From the War Room to the Bench: Lt. Gen. K Surendranath, former AFT member

Bar & Bench December 27 2018

Varun Chirumamilla

In this interview, Lieutenant General K Surendranath, former administrative member of the Armed Forces Tribunal (AFT), sheds light on why it is important to have a man from the services on the bench, the challenges faced by AFT benches across the country, and more.

You are essentially a soldier who served in the Mechanized Infantry. When does an officer first get acquainted with aspects of the law and why?

Legal training begins even before one is commissioned as an officer. You are required to acquaint yourself with the law whilst still a cadet. Even a junior officer has limited summary power to deal with offences under Army Act, and therefore, he must have more than a passing acquaintance with the law.

What areas of law do you need to be well-versed with while holding a junior command?

Initially, one must be well versed with the Army Act, Army Rules, the Indian Penal Code, The Code of Criminal Procedure, the Indian Evidence Act, as well as Defence Services Regulations for the Army.

You eventually served as an Army Commander. Could you explain the areas of law you had to familiarize yourself with as you rose through the ranks?

An officer’s engagement with the law is a continuous process. Knowledge of the law and the ability to interpret statutes are tested every time you are due for a promotion. As you rise through the ranks, knowledge of Constitutional Law, Administrative and Service Regulations also becomes necessary. Administrative and legal issues are an important component of the functions of senior leadership. You also sit on promotion boards; hence there is a need to have a holistic understanding of the legal framework in which we operate.

There is some criticism that powers to summarily punish someone are in contravention to principles of natural justice. What is your view?

Soldierly conduct, obedience to orders, and individual and collective discipline are fundamental to the Armed Forces. Summary powers are exercised to maintain discipline, through a speedy justice system. While from the outside it looks somewhat like a rough and ready system, it has adequate checks and balances and caters for principles of natural justice. You have to understand the circumstances under which such powers are exercised.

A majority of the time, such powers are exercised in cases when a soldier is charged with disorderly conduct, dereliction of duty, absence without leave etc. In such cases, the Commanding Officer summons the soldier for investigation. The accused is entitled to present witnesses in his defence. If the soldier pleads guilty as charged, he is awarded a summary punishment. If he pleads not guilty, a court of inquiry is usually the next logical step. The whole process is conducted in the presence of two witnesses.

“As a judge, you may never see the accused again, whereas in the Army, you may be punishing your comrade.”

Summary punishments are in the form of pay fine, reprimand, detention in military lines, or rigorous imprisonment not exceeding 28 days. Sometimes, it is more like a slap on the wrist, though exemplary punishments are also awarded in order to maintain high standards of discipline within the ranks. It is obvious that these powers are exercised judiciously and neither party holds any grudges.

I would often tell my fellow Judicial Members in the Armed Forces Tribunal that there is a distinction between punishing a soldier in the Army and punishing someone as a judge in a civil court. As a judge, you may never see the accused again, whereas in the Army, you may be punishing your comrade; he may be your buddy who was in operations with you.

When an officer is punishing a soldier, he will never be too harsh. But at the same time, he will ensure that the punishment is sufficient to act as a deterrent against similar behaviour.

In more serious cases, where someone is accused of corruption, civil offenses, desertion in active service etc, the case cannot be dealt with summarily, and perforce is adjudicated in a court-martial.

In a summary court-martial, the accused is not allowed representation of their choice. What are your views on this?

In the 21st century, this is certainly debatable. Summary court-martial is a colonial legacy dating back to the mutiny of 1857. Prior to 1857, only commanding officers of the Punjab Irregular Force had the power to conduct a summary court-martial, owing to the remoteness of the theatre in which they were operating. This acted as a deterrent and it was found that no soldier from the Punjab Irregular Force participated in the mutiny.

After the mutiny, it was decided that these powers should extend across the board in order to clamp down on indiscipline, enable swift award of punishment, and to nip mutinous activities in the bud. The provisions of summary courts-martial were incorporated in the Indian Army Act, 1911 And subsequently in the Army Act, 1950. the conferment of power to a Commanding Officer to constitute a summary court-martial was meant to be a special power in order to maintain discipline among soldiers and units.

To the extent that the Commanding Officer alone constitutes the court and the fact that the accused is not allowed representation of his choice somewhat militates against principles of natural justice. The Supreme Court in a landmark judgment (Union of India and ors. v. Vishwa Priya Singh) confirmed that the summary court-martial is an exception and must be exercised rarely.

Interestingly, there is no concept of a summary court-martial in the Air Force and the Navy.

Why do we have separate statutes governing the three different wings of our Armed Forces? Isn’t a statute that encompasses all three a better option?

I certainly believe so. This was a lesson that most modern armies learned after the Second World War. The British, Americans and Canadians all eventually decided that different rules applying to different forces fighting for the same cause was illogical, and eventually adopted laws that applied uniformly.

Even in India – and this may come as a revelation to many – Prime Minister [Jawaharlal] Nehru desired that a draft Act that would apply to all the three forces be prepared. This was in 1964. From 1965 to 1978, a number of consultations were held with all stakeholders. These included joint secretaries from the Ministry of Defence, representatives from all three services, Judge Advocate General (JAG) officers from all three services, representatives from the Law Ministry, and legal experts.

