The Armed Forces Tribunal, for all practical purposes, is likely to be dead before the year-end. This means that military personnel unhappy at the manner in which they have been treated by the service have no way of getting justice

In an article titled ‘Disempowering the Soldier’, published in The Pioneer on November 30, 2018, this author attempted to highlight the precarious state of functioning of the Armed Forces Tribunal (AFT), thanks to deliberate inaction on the part of the Central Government. Since then, the situation has only taken a turn for the worse and has now reached a stage where the AFT, for all practical purposes, is likely to be dead before the year end.

To recapitulate, each of the 17 benches of the AFT across the country require at least one judicial and one administrative member, if it is to function and hear cases. However, as per the AFT website itself, there are a total of only three judicial members, including the chairperson, and five administrative members appointed as on date. This implies that only three Benches can actually function at present and with some members about to retire soon, it will be down to two functional Benches by October-end and none by December. Rest in Peace.

Well not quite, because what this horrific and wholly unjustified state of affairs has done is to impinge on the constitutional rights of the members of the military community, serving and retired, leaving them completely disempowered. This is because under our laws, the AFT is the only channel available to military personnel to seek justice in matters pertaining to “disputes and complaints with respect to commission, appointments, enrollments and conditions of service”, as well as “appeals arising out of orders, findings or sentences of courts- martial.”

If that were not enough, under Article 33 of the Constitution a two Judge Bench of the Supreme Court (SC) in its order of March 2018 has taken away the right of High Courts (HC) to hear writ petitions filed against the orders of the AFT. It has instead directly taken upon itself the burden of such litigation, which in plain speak, given that it only entertains appeals that concern “point of law of general public importance” involving the case, casts doubts on which appeals it will hear. Ironically, this was done to ensure that members of the armed forces receive speedy justice, something that most citizens can only crave.

So, in plain language, one is damned to perdition if one is a military man or woman, unhappy at the manner in which they have been treated by the Service, as all avenues to getting justice have been shut. While one can still approach the AFT and file a petition, but if the situation remains as it is, then given the pendency of cases, reportedly 16,000 at last count, the chances of the case being heard and resolved within a reasonable period of time are negligible, if at all.

Also, if one did get an adverse resolution, there is no other court in the land that one can approach, except for the highest, and that too with permission of the Tribunal. Whether the SC will be willing to hear the appeal remains a matter of conjecture given its policy on the issue. If all of this does not count as a serious miscarriage of justice and a violation of human rights, then what does?

Thus what our Government has been able to achieve is to ensure that people from the armed forces do not have the right to be heard, something which every murderer, rapist or for that matter even Pakistani terrorist, Ajmal Kasab, took for granted. Utterly shameful for a Government that supposedly lives and breathes nationalism.

What is most frustrating and reprehensible is that matters have come to this pass despite the SC thwarting all attempts by bureaucrats to subvert the independence and working of the AFT through the Finance Act, 2017. In fact, the AFT Bar Association filed a complaint with the SC in September 2016 for immediate filling of appointments of judicial members that was taken cognisance of and converted into a Public Interest Litigation (PIL).

In addition, there is another appeal pending in the SC on a petition that was allowed by the Punjab and Haryana HC in 2012, accepting contentions that the AFT ought not to operate under the defence ministry but under the law ministry. The rationale behind the petition was that this constituted a clear conflict of interest since the Defence Ministry was invariably the first party in cases before the tribunal, and in addition, the Defence Secretary was part of the committee to appoint members. When William Congreve wrote that “hell hath no fury like a woman scorned”, he hadn’t met the Indian Babu!

That the Government’s motives are clearly suspect as can be seen from the fact that, recently as August 13, 2019, the advertisement issued for appointment of administrative members is blatantly in contravention of SC directions. In a facile attempt at deception, it has published this advertisement only in Hindi, unlike its other advertisements which are in English.

Moreover, there are unconfirmed reports doing the rounds that names forwarded for judicial and administrative members by the selection committee, early this year, have been held in abeyance by the Prime Minister’s Office (PMO) because they refused to consider names of candidates who did not meet the criteria set by the SC. While the blame for the delay in appointing members clearly rests with the Government, the SC, too, held the last hearing on the PIL more than a year ago.

The military leadership is also not beyond reproach for not ensuring that an essential element of the military criminal justice system is not harmed. Its long-term repercussions on the morale of the forces are not difficult to envision. Finally, there is little doubt that egos are at play here and that is unacceptable.

Criminal negligence of this kind cannot and must not be condoned, and those responsible must be held to account. What could be more disgraceful than denying justice to members of the armed forces who willingly sacrifice everything for the nation?

This should not be a game of one-upmanship or a battle of wills and while the Government fiddles, lives, careers and futures are being destroyed on a daily basis. It also speaks ill of the state of our democracy and surely our military men deserve better? Will Prime Minister Modi or the SC please act before it is too late.

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