Armed Forces Tribunal

(Amendment) Bill, 2012

Maj Gen Nilendra KumarDirector

Amity Law School, Noida and

former Judge Advocate General (Army)

Based on a presentation before the Parliamentary Standing Committee on Defence on 18th December 2012 and subsequent analysis.

Views of experts and stakeholders should be considered and given due weight prior to deciding any change in the statutory law.

The Bill seeks to make two changes

to the Armed Forces Tribunal Act,

2007.

The two changes have been

discussed in this presentation in

the shape of two issues.

ISSUE No. 1

The Bill has proposed two changes

in the AFT Act, 2007.

Amendmentto

Section 8

Section 8 concerns

term of office of

Chairperson or Member

The proposal is to increase

(a) the age of retirement of chairperson from 65to 67 years if he is a Chief Justice of a High Court.

(b) the age of retirement of Judicial Member from 65 to 67 years.

Judicial Members are retired High

Court Judges.

Administrative Members are Maj

Gen/equivalent or above who have

held the rank for three years or

more, or a Judge Advocate

General who has held the post for

at least one year.

Secondly the term of office increased from four to five years.

COMMENTS

Earlier the members were eligible

For re-appointment but not so

under the proposed Bill.

Hence, the Bill seeks to do away

with the policy to allow re-

appointment for another term to

those who may be so eligible.

The moot issue is what’s the need?

Is there adequate justification for

the change?

COMMENTS

The proposed amendment

providing for extension of tenure

from four to five years would :

a) Bring in complacency in the

members giving them security of tenure. Irrespective of their performance they would be allowed to serve for a longer duration.

1. Records and data about the

actual performance calls for a critical study.

Disposal Rate of decided needs to be examined.2. Number of cases decided (in a month or year).3. Quality of judgments. How many orders were later stayed by the Supreme Court or allowed in appeal by High Courts or reversed.

4. Adjournments allowed. That

would reflect the time taken or speed of disposal of cases.

b) The amendment sought may be repugnant to the continued zest for efficiency.

Yet another drawback is that an impression may be formed that having once taken over as a member no further re-appointment is allowed. So where is the need to perform?

c) The change proposed would make it impermissible even for those who are appointed a member at a relatively young age by disqualifying them to continue as such by re- appointment.

Another significant change

now proposed in the Bill is to

introduce different ages of

retirement for judicial and

administrative members.

Why different ages for retirement for judicial and administrative members?

Military personnel are expected to

be generally in better health. Also

they are physically and mentally

agile. Why the Tribunal be

deprived of their experience and

caliber?

Hence, there is little logic in retiring

them early.

Also, why such a hurry to change

the existing law?

Too short a period has elapsed to undertake such a major change.

AFT started functioning in 2009.

Now the proposed Bill implies that

the law is proposed to be changed

in three years.

Hence, the amendment at issue No 1 to section 10 of the AFT Act does not appear to be justified.

However, a question arises as to

how to manage deficiencies and

vacant posts?

The process of advertisement and

notice calling for members needs to

be efficiently managed.

Suggestion

1. Better management by way of prompt identification, notification and selection of members.

2. The benches of AFT are at the

same location as High Court.

Hence, motivate attract and

invite/encourage serving Judges

to apply early towards the end

of their service.

Approach the retiring Judges

of the High Courts well in time

to attract them to apply for

membership of the Tribunal.

Issue No 2

Amendment to Section 19

The proposed amendment envisages the provisions of the Contempt of Court Act, 1997 to have effect in the case of the AFT as regards jurisdiction, powers and authority.

But the proposed amendment is silent with regard to

(a) Definition of contempt(b) Exceptions or defences available to one who is sought to be proceeded against (Sections 3 to 7)

(c) Appeals (section 19)

(d) Power to make Rules (Section 23)

What is meant by contempt?

Ingradients or elements of the

crime should be clear and well

defined.

Would there be any valid defences

available to the one charged with

contempt? If so, what?

Would one found guilty and

convicted get any right to appeal.

If so, when, how and to whom?

The existing section concerning

Rule making power does not cover

such an aspect.

Such substantial issues cannot be covered by implication.

As such, amendment to Section 19 also warrants a re-look.

This opportunity could be taken to

discuss some other areas where a

re-look at the AFT Act appears

warranted.

Other major issues that need to be covered.

Point No. 1

Power of Chairperson under Section 27 calls for a review by way of clear enunciation.

The power relates to transfer of cases from one bench to another.

Power on a judicial matter should not be provided to be exercised in an administrative manner.

This power to transfer matters from one bench to another should be invested in a bench of minimum three members.

Chairperson should not be allowed to exercise such a power “on his own motion or without notice”.

Point No. 2

Sections 30 and 31concern Appeal and Leave to Appeal

The decision of the Supreme Court on Union of India V Brigadier PS Gill, (2012) 4 SCC 463 has shown a major need for a discussion.

Only mode to file an appeal under the Act to the Supreme Court is either by way of certificate obtained from the AFT or by leave obtained from the Supreme Court under section 31.

Scheme of Section 31 provides that an application for grant of certificate from the AFT, before approaching the Supreme Court for grant of leave to file an appeal.

Thus the provision to a statutory appeal is really not present.

Hence, need for suitable amendment.

Point No. 2

Delhi High Court decision dated 26th April 2011 in the case of Colonel AD Nargolkar V Union of India.

(2011) ILR 4 Delhi 114, 179 (2011) DLT 447

Decision by

Justice Pradeep Nandrajog

Decisions by the Armed Forces Tribunal would be amenable to judicial review by High Court under Article 226 as also under Article 227 of the Constitution of India.

Another major deficiency in the

AFT Act.

Point No. 3

Deletion of the exclusionary clause in section 2(0) which deprives a suitable remedy to the cases of those aggrieved by way of action under Presidential pleasure doctrine, transfers, postings, leave denial and Summary Court Martial verdicts of less than dismissal.

Point No. 4

A PIL filed before the Punjab and

Haryana High Court has highlighted

non-compliance by the Union

Government on the orders of the

Tribunal in about 3000 cases.

It was alleged that the MoD has

refused to implement the orders of

the Tribunal even upheld by the

Supreme Court.

On 12 December 2013, the High

Court has issued notice to the

Union Government.

Point No. 5

The Tribunal transacts its

proceedings in English. Such a

practice keeps its deliberations

beyond majority of the litigants who

belong to the non-officers category

and are not conversant with the

language.

Point No. 6

Officers who have held the post

of the JAG for minimum one year

should be eligible to serve as

Judicial Member and not

Administrative Member as is the

current position.

Point No. 7

Absence of a Code of Conduct for

the Chairperson and members.

The same is needed to avoid bias,

prejudice and conflict of interest.

The members particularly

Administrative Members not

having held judicial posts are not

familiar with restraints and

prohibitions expected in a Judge.

Therefore, a piecemeal review of the AFT Act ignoring substantial aspects warranting detailed scrutiny may be avoided.

Recommendation

A complete and wholesome view should be taken of the AFT Act.

CONCLUSION

An effective tribunal composed of competent members adhering to fair procedures and armed with requisite powers with alone inspire confidence amongst the litigants.