is due to the postings at various difficult terrain and living conditions.

It was also pointed out that there are a number of Group ‘A’ services, which do not meet all the criteria for the group, yet they have been awarded NFU. The services mentioned are Indian Legal Service and Indian Trade Service, Indian Statistical service, Indian Economic service and Central Information service.

What is NFU?

Non Functional Upgrade (NFU) entitles an IAS officer and other Group ‘A’ services officers of the civil services to get the pay scale of the highest promoted officer of their batch even if he or she is not promoted to the same rank. This higher grade is given two years after the batchmate achieves the promotion. 

The aim of giving NFU is to alleviate the stagnation in the service due to non-promotion. Due to the steep pyramid of promotion in armed forces hierarchy, a large number of officers do not make it to the next selection rank. However, NFU has not been made applicable to armed forces. The Delhi High Court in its recent judgement has held that NFU is also applicable to officers of the central paramilitary forces.

© The Indian Express Online Media Pvt Ltd





Thank you Col Mukul Dev.

 
Followng addl points are worth noting:-

1. Armed Forces declared as organised Group A Services by the AFT.

2. All letters issued by the Govt to deny Group A status and NFFU quashed by the AFT.

3. Govt denied leave to Appeal the order in SC by AFT which means their only option may be to file a SLP befoe SC seeking leave to appeal the order.

4. All contentions of Mukul upheld by AFT.

5. Arrears to be paid within 4 months.

6. Retired will also benefit as notional pay for determining OROP Pension and 7 CPC pension will also have to be refixed.
 
Unquote
 
Brig Narinder Dhand,
http://signals-parivaar.blogspot.in

Veterans Body Writes to PM on Right to Appeal in High Courts

SOURCE:

http://indianexpress.com/article/india/india-others/ex-armymen-body-writes-to-pm-on-right-to-appeal-in-high-courts

 Veterans Body Writes to PM on Right to                    Appeal in High Courts

                                   By

             Man Aman Singh Chhina

 

April 15, 2015

· Sumitra Devi, whose husband died during Kargil war due to heart attack was refused liberalised benefits by MoD, which are admissible only in operational deaths. AFT, too, dismissed her petition but the High Court quashed AFT’s order and granted relief.

· Lt Nishant Karol of the armoured corps died during a battle. AFT allowed the pension to parents only for a period of 6 months prior to filing of the petition. The High Court set aside the order and directed the release of pension from the date of death.

· Maj Arvind Suhag suffered 100 per cent disability during an operational move in Kargil area. AFT refused the grant of war injury pension. The Delhi HC set aside AFT’s order and granted him the applicable war injury pension.

All the above cases show that the litigants from the defence community had a potent avenue of appeal in the high courts across the country which has been taken away by an apex court judgment last month.

 

Now, one of the largest ex-servicemen body in the country has written to Prime Minister Narendra Modi asking for an amendment to the Armed Forces Tribunal Act to allow for appeals in the high courts.

Writing to the PM, Major General Satbir Singh (retd), Chairman, Indian Ex-Servicemen Movement (IESM) has said that the majority of litigants before the AFT cannot afford litigation in the SC where an appeal is in any case not admissible unless one can prove a

“point of law of general public importance”.

“We have reasonable information to believe that one of the grounds raised by the MoD/Army in the appeal for denying the right of judicial remedy, like other citizens of India, was that fundamental rights can be restricted/abrogated under Article 33 of the Constitution for defence personnel and hence a judicial remedy under writ jurisdiction of high court would not be available. If it is true that this argument was raised, then it is the most unfortunate that the system itself is pleading for placing defence personnel on a lower pedestal than other citizens and pleading before the Supreme Court that the military community does not deserve the enjoyment of fundamental rights like others,” said Singh.

The letter goes on to say that it is not understood how the defence ministry expects poor litigants, including disabled soldiers and widows from all over the country, to travel to Delhi and engage lawyers in SC to fight their cases. Most of the cases in the AFT involve issues such as disability benefits, pension, minor allowances, pay fixation, ACRs etc and litigants would now be expected to suffer in silence if they feel that they have not got justice from AFT.