Eventually a draft Armed Forces Code Bill, 1978 was prepared and vetted by the Law Ministry. However, in 1979, the Chiefs of Staff Committee decided that they would like to retain individual acts, since the service conditions in each force were different. Only a few aspects of the Draft Code Bill were brought into use via separate amendments to the three acts.

It is time to have a fresh look and introduce a Common Armed Forces Code Bill; it is difficult to imagine a Chief of Defence Staff and Integrated Theatre Commands, without a Common Forces Act. My own view is that this can only come about if it is initiated by the Parliamentary Committee on Defence through wider consultations in a time-bound manner. The Executive must play hardball. If you ask the services to come with a proposal, they are unlikely to do so.

 Do you think that the Army Act as it stands right now could do with a little streamlining?

Not just the Army Act, but all three acts need to be revisited and adapted to principles that are in consonance with jurisprudence of the twenty-first century. Military jurisprudence should evolve in conformity with the constitutional provisions.

Ideally, the JAG Branch should be independent of the chain of command. Sometimes, the JAG officer, instead of thinking about where justice lies, starts thinking about what the boss wants.

Are there any objective criteria that must be fulfilled by an officer before he is selected to sit on an AFT Bench? Can you tell us a little more about the selection process?

The Armed Forces Tribunal Act does not lay down any such criteria. However, it lays down qualification criteria. In order to be eligible to apply, you ought to have been holding the rank of Major General or above for at least three years. Judge Advocate Generals of the Army, Navy and Air Force are also eligible, provided they held the post for at least one year.

The thought process behind this is that only officers with experience in the range of 35-40 years who have tenanted senior appointments will have enough knowledge and experience to sit as an administrative member and assist the judicial member.

If you fulfill the eligibility criteria, you are required to fill in an application form where you are asked details about your knowledge of the law, the kind of cases you have dealt with, and so on. Then your application is examined by a selection committee which consists of a Supreme Court judge nominated by the Chief Justice of India, the Chairperson of the Armed Forces Tribunal, the Defence Secretary, and the Law Secretary.

Once a selection is made, the names are vetted by the intelligence and vigilance authorities. It is then recommended by the Chief Justice of India, and approved by the Cabinet Committee on Appointments.

Do you think it is necessary that the Administrative Member of an AFT bench should be an Armed Forces officer? If so, why?

Yes, I think so. If you bring in a civil servant or a law officer, they may be able to read the law, but will have little understanding of the practical workings within the forces. Only service officers have first-hand knowledge of service conditions, promotions, and the workings within the Armed Forces. It is important to keep the context in view while deciding matters at the AFT.

An AFT flag

A mature and holistic thought can be applied to a matter by an experienced service officer. For example, someone comes up before the AFT challenging a promotion. An officer who has never sat on a promotion board would have no perspective.

The administrative member is someone who is expected to advise the judicial member on the workings of the forces so that between the two of them, they can reach a mature conclusion.

Why did you decide to apply for the post?

I had turned 60, but knew I still had some productive years left in me. I really didn’t want to work for a commercial organization because this would entail working under someone. I felt that the role of Administrative Member would afford me an opportunity to give something back to the service.

Also being appointed to the AFT is a very dignified appointment, and I knew that the work I did there would have a lasting impact on the welfare of the men and the service.

What are some of the things you most enjoyed about the job and what are some of the things that you found irksome?

The most enjoyable part of the job was that cases languishing in the High Courts for a decade or more were resolved by us in two or three hearings. This swift dispensation of justice was very satisfying. We dealt with issues ranging from pensions, promotions, court martials as well as marital and family disputes. We even mediated between married parties and convinced them to resolve their issues amicably.

The only irksome thing was that once we passed orders, the service headquarters and the government took a long time to implement them, and it was difficult to ensure compliance, as there are limited powers of contempt.

However, over a period of time, I think that both the government and service headquarters have realised that it is better to implement orders unless there is a point of law that merits an appeal before the Supreme Court. Even in such cases, a majority of the orders of the AFTs have been confirmed.

As with all adjudicatory authorities, pendency is a problem at the AFT, with many benches not having members. 

The process of appointing a member is long-drawn. My appointment process began in March 2013, and I took office only in December 2013.

The selection process in itself is in limbo, because the government wants the appointment of administrative members from outside the services. There is a serious objection to this within the selection committee, as it goes against the spirit of the AFT Act. However, there appears to be no problem with the selection and appointment of judicial members.

This is sad, considering that tribunals are doing a good job. Even in jurisdictions such as Delhi and Chandigarh, where the volume of litigation is high, the maximum pendency is about 18 months, which is quite satisfactory. However, the AFT should aim to bring this down to under a year, and a full roster of members would go a long way in helping achieve this.

In my own experience, there was no judicial member with me for two years on the Chennai Bench. With great difficulty, we would get a judge for a few days in a month. [We would spend] Two days in Chennai and two days in Hyderabad, and we would then sit overtime and clear pending cases.

Given these constraints, I believe this is what every member is trying to do.

Do you think AFTs are effectively fulfilling their mandate?

Absolutely. Without any shadow of doubt. Not only are they fulfilling their mandate, but doing so with a great sense of responsibility.

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