Lack of vested right to effective judicial review from orders
of the Armed Forces Tributnal (AFT):
IESM letter to PM/RM/LAW
MINISTER/COAS/CNS/CAS
Dated: 11 April 2015
Shri Narendra Modi
Hon’ble Prime Minister of India
Prime Minister’s Office (PMO)
New Delhi – 110 001
Shri Manohar Parrikar
Hon’ble Raksha Mantri
104, South Block,
New Delhi
Shri. D.V. Sadananda Gowda
Hon’ble Minister for Law & Justice
Room No. 401, A Wing,
4th Floor, Shastri Bhavan,
New Delhi – 110001
LACK OF VESTED RIGHT OF EFFECTIVE JUDICIAL REVIEW FROM ORDERS OF THE ARMED FORCES TRIBUNAL (AFT)
The Hon’ble Supreme Court on 11 March 2015 pronounced a decision in a
case wherein it was held that orders passed by the Armed Forces
Tribunal (AFT) would not be challenged by litigants in Hon’ble High
Courts but only in the Supreme Court. The judgement was passed on an
appeal filed by the Ministry of Defence (and perhaps also the Army 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 Hon’ble 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. 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.
While in the beginning, there was an attempt to convince us that the
decision will lead to ‘quicker’ justice to defence personnel, 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 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 govt 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.
In light of the above, while expressing 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 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.
With regards,
Maj Gen Satbir Singh, SM (Retd)
Chairman IESM
Source: http://ex-servicemenwelfare.blogspot.in/2015/04/iesm-letter-to-pmrmlaw.html