Speaking to The Indian Express, Major Navdeep Singh, a former President of the Bar Association of AFT Chandigarh bench said that the decision of the SC based on the appeal filed by the MoD makes access to justice impossible and illusory for veterans and widows since on one hand the high courts have been asked not to entertain  writs against AFT orders and on the other hand there is no provision of appeal in the Act to the SC.

“The situation is in teeth of constitution bench decisions of the SC including the L Chandra Kumar’s case, Kartar Singh’s case and more recently the National Tax Tribunal judgement of 2014,” he said.

According to Singh, AFT functions under the MoD and even its members are appointed by the MoD and selected by a committee which has the Defence Secretary as its member.

 “We request you to kindly abrogate Sections 30 and 31 of the AFT Act so that AFT orders can be challenged on the lines of the Central Administrative Tribunal (CAT) thereby making justice accessible and practical for defence personnel, ex-servicemen, widows and their families,” said Singh in the letter.   

First Published on: April 15, 20156:45 pm

 

Soldiers, Not Second-Class Citizens

Source:

http://www.dailypioneer.com/columnists/oped/soldiers-not-second-class-citizens.html

     
     Soldiers, Not Second-Class Citizens

                                        By
                                                            Deepak Sinha

Monday, 13 April 2015

The Supreme Court has taken the burden of hearing writ petitions against the Armed Forces Tribunal away from High Courts, and upon itself.

This doesn’t speed up legal processes but in fact takes away the soldiers’ right to appeal 

Both the print and the broadcast media have focussed on the landmark ruling of the Supreme Court, abrogating the repugnant Section 66A of the Information Technology (Amendment) Act of 2008 as unconstitutional. In doing so, the apex court has shown itself to be a powerful defender of the citizen’s fundamental right to freedom of speech and expression.

Sadly, at around the same time, another landmark order received little media coverage. The highest court of the land turned approximately five crore members of the military community, that includes serving soldiers, veterans and their families, into bona fide second-class citizens.

In this retrograde action, the military members received no support from civilian bureaucrats in the Ministry of Defence, who — and this will certainly come as a big surprise to most of readers — are considered by most military men to be even more dangerous than the most fearsome militant they may have met!

 

     (COROLLARY: BABU of  MOD is more DANGEROUS than the most fearsome MILLITANT ever encountered )

 

 

In fact, one can go so far as to state that there are many within the military who believe that the damage that the civilian bureaucracy has inflicted on the military over the years, in every aspect of its functioning, far outweighs anything that any of our enemies has ever been able to do us.

                (are BABUs are NAXALs to AFS )

To be fair to the bureaucracy, senior officers of the military too have certainly played their part and supported them in their shenanigans, some deliberately for their own ends, but most because, they were unable or unwilling to comprehend the intent or ramifications of the issues involved.

 

        (  AVS COMMITEE's PLASTIC CARROT GIFT )

In this particular case, in an appeal by the Ministry of Defence, based on Article 33 of the Constitution that empowers the executive to restrict or abrogate the fundamental rights of members of the Armed Forces — an article that incidentally, is also applicable to other uniformed services including the police — a two-judge Bench in its order of March 12, has taken away the right of High Courts to hear writ petitions that are filed against the orders of the Armed Forces Tribunal.

It has, instead, directly taken upon itself, the burden of such litigation. You can be forgiven for believing that by its actions, the Supreme Court has ensured that members of the Armed Forces will receive speedy justice, something that many citizens can only wish for in this country.

Unfortunately for us, the implications of the ruling, as lawyer and tireless advocate for the rights of the military community, Major Navdeep Singh, has explained,

                       is nothing short of disastrous.

The Supreme Court only entertains appeals that concern a ‘point of law of general public importance’ involving the case.

The issue in question here is the fact that, as per the Supreme Court itself, ‘public importance’ does not include issues that are personal to litigants, such as matters pertaining to disability or to other kind of pensions, pay, promotions or annual confidential reports.

