Sunday, April 19, 2015

Remove legal unfairness, demand ex-servicemen

Remove legal unfairness, demand ex-servicemen: Article by Moneylife.in

Ex-servicemen demand right to appeal to High Courts as fundamental right exercised by other citizens, against an order of SC making Armed Forces Tribunal the first and last forum for them

The Indian Ex-Servicemen Movement (IESM), which is Federation of Military Veterans' Movement, has requested Prime Minister Narendra Modi to abrogate Sections 30 and 31 of the Armed Forces Tribunal (AFT) Act. Abrogation of these sections will help challenge orders of the AFT on the lines of the Central Administrative Tribunal (CAT) and make justice accessible and practical for defence personnel, ex-servicemen, widows and their families, IESM said.

The letter sent by IESM refers to a decision on 11 March 2015 by the Supreme Court, which effectively ensures that the AFT becomes the first and the last forum for litigants, including defence personnel, veterans and their families.

In a letter, IESM, said, "The judgement was passed on an appeal filed by the Ministry of Defence (MoD) and perhaps also the Army Head Quarter (HQ) during the time of the last Government. We also 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 by the MoD/Army, 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 SC that the military community does not deserve the enjoyment of fundamental rights like others. It is a well known fact that Article 33 only operates during performance of duties to maintain discipline and has no connection with right to access of justice," the letter says. 

It is also well known that the majority of cases in the AFT pertain to retired personnel, military widows and their families and hence Article 33 even otherwise has no applicability. This is also against the spirit of Article 39A of the Constitution, which underlines equal justice for all citizens, IESM said.

According to the letter, there was an attempt to convince military community that the decision will lead to ‘quicker’ justice to defence personnel. However, it says, on closer and deeper examination of the issue, the following real facts and fallouts emerge:
  1. There is actually no right of appeal to the Supreme Court from AFT orders as per the AFT Act since an appeal only lies in exceptional cases involving ‘point of law of general public importance’ vide Section 31 of AFT Act. Hence what has been pleaded before the SC is that AFT should become the court of first instance as well as the court of last instance, leaving defence personnel, veterans and widows remediless since it is well known that 99.9% of cases can never involve ‘public importance’ questions. The decision will not lead to ‘quicker’ justice but in reality remove all chances and channels of challenge/appeal against AFT decisions. Can this bogey of ‘quicker’ justice be raised at the price of fundamental rights of accessible justice and remedy to citizens? 
  2. It is well known that almost all such litigants cannot afford litigation in SC due to its prohibitive cost and the aura itself of being the highest court of the country. 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. 
  3. Defence personnel, veterans, widows and families have been deprived of their basic right of access to justice due to the plea raised by the MoD/Army wherein while all citizens of the country would have access to multiple tiers of justice, not even one tier would be available to us. Even civil government employees aggrieved by orders of Central Administrative Tribunal (CAT) can approach the HC if they are dissatisfied and then further the SC, whereas similar access has been denied to us and after an order of the AFT even the SC cannot be approached as a matter of vested right unless there is involvement of a point of general public importance. 
  4. We hereby express our dismay on the attempt of the official system to convey to the SC that fundamental rights of the military community should be restricted or abrogated. We are disappointed that the system itself by raising the plea of Article 33 is attempting to prove that defence personnel, ex-servicemen and their families are lower than the ordinary person on the street. This will have disastrous consequences in the years to come. If the MoD/Army makes such averments pleading for taking away the fundamental rights of their own members and former members and their families, then it is extremely unfortunate.
  5. It is well known that the AFT functions under the control of the MoD and even Members of AFT are appointed by the MoD and selected by a selection committee, which has the Defence Secretary as its member. AFT has also not been given civil contempt powers to ensure compliance of its orders. In other words, an ineffectual body has been created which functions under the MoD and then now on the plea of the MoD it has been assured that there is no effective appeal making it an all supreme body.
Maj Gen Satbir Singh (Retd), Chairman of IESM says, "We express dissatisfaction at the stand and damaging stance of the MoD and the Army in the said case, which has led to such a situation. We request the PM to kindly abrogate Sections 30 and 31 of the AFT Act so that AFT orders can be challenged on the lines of the CAT thereby making justice accessible and practical for defence personnel, ex-servicemen, widows and their families. 

Tamil Nadu-based Welfare Service of Ex-Servicemen/Families and Others, also supported the demand made by IESM. "We fully support the ex-servicemen associations from Punjab and Chandigarh. We request you to kindly initiate steps to abrogate and repeal Sections 30 and 31 of the AFT Act in order to make justice accessible to defence personnel on the lines of CAT so that aggrieved parties are able to approach the High Courts, which are independent court unlike the Tribunals, which operate under the control of Ministry of Defence and which do not inspire the confidence of litigants, " the letter sent by the association to PM Modi says.

Read at Moneylife

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