The aches and pains of India’s Armed Forces Tribunals

All is not well with India’s Armed Forces Tribunals (AFT).

Highly placed sources reveal that the Principal Bench at Delhi, as well as several Regional Benches across the country, are operating at a mere 25-30 per cent capacity owing to a shortage of members.

This problem, coupled with legal challenges to the functioning of the Tribunal, among other things, are proving to be spokes in the wheel of the Armed Forces Tribunal Act 2007, which aimed at ensuring speedy dispensation of justice to members of the country’s Armed Forces.

Tuesday saw the Bar of the AFT Chennai Region paying rich tributes to Administrative Member Lieutenant General K Surendranath, who is set to retire on December 2. Surendranath’s contribution to raising awareness of a speedy dispute redressal mechanism within the Armed Forces, his in-depth knowledge of the way the Forces function, and his involvement in the establishment of a Circuit Bench at Hyderabad were all lauded.

The already hamstrung bench has been functioning for only a few days in a month, and that too, courtesy visits by Justice Babu Matthew P Joseph, who is a Judicial Member and Chairperson of the Kochi Regional  Bench.

A bench of the Tribunal can only function if both a Judicial Member and an Administrative Member are present and sitting.

Lawyers who spoke with Bar & Bench agreed that the Tribunal disposes of cases more expeditiously, but that was only when they were working.

Advocate MK Sikdar, who is the Chief Editor of the Armed Forces Law Journal (AFLJ), and appears regularly before the AFT said,

“The whole idea of a Tribunal of this nature was to ensure speedy dispensation of justice to members of the armed forces. Matters that now come before the Tribunal used to take between five and ten years to be decided by High Courts prior to 2009. Now, orders are passed in as soon as six months from filing, provided the bench is functioning at full strength, and sadly this is seldom the case.”

Top Tribunal sources indicated that there are a slew of retirements in the offing in the next six to eight months, and if the government fails to grant extensions to retiring members and continues dragging its feet on appointments, things would come “to a grinding halt”.

The Chennai Bench is not the only one facing such challenges. One of three benches in Chandigarh is non-functional, while the Mumbai Bench is nothing more than a pretty four-storey building that costs the exchequer Rs. 40 lakh a month in rent alone, except for when visiting members are assigned.

The lack of members is just one of the hurdles that stands in the way of the Tribunals’ smooth functioning.

A petition was allowed by the Punjab and Haryana High Court in 2012, accepting contentions that the Tribunal ought not operate under the Ministry of Defence (MOD), but under the Ministry of Law instead. The rationale behind the petition was that the MOD was invariably the first party in cases before the Tribunal, and that this constituted a clear conflict of interest. That the Defense Secretary was part of the Committee to appoint members also found mention.

Sources at the Tribunal though rubbished the claim that their independence was in any way undermined, adding that members were appointed by the President of India and not the MOD. They pointed to the fact that in more than 90 per cent of cases, orders were passed against the Ministry.

This matter has been challenged by the MOD, and is currently pending before the Supreme Court.

New rules for the appointment of members across Tribunals in India brought in through the Finance Act in June 2017, have not gone down well in some quarters. While Judicial Members still have to hold the rank of a retired High Court judge, the rules for Administrative Members have been altered.

Whilst the old rules pertaining to AFT’s required them to be of the rank of a Major General or above, and afforded them the same powers and privileges as that of a High Court judge, the new rules permit those from outside the Armed Forces to apply for the said positions. Their stature is also diminished, putting them on par with  Secretaries of the Government of India.

These rules, which have been altered, apply to qualifications, appointments and removal of Chairpersons and Members of Tribunals. A slew of petitions challenging these rules have been filed before the Supreme Court, and the Attorney General has recently assured the bench that steps would be taken to bring them into consonance, with previous judgments. The matter will now come up for hearing on November 20.

The change in rules has ruffled some feathers inside AFT’s as well. A tribunal source speaking on condition of anonymity said,

“The Armed Forces are a completely different kettle of fish. The role of the Administrative Member is to supplement the Judicial Members’ knowledge of law, with his knowledge of the way administration of the forces work, gleaned over decades of experience. To bring in an appointment of a bureaucrat will result in chaos.”

Finally, there are some that feel that the AFT is sometimes a forum of first and last resort. Appeals lie only to the Supreme Court, and that too, provided the Tribunal grants leave to the party under Section 31 of the AFT Act.

Tribunal sources, however, said that this is not cause for concern, and if an additional tier of appeals exists, the whole purpose of speedy dispensation of justice would be defeated.

They also added that members more often than not tended to take a liberal view in exercise of their Original Jurisdiction over service matters, whilst taking a sterner view of things in exercise of their Criminal Appellate Jurisdiction, which was vital to maintain discipline within the Forces.

They also went onto say that appeals were seldom preferred by anyone other than the MOD, and that to allow the High Court’s appellate jurisdiction would do nothing but to line the pockets of some lawyers.

AFTs are relatively new institutions, with some benches having been set up as recently as 2015. Whether these issues and others are merely teething problems or more chronic in nature, only time will tell.