 

This implies that most petitioners will never be able to challenge any order of the Armed Forces Tribunal that they are dissatisfied with.

Joseph Heller of Catch 22 fame would have certainly appreciated the humour of the situation. Thus, in practical terms, the court has ensured that the Armed Forces community does not deserve what every murderer or rapist, or for that matter, what even Pakistani terrorist Ajmal Kasab took for granted:

 The right to appeal against the orders of every court till it was finally disposed of by the highest court of the land.

 

 

 The Supreme Court has, in one fell swoop, demolished the cardinal principle of democracy — the right of appeal against what one may consider an unfair judicial ruling.

The tragedy does not end here because most cases before the Armed Forces Tribunal pertain to military veterans or widows and next of kin, none of whom are affected by Article 33, which among others was invoked to justify the ruling. Moreover, this ruling is only specific to the Armed Forces and not to others in uniform.

 Ironically, it does not apply to the bureaucracy that pushed for it, since the orders of the Central Administrative Tribunal can be challenged in the High Court.

We need to ask ourselves: What was the necessity for the Ministry of Defence to have appealed against High Courts’ entertaining writs by Armed Forces personnel if they were dissatisfied with judgements of the Armed Forces Tribunal, especially since other Union or State Government services, including the paramilitary and police forces, can continue to do so in similar circumstances?

Is this just another deliberate attempt, in a long series of such measures, to ensure that the military continues to eat the humble pie before the civilian bureaucracy?

 

(The writer is a  former military veteran and consultant with Observer Research Foundation)

 

ISLAMIC STATE COMES NEARER TO INDIAN SHORES

SOURCE:
http://www.msn.com/en-in/news/national/from-kerala-family-to-ex-gangster-is-pulls-maldives-men/ar-AAaXUSz


                       ISLAMIC STATE COMES NEARER

                                       TO

                           INDIAN SHORES
                                        By
                               Praveen Swami


                     

 From Kerala Family to Ex-Gangster, IS pulls Maldives Men

 

 

 

 

 

 

 

© Provided by Indian Express Shameem (red T-shirt) and Rahim (centre) at Male airport on their way to join Islamic State 

 

Late last year, Fathullah Jamil decided he’d had enough — of days that began before dawn, calling believers to prayer at the mosque; evenings spent negotiating a taxi through the sweltering streets; and nights spent in an airless one-room home. The children had moved to West Asia, and had been calling their parents to join them. Jamil sold the taxi, and caught a flight to Thiruvananthapuram to pick up his ailing Indian-born wife, Shah Bano.
 

Had intelligence officials in Kerala not intervened, the elderly couple would by now have been spending their retirement in the Islamic State — home to their three half-Indian, Thiruvananthapuram-educated sons, along with their wives and children.

The Maldives advertises its stunning island resorts as an earthly paradise, but intelligence services are increasingly concerned at the number of its citizens who are seeking the afterlife  { read  56  hoors in Jaahnaat } marketed by Islamists.

Indian and Western services estimate up to 200 Maldives citizens, out of a tiny population of 359,000, may now be in Iraq and Syria — the highest by far, in population-adjusted terms, of any country in the world.

The Maldives government says it can confirm 57 people have made the journey, while the Islamic State and its al-Qaeda affiliated rival, al-Nusra, have released at least seven obituaries for Maldivians killed in combat.

Death Threats, Attacks

Inside the Maldives, too, secular writers and activists are facing a growing tide of death threats —- sometimes backed up by lethal attacks.

Former jihadist-turned-secular writer Ahmed Rilwan, who disappeared last year, is thought to have been murdered by Islamist-linked street gangs. Hilath Rasheed, another writer and democratic rights activsts, lives in exile in Sri Lanka after his throat was slashed in a near-fatal attack.

“There’s a growing culture of violence against dissidents from the religious right-wing and the perpetrators are enjoying complete impunity,” said writer Yameen Rasheed.

Male’s powerful street gangs — in turn, linked to heroin cartels and protection rackets — are providing soldiers for the new Islamist army.

