Defence establishment’s submissions to the SC in the military widow matter: The Hook or Crook Syndrome

Bar & Bench October 2 2019
Major DP singh

Major DP Singh

It is well known in military circles that treacherous terrain and nature’s fury pose a greater risk to the life and limb of our soldiers than the bullets of the adversary. While the latter involves a human element and is hence predictable to an extent, the former offers no warnings and knows no rules.

It is this well-founded supposition that has been turned to dust by overeager, overexcited, athirst elements of the defence establishment who have attempted to fallaciously prove in the highest Court of India that it is only deaths by bullets in live enemy action that entitle military widows to “liberalized family pension”, a higher form of pension that is paid for casualties in operational areas.

I myself was disabled in war and am fully aware of the dangers of live action as well as the vagaries of weather, but it was relatively recently, after getting exposed to court battles, that I realised how at times we can be consumed by our own.

On September 23, the Supreme Court of India decided a case against the wife of a late officer who died of cardiac arrest in his room when he was posted in field area under ‘Operation Rakshak’. She was claiming “Liberalized Family Pension” which is authorized to widows of defence personnel whose deaths are declared ‘battle casualty’ or which occur in notified operational areas.

There would have been absolutely no problem with benefits being opposed on the peculiar facts and circumstances of the case, or, hypothetically, on the ground that the death occurred in his room and not in the actual performance of duties in the operational area. However, what is revealed from the submissions of the defence establishment in the Court is an extreme case of jugglery, insensitivity, factual inaccuracies and a stand which goes against the very own rules and regulations of the Government and the Army.

The stand presented in Court

It seems that the concerned officers informed the counsel appearing for the government, who further apprised the Court that “Liberalized Family Pension is associated exclusively with pension granted in respect of death or injury caused in live-action”.

This stand was based upon the letter of the Ministry of Defence dated 24-02-1972 put forth to the Court, in which it was emphasized, “was issued for the purpose of acknowledging the sacrifice of persons who were killed in live-action.”

Based upon the said inputs and submissions, the Court held that “Category E” of the letter dated 31-01-2001 which provided liberalized benefits to deaths and disabilities arising in notified operational areas, was only available to deaths in live-action, as was clearly mentioned in the 1972 letter.

The reality of policy

The reality, however, makes this episode extremely painful. The truth is that the concept of Liberalized Family Pension (on death) and War Injury Pension (on disability) in operational areas has been expanded over the years, and rightly so, keeping in view the changing dynamics of warfare and operations.

Much water has flown since 1972 and multiple categories now stand added to the list. In fact, pensionary awards for casualties in peace areas vis-a-vis field areas used to be separate with the latter getting a heavier amount since 1940, when Regulation 357 of the Pension Regulations, 1940, made this distinction. Even at that point in time, there was no requirement of ‘live-action’.

Thereafter, the Army started the system of declaration of ‘battle casualty’ for disabilities and deaths in operations. The first comprehensive instructions in this regard were in the form of the Special Army Order 8/S/1952, which introduced the requirement of direct action to be declared a ‘battle casualty’. Another Army Order was later issued on similar lines. Pensionary benefits continued to be regulated as per instructions of the government, while the declaration of ‘battle casualty’ was under the military’s domain.

On 24-02-1972, the letter recognized only action in proper wars and war-like hostilities for grant of liberalized pensionary benefits. Immediately thereafter, however, many new categories were added such as disability and death due to explosion of mines etc (not just restricted to wars).

In the year 1985, a comprehensive Special Army Order 8/S/1985 was issued which now took under its ambit deaths and disabilities due to accidental injuries by booby traps or barbed wires or obstacles in operational areas, deaths in natural calamities such as floods & landslides, drowning in rivers in operational areas etc.

The declaration of ‘battle casualty’ by the Army did help in spheres such as special grants, reservations, privileges in cadre management etc. However, it did not always result in higher pension since as per the Defence Accounts Department, it did not find a place in the Defence Ministry’s pensionary instructions till then.

In 1987, however, a landmark decision was appreciably taken by the Ministry, wherein, by way of its letter dated 30-10-1987, it agreed to grant liberalized pensionary awards to all cases declared ‘battle casualty’ by the Army, thereby ending the regime of the admissibility only in live enemy action.

In the year 1991, natural illnesses with respect to troops operating on the Line of Control and International Borders were also included in the ‘battle casualty’ list for financial purposes (though these remained physical casualties for statistical purposes).

On 31-01-2001, another letter was issued by the Ministry after the Fifth Central Pay Commission, further liberalizing the benefits and in which “Categories D and E” were added for liberalized awards. “Category D” included mob violence, death and disability in earthquake and flood relief etc. “Category E” included death and disabilities in wars, warlike situations, mine-related injuries, and also death and disability in notified operations, which the official representatives successfully urged the Supreme Court to believe were connected with the letter of 1972 (live enemy action), though this had no nexus whatsoever with the said letter.

In fact, what has not been pointed out is that there was a note under “Category E” which states that the examples provided were only illustrative and not exhaustive and all other causalities shall continue to be regulated as per existing rules. Further, if the requirement of ‘live enemy action’ was to be hypothetically accepted, then there was no need to mention different kinds of situations in Categories D and E, including earthquake and flood relief.

Surely, a person performing such duties cannot be disabled or killed by bullets in live enemy action, unless it was the intention to suggest to the Court that the widow of a soldier who is killed due to a cardiac arrest during flood relief was entitled, but the widow of the same person, if killed due to the same reason while patrolling the Line of Control in treacherous terrain and weather was not entitled!

