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ADJUDICATION OF SERVICE DISPUTES RELATING TO
DEFENCE IN INDIA
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Presentation by
Maj. Gen. Nilendra KumarDirector
Amity Law School, Noidaat
IIPA, New Delhi
on 6 September 2012
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SERVICE DISPUTE
The term ‘service dispute’ has no
statutory definition.
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However, this has been taken for the purpose
of this presentation, to refer to all disputes,
whether related individually, jointly or by the
Service itself against a service or the Union
Government.
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In a democratic republic, disputes are meant
to be settled by a dialogue; and failing which,
in accordance with following rule of law
concept in a legal manner.
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CONTOURS
1. Nature of disputes
2. Causes of disputes
3. Number of disputes and size of problem
4. Framework and resources for settlement
5. Appraisal of the system
6. Recommendations
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CATEGORY OF DISPUTES
1. Individual or personal
2. Non military individuals V the State
3. Group (e.g. Major Dhanapalan’s case or Maj. Gen. pension matter) V the State
4. Corporate
5. State V Union of India e.g. AFSPA
6. PIL
7. Foreign Corporates
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The Union of India could be the target of
the dispute i.e. as a respondent; or in
some cases could be the initiator of the
legal dispute.
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NATURE OF DISPUTES COULD RELATE TO
1. Service conditions
2. Disciplinary awards
3. Procurement processes
4. Land matters
5. Human Rights violations
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SERVICE CONDITIONS MAINLY RELATE TO
Promotion ACR Seniority Adverse Remarks Posting or tenures Change of Arms/Service Courses Retirement/resignation/release Accommodation Pay and allowances Leave
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CAUSES
1. Old and antiquated laws
2. Nature of service where decisions often do not exhibit application of mind
3. Lack of flexibility amongst the decision matters
4. Frequent and arbitrary changes in policy
5. Lack of awareness of military ethos on the part of judges & lawyers
6. Corruption
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NATURE OF SERVICE
1. Demand for implicit obedience
2. Liability to serve anywhere on land, sea and air
3. Pyramidical structure showing limited scope for career progression
4. Primacy to arms & fliers
5. Early separation by way of retirement
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CPCSECTION 80
Notice
No suit shall be instituted against the
Government or against a public officer in
respect of any act purporting to be done by
such public officer in his official capacity until
the expiration of two months next after
notice in writing has been delivered to or left
at the office of a Secretary to that Government
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EXAMPLE OF OLD AND ANTIQUATED LAWS
1. Explosives Act, 1884
2. Indian Tolls (Army and Air Force) Act, 1901
3. Works of Defence Act, 1903
4. Explosive Substances Act, 1908
5. Official Secrets Act, 1923
6. Manoeuvres, Field Firing and Artillery Practice Act, 1938
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These laws have not changed over the decades
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Army Act, 1950, Army Rules, 1952
and DSR (RA), 1987 have also remained
unchanged over the decades
Despite five years having elapsed after
enactment of the Armed Forces Tribunal
Act, 2007, it finds no mention in the Army
Act and Army Rules.
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REGULATIONS FOR THE ARMY (DSR), 1987
Silent on
1. Right to Information
2. Induction of Women Officers
3. Information Technology
4. Human Rights
5. War against terror or AFSPA
6. Tri Service Commands
7. Environmental Protection
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Thus the laws are not in tune with times,
and may be said to be outdated
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Further, last two decade has seen involvement of senior officers, incidents of moral turpitude and sharp erosion in ethical standards.
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There have been prosecutions for staging
fake encounters and attempts to procure
gallantry awards undeservedly.
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Allegations about misuse of secret
funds of military intelligence.
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ERA OF SCAMS IN LAST TWO DECADES
1. Adarsh
2. Sukna land
3. Pune land matter involving the then Army Commander
4. Bungalow grab in Lucknow cantonment by an Army Commander
5. Tehelka
6. Procurement of rations (meat, dals & eggs etc.) leading to conviction of a Lt. General
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The list appears to be endless
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SCAMS GALORE
1. Divisional Commander in sexual harassment case
2. Procurement for peace keepers
3. Tent scam
4. Booz Brigadier
5. Ketchup Colonel
6. Sale of non service pattern of weapons
7. Sex for food
8. NDA job scam
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Yet another matter that had continued to
occupy centre space for months
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CHANGE IN DATE OF BIRTH CONTROVERSY
1. Politicisation, MPs met the PM
2. Repeated representations
3. Keeping the decision to move Court secret
4. Abortive attempt to progress a PIL
5. AFT and High Court by passed
6. Supreme Court moved straightaway
7. Decision to withdraw and yet expression of dissatisfaction at Court decision
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A clear example of unresolved dispute
between MS Branch and AG’s Branch on
one hand; and between Army HQ and MoD
on the other.
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Further, rank and file appear to have
been left confused (and amazed)!
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ORGANISATIONAL BIAS OR CLASS ACTION
1. Technical officers of Air Force
2. Grievances of Military Nursing
Service Officers
3. Non grant of permanent
Commission to women officers
4. Agitation against officers by
other ranks in Northern
Command & Samba
5. Class action litigation against
continuation of AFSPA in J&K
and North East
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ADR MODES
1. Arbitration
2. Mediation
3. Reconciliation
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Alternative Dispute Resolution (ADR)
process ignored.