 Photographs obtained by The Indian Express show Rasheed’s alleged attacker, former gang member Ismail Rahim, travelling to Syria as part of a group organised by leading Islamist ideologue Adam Shameem. Like dozens of other former gang members, Rahim embraced neo-fundamentalist Islam in prison, seeing jihad as atonement for his past sins.

----------------------------------------------------

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Pakistan Link

Evidence also exists that Maldives’ jihadist networks are tied in with groups in Pakistan. Azlif Rauf, named as a suspect in the writer Rilwan’s disappearance, fled to Pakistan last year, where he is thought to be hiding out with contacts in the Tehreek-e-Taliban.

Through the city, as well as in some of the smaller islands, graffiti calling on young people to join the jihad in Syria is widespread — as are online Twitter handles and websites promoting the cause.

“This is the fastest-growing but least-understood security threat to the whole region. It’s just a matter of time before these people bring the killing home,” said former Maldives police intelligence chief Mohamed ‘MC’ Hameed.

For tourism-dependent Maldives, the prospect of attacks on Western tourists staying at isolated resorts scattered across the country’s more than 2,600 islands is a growing concern.

 

 

India’s Worry

Indian intelligence sources say they are also concerned at the prospect that Maldives could become a staging post for attacks against India.

In 2008, Maldives national Ali Assham — alleged to have been involved with the Lashkar-e-Taiba network attacked the Indian Institute of Science in Bangalore — was deported from Sri Lanka to Maldives. Despite Indian demands, he was never prosecuted, and now lives in Male. Assham did not respond to repeated phone calls seeking comment.

Part of the problem, Hameed said, is the state’s lack of capacity to successfully investigate and prosecute jihadists. Ali Jaleel, who in 2008 became the first Maldives citizen to conduct a suicide bombing, was briefly jailed two years earlier — only to emerge within weeks.

Former President Mohamed Nasheed, similarly, pardoned the alleged perpetrators of a 2009 bombing in Male — some of whom are now believed to be fighting in Syria.

 

 

Textbook Jihad

The state’s own textbooks, human rights activists in Maldives say, also contribute to the problem. The class IX Islamic studies textbook tells students
“performing jihad against people that obstruct the religion” is an obligation.
It promises that “Islam ruling over the world is very near”. Promising a caliphate, the textbook says “this is something that the Jews and Christians do not want. It is why they collaborate against Islam even now”.

 

From Fathullah Jameel’s telling of his children’s story, it is unclear precisely what led his children to the Islamic State. Educated as a cleric at the neo-fundamentalist Jamia Salafia in Pakistan’s Faisalabad — home also to the Lashkar’s Assham — Jameel chose a secular education for his children after they finished primary school in Male. The children moved to India with their mother, living and studying near Thiruvananthapuram.

“I know it is impossible to make a living from a mosque Imam’s wages in Male, and I wanted my children to have a better life,” said Jameel.

That’s not quite how it worked out, though: only the middle son, Aatifu Jameel, found a white-collar job, at immigration security. The oldest, Samihu Jameel, worked with a fishing crew. The youngest, Aataru Jameel, remained unemployed — part of the

25 per cent of Maldivians who do not have a job, even though the country employs over 100,000 migrant workers.

 

Syria Calling

In 2013, Samihu Jameel left for Syria —- among the first Maldivians to head there. Police officials familiar with the case say he was drawn to the jihad online, and then made contact with an Islamist charity that made arrangements.

“Frankly, I don’t know. He said he was going to study in Cairo with a religious charity. Then, he disappeared,” said Jameel.
Last summer, Samihu’s wife, Nooha, along with the two brothers and their wives, Najuma and Izawa, also travelled to the Islamic State.

They aren’t the only ones:

 couple Mohammad Zakman Adam Ismail and Marim Sanah are reported to have migrated to the Islamic State late last year.
In another recent case, Maldives government sources said, a young family who travelled to Syria lost their child to pneumonia in February.

 

 

 

Jameel speculates their decision may have, at least in part, been pragmatic.

“It’s hard for young people in Male. After they married, the three boys had to take turns sharing the bedroom.”