The matter was not to end here. By way of Army Order 01/2003, more categories were added to the list of ‘battle casualty’ including deaths and disabilities during aid to civil authorities, while performing operational movements and deaths due to electrocution, poisoning and snake-bite in operational areas. As recently as in April 2013, it was clarified that disabilities and deaths while troops were resting when on patrol or while returning to the barracks or due to slipping or falling while patrolling were also to be treated as battle casualties. In any case, there is a separate category of Battle Casualty (War Wounded) [BC(WW)] who are given certain additional privileges over and above other battle casualties.

It, therefore, breaks one’s heart that an outdated letter issued in 1972, after the Indo-Pak War, was cited to the Court without making a mention of all developments thereafter. Again, to reiterate, it may not be of consequence whether the wife of the officer who was litigating, qualified for relief or otherwise, or whether it fell within the four corners of policy or not, since the facts are not fully known to this author. But what matters is that the reality of policy changes and the changing dynamics of the concept of ‘battle casualty’ were hidden from the Court.

Reference to the Committee of Experts

In the judgment, there is also a mention that the recommendations made by the Raksha Mantri’s Committee of Experts (of which this author was also a member) on granting liberalized benefits to deaths due to weather conditions were ‘not accepted’. This is bewildering.

Firstly, there was no recommendation made in this regard and the observation was in the context of asking the Defence Accounts Department to follow existing rules which already provide benefits for deaths and disabilities falling under various orders and policies.

Secondly, the recommendation of the Committee to extend Liberalized Awards to the cases of death and disability on the Line of Actual Control (with China) at par with Line of Control (with Pakistan) was accepted.

Thirdly, rest of the matters were ‘under consideration’ to the best of my knowledge. It seems, prima facie, that the Raksha Mantri may not even have been informed before making this statement in Court about his own Committee of Experts.

Over-enthusiasm in resistance of claims

A very disquieting phenomenon evident in officers of the uniformed forces dealing with litigation is their glee and merriment on “winning” cases against old pensioners, disabled soldiers and widows. They go out of their way to prove the other side wrong, and the other side is almost in each case weak because of lack of access to justice, material and policies, most of which are not even in public domain.

On scoring such wins, which are financially not even a speck in the overall scheme of things, and such litigation being more expensive to the taxpayer than the relief itself, some officers derive a strange form of sadistic pleasure which is at total variance with the attitude of representatives of civil departments whose attempt is to dispassionately assist the court rather than displaying a bizarre desperation to win in any manner. Litigation, in this sense, becomes a prestige issue and not a facet of justice.

Dilution of the Army’s stand

The Army has been fighting hard with the Defence Accounts Department since the late 2000s to notify liberalised awards in many such cases where the death occurred due to reasons other than proper enemy action. While many such eligible cases were granted admissible pension, many were held back. However, by making such submissions in Court, and the consequent judgment due to the same, the stand of the Army stands defeated on this subject.

With the professed linkage of “live enemy action” with liberalized awards, what will happen to the following, who were till now fully eligible and entitled for the same:

  • What happens now to the benefits of a widow of a soldier dying of frostbite while operating in the highest battlefield of the world, the Siachen Glacier, which was squarely covered by the policy? How will she prove ‘live enemy action’?
  • What happens to the family of a soldier who dies in an avalanche while in an operational area on the border or due to lack of oxygen? Where is the ‘live enemy action’?
  • What happens to the widow whose husband died due to cardiac arrest due to treacherous weather while patrolling the Line of Control or who died due to respiratory failure while resisting a face-off with Chinese troops in the North East?
  • What happens to the widow whose husband died when his vehicle fell down a gorge during an operational or reconnaissance move in a counter-insurgency operational area?
  • What happens to the widow of a soldier who fell down a hill while on a Road Opening Party in a Counter Insurgency Operation?

The examples are many, and all have a tough and uphill battle ahead, and ironically so does the Army. In fact, thousands of such cases have been released their benefits without any impediment in the past. Is it the stand of certain officers that they were wrongly released liberalised benefits till now?

The defence establishment is known since long to make questionable statements in courts. My good friend, Major Navdeep Singh, Advocate in the Punjab & Haryana High Court, has been highlighting this since long (See: The Defence Ministry’s approach to litigation: Misdirected, Highly Adversarial and Sadistic, Part I and Part II)

He has, to a great extent, brought overall positivity and a huge change in the heretofore self-defeating attitude of the military in dealing with such issues, but in this incident, the red line has been crossed once again and it seems that military veterans and senior officers themselves need to keep an eternal vigil against such actions emanating from elements in their own establishment.

The current Raksha Mantri, Mr Rajnath Singh, is known to be sensitive towards the needs of the serving and retired personnel of the defence forces and their families, but such actions can bring all our efforts to naught if corrective measures are not taken and personal responsibility not fixed.

Having undergone litigation myself for grant of correct pensionary benefits and having faced the same travails, I truly feel the agony of those affected by this mischief. All I can say to them is that they should not lose hope. We stand with you and I am sure even the political leadership would stand with you and we will not let your legally entitled benefits wither away.

To those in the official establishment who deal with such issues, you may perceive yourself to be victorious by such deeds, but stand back and reflect. You did not win here, you badly lost.

Jai Hind.

Major DP Singh is a Kargil War Veteran. A war disabled officer and a national awardee, he is India’s first blade runner. He passionately deals with issues related to military veterans, disabled soldiers and military widows. He was also a Member of the Committee of Experts constituted by the Government for reducing litigation initiated by the Ministry of Defence against its employees and retirees.