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Government is the largest litigator
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Thus every dispute finally ends into a
litigation
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Agreements and contracts are invariably
one sided
Reflective of rigidity and arbitrariness
attitude of decision makers
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WEAKNESS IN STATE CASE
1. Contracts are not drafted with care
2. Abnormal delays in formulating and filing of responses
3. Change of officials and at times of arbitrators
4. Careless and indifferent defence of cases when matters reach courts of law
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EXISTING PRACTICE
Responsibility
1. Legal Cells - Set up at the seat of
major High Courts or at the location of AFT
benches
2. Station HQ
3. NCC Unit
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RESOURCES
IX Officer
IX Clerk
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REMARKS1. Legal Cell function mostly under the
Static HQ
2. Where higher field formations co-exist Legal Cells operate under static HQ e.g. at Allahabad or Secunderabad.
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3. Very often MS (Legal) or DV representatives approach Legal Cells directly and JAG Department is not in picture
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There is no authentic data about total
number of pending cases relating to
MOD
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DIFFERENT RESPONSIBILITIES OF BRANCHES
GS - Training, Courses, AFSPA AG - Disciplinary cases, pay &
allowances MS - Officer cadre QMG’s - Accommodation, ration, travel
and canteens E in C - Rent & allied charges Medical - Disability, medical boards ST - Supply contracts
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FORUMS WHERE LITIGATION TAKES PLACE
1. Courts Martial
2. Judiciary
3. Tribunals (AFT and CAT)
4. RTI
5. NHRC
6. Arbitrations
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Consequently no data or study available
about :
Trend of increase or decrease Trend about outcome of cases What type of cases are increasing Which Government counsel wins/loses Reasons leading to adverse decisions
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No branch would have the data about
total pendency of court cases
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Applicable Constitutional and legal regime
are designed to best protect military
disputes settlement mechanism.
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CONSTITUTION OF INDIA
Article 33
Power of Parliament to modify the
rights conferred by this Part in their
application etc.
Parliament may, by law, determine to
what extent any of the rights conferred
by this Part shall, in their application to:-
(a)the members of the Armed Forces; or
(b) xxxx
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(c) xxxx
(d) xxxx
be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
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Thus restrictions on fundamental rights
constitutionally are permissible.
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RESTRICTIONS IN THE ROLE OF HIGHER JUDICIARY
Article 136
Special leave to appeal by the Supreme Court
1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
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2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
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POWERS OF HIGH COURTS
Article 227 (4)
Power of Superintendence over all courts by
the High Court
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) xx
(3) xx
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(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
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PROVISIONS ON
SECURITY OF TENURE
OF
MILITARY PERSONNEL
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Article 311
Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State
(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed
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A step to cut down Military cases being
taken to High Courts
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Setting up of Armed Forces Tribunal
The Armed Forces Tribunal Act, 2007
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However, the move itself had certain deficiencies right at the stage of inception.
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RESTRICTED JURISDICTION OF AFT
1. Transfer postings
2. Leave
3. Summary Courts Martial and Summary Trial
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The appraisal so far is suggestive of
negligible gains
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WHY AFT IS NOT ABLE TO FULLY MEET MILITARY ASPIRATIONS
1. Lack of infrastructure
2. Shortages in members and staff
3. Want of authority to enforce (contempt powers)
4. Poor quality of judgments
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Another major development
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DELHI HIGH COURT
Justice Pradeep Nandrajog’s decision
dated 26 April 2011
in
Colonel A.D. Nargolkar’s case
Writ Petition No. 13367/2009
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GIST OF ORDER
1. AFT cannot be said to be truly a judicial review forum
as a substitute to High Courts.
2. The power of judicial review under Articles 226 and
227 is unaffected by the constitution of AFT.
3. Article 227 (4) takes away only the administrative
supervisory jurisdiction of High Court over judicial
supervisory jurisdiction over AFT.
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4. Decisions by the AFT would be amenable
to judicial review by High Court under Articles 226 as also under 227 of the Constitution.
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MEDIA PERCEPTION
Poor media image about credibility and
effectiveness of in-house tribunals and forums
of the military
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Absence of a single agency with requisite
reference resources, library, seniority and
Accountability is a critical deficiency.
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COMPARTMENTALISATION OF JAG RESOURCES BY HAVING SEPARATE
OFFICES
1. Judge Advocate General’s Department
2. Military Secretary Legal
3. Disciplinary and Vigilance
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DEFENCE OF COURT CASES
APPLICABLE POLICY
SPECIAL ARMY ORDER
5/S/2003/JAG
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No rules, regulations or instructions
formulated so far to introduce a system to
deal with cases filed in Armed Forces
Tribunal or with RTI or other tribunals.
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No efforts made to re-visit the applicable
policy after 2003.
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Lack of familiarity of Legal Advisor (Defence)
about military matters
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RECOMMENDATIONS
1. Defence of court cases should be a command function rather than a duty for the staff
2. Thorough overhaul of laws
3. Framing of a Uniform Code of Military Justice to achieve uniformity of Rules
4. Integration of JAG Resources of three services for better management of litigation
5. Augmentation of JAG Department to create better manpower to deal with court cases
6. Creation of a separate pool of lawyers for military
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As a matter of policy all laws, Acts, rules,
regulations, instructions and orders
should be brought for review at regular
Intervals.
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CONCLUSION
An inadequate and ineffective
machinery for settlement of service
disputes would shake and erode
confidence in military leadership. It
would also be wasteful in time and
resources.
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Any Questions