Remove legal unfairness, demand ex-servicemen: Article by Moneylife.in
Ex-servicemen
demand right to appeal to High Courts as fundamental right exercised by
other citizens, against an order of SC making Armed Forces Tribunal the
first and last forum for them
The Indian Ex-Servicemen Movement
(IESM), which is Federation of Military Veterans' Movement, has
requested Prime Minister Narendra Modi to abrogate Sections 30 and 31 of
the Armed Forces Tribunal (AFT) Act. Abrogation of these sections will
help challenge orders of the AFT on the lines of the Central
Administrative Tribunal (CAT) and make justice accessible and practical
for defence personnel, ex-servicemen, widows and their families, IESM
said.
The letter sent by IESM refers to a decision on 11 March
2015 by the Supreme Court, which effectively ensures that the AFT
becomes the first and the last forum for litigants, including defence
personnel, veterans and their families.
In a letter, IESM, said,
"The judgement was passed on an appeal filed by the Ministry of Defence
(MoD) and perhaps also the Army Head Quarter (HQ) during the time of the
last Government. We also have reasonable information to believe that
one of the grounds raised by the MoD/Army in the appeal for denying the
right of judicial remedy like other citizens of India, was that
Fundamental Rights can be restricted/abrogated under Article 33 of the
Constitution for defence personnel and hence a judicial remedy under
writ jurisdiction of High Court would not be available."
"If it is
true that this argument was raised by the MoD/Army, then it is the most
unfortunate that the system itself is pleading for placing defence
personnel on a lower pedestal than other citizens and pleading before
the SC that the military community does not deserve the enjoyment of
fundamental rights like others. It is a well known fact that Article 33
only operates during performance of duties to maintain discipline and
has no connection with right to access of justice," the letter says.
It
is also well known that the majority of cases in the AFT pertain to
retired personnel, military widows and their families and hence Article
33 even otherwise has no applicability. This is also against the spirit
of Article 39A of the Constitution, which underlines equal justice for
all citizens, IESM said.
According to the letter, there was an
attempt to convince military community that the decision will lead to
‘quicker’ justice to defence personnel. However, it says, on closer and
deeper examination of the issue, the following real facts and fallouts
emerge:
- There is actually no right of appeal to the
Supreme Court from AFT orders as per the AFT Act since an appeal only
lies in exceptional cases involving ‘point of law of general public
importance’ vide Section 31 of AFT Act. Hence what has been pleaded
before the SC is that AFT should become the court of first instance as
well as the court of last instance, leaving defence personnel, veterans
and widows remediless since it is well known that 99.9% of cases can
never involve ‘public importance’ questions. The decision will not lead
to ‘quicker’ justice but in reality remove all chances and channels of
challenge/appeal against AFT decisions. Can this bogey of ‘quicker’
justice be raised at the price of fundamental rights of accessible
justice and remedy to citizens?
- It is well known that almost all
such litigants cannot afford litigation in SC due to its prohibitive
cost and the aura itself of being the highest court of the country. It
is not understood how the defence ministry expects poor litigants
including disabled soldiers and widows from all over the country to
travel to Delhi and engage lawyers in SC to fight their cases. Most of
the cases in the AFT involve issues such as disability benefits,
pension, minor allowances, pay fixation, ACRs etc and litigants would
now be expected to suffer in silence if they feel that they have not got
justice from AFT.
- Defence personnel, veterans, widows and
families have been deprived of their basic right of access to justice
due to the plea raised by the MoD/Army wherein while all citizens of the
country would have access to multiple tiers of justice, not even one
tier would be available to us. Even civil government employees aggrieved
by orders of Central Administrative Tribunal (CAT) can approach the HC
if they are dissatisfied and then further the SC, whereas similar access
has been denied to us and after an order of the AFT even the SC cannot
be approached as a matter of vested right unless there is involvement of
a point of general public importance.
- We hereby express our
dismay on the attempt of the official system to convey to the SC that
fundamental rights of the military community should be restricted or
abrogated. We are disappointed that the system itself by raising the
plea of Article 33 is attempting to prove that defence personnel,
ex-servicemen and their families are lower than the ordinary person on
the street. This will have disastrous consequences in the years to come.
If the MoD/Army makes such averments pleading for taking away the
fundamental rights of their own members and former members and their
families, then it is extremely unfortunate.
- It is well known
that the AFT functions under the control of the MoD and even Members of
AFT are appointed by the MoD and selected by a selection committee,
which has the Defence Secretary as its member. AFT has also not been
given civil contempt powers to ensure compliance of its orders. In other
words, an ineffectual body has been created which functions under the
MoD and then now on the plea of the MoD it has been assured that there
is no effective appeal making it an all supreme body.
Maj
Gen Satbir Singh (Retd), Chairman of IESM says, "We express
dissatisfaction at the stand and damaging stance of the MoD and the Army
in the said case, which has led to such a situation. We request the PM
to kindly abrogate Sections 30 and 31 of the AFT Act so that AFT orders
can be challenged on the lines of the CAT thereby making justice
accessible and practical for defence personnel, ex-servicemen, widows
and their families.
Tamil Nadu-based Welfare Service of
Ex-Servicemen/Families and Others, also supported the demand made by
IESM. "We fully support the ex-servicemen associations from Punjab and
Chandigarh. We request you to kindly initiate steps to abrogate and
repeal Sections 30 and 31 of the AFT Act in order to make justice
accessible to defence personnel on the lines of CAT so that aggrieved
parties are able to approach the High Courts, which are independent
court unlike the Tribunals, which operate under the control of Ministry
of Defence and which do not inspire the confidence of litigants, " the
letter sent by the association to PM Modi says.
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