Armed Forces Tribunal (Amendment) Bill, 2012
Jun 15, 2015
Armed Forces Tribunal
(Amendment) Bill, 2012
Maj Gen Nilendra KumarDirector
Amity Law School, Noida and
former Judge Advocate General (Army)
Based on a presentation before the Parliamentary Standing Committee on Defence on 18th December 2012 and subsequent analysis.
Views of experts and stakeholders should be considered and given due weight prior to deciding any change in the statutory law.
The Bill seeks to make two changes
to the Armed Forces Tribunal Act,
2007.
The two changes have been
discussed in this presentation in
the shape of two issues.
ISSUE No. 1
The Bill has proposed two changes
in the AFT Act, 2007.
Amendmentto
Section 8
Section 8 concerns
term of office of
Chairperson or Member
The proposal is to increase
(a) the age of retirement of chairperson from 65to 67 years if he is a Chief Justice of a High Court.
(b) the age of retirement of Judicial Member from 65 to 67 years.
Judicial Members are retired High
Court Judges.
Administrative Members are Maj
Gen/equivalent or above who have
held the rank for three years or
more, or a Judge Advocate
General who has held the post for
at least one year.
Secondly the term of office increased from four to five years.
COMMENTS
Earlier the members were eligible
For re-appointment but not so
under the proposed Bill.
Hence, the Bill seeks to do away
with the policy to allow re-
appointment for another term to
those who may be so eligible.
The moot issue is what’s the need?
Is there adequate justification for
the change?
COMMENTS
The proposed amendment
providing for extension of tenure
from four to five years would :
a) Bring in complacency in the
members giving them security of tenure. Irrespective of their performance they would be allowed to serve for a longer duration.
1. Records and data about the
actual performance calls for a critical study.
Disposal Rate of decided needs to be examined.2. Number of cases decided (in a month or year).3. Quality of judgments. How many orders were later stayed by the Supreme Court or allowed in appeal by High Courts or reversed.
4. Adjournments allowed. That
would reflect the time taken or speed of disposal of cases.
b) The amendment sought may be repugnant to the continued zest for efficiency.
Yet another drawback is that an impression may be formed that having once taken over as a member no further re-appointment is allowed. So where is the need to perform?
c) The change proposed would make it impermissible even for those who are appointed a member at a relatively young age by disqualifying them to continue as such by re- appointment.
Another significant change
now proposed in the Bill is to
introduce different ages of
retirement for judicial and
administrative members.
Why different ages for retirement for judicial and administrative members?
Military personnel are expected to
be generally in better health. Also
they are physically and mentally
agile. Why the Tribunal be
deprived of their experience and
caliber?
Hence, there is little logic in retiring
them early.
Also, why such a hurry to change
the existing law?
Too short a period has elapsed to undertake such a major change.
AFT started functioning in 2009.
Now the proposed Bill implies that
the law is proposed to be changed
in three years.
Hence, the amendment at issue No 1 to section 10 of the AFT Act does not appear to be justified.
However, a question arises as to
how to manage deficiencies and
vacant posts?
The process of advertisement and
notice calling for members needs to
be efficiently managed.
Suggestion
1. Better management by way of prompt identification, notification and selection of members.
2. The benches of AFT are at the
same location as High Court.
Hence, motivate attract and
invite/encourage serving Judges
to apply early towards the end
of their service.
Approach the retiring Judges
of the High Courts well in time
to attract them to apply for
membership of the Tribunal.
Issue No 2
Amendment to Section 19
The proposed amendment envisages the provisions of the Contempt of Court Act, 1997 to have effect in the case of the AFT as regards jurisdiction, powers and authority.
But the proposed amendment is silent with regard to
(a) Definition of contempt(b) Exceptions or defences available to one who is sought to be proceeded against (Sections 3 to 7)
(c) Appeals (section 19)
(d) Power to make Rules (Section 23)
What is meant by contempt?
Ingradients or elements of the
crime should be clear and well
defined.
Would there be any valid defences
available to the one charged with
contempt? If so, what?
Would one found guilty and
convicted get any right to appeal.
If so, when, how and to whom?
The existing section concerning
Rule making power does not cover
such an aspect.
Such substantial issues cannot be covered by implication.
As such, amendment to Section 19 also warrants a re-look.
This opportunity could be taken to
discuss some other areas where a
re-look at the AFT Act appears
warranted.
Other major issues that need to be covered.
Point No. 1
Power of Chairperson under Section 27 calls for a review by way of clear enunciation.
The power relates to transfer of cases from one bench to another.
Power on a judicial matter should not be provided to be exercised in an administrative manner.
This power to transfer matters from one bench to another should be invested in a bench of minimum three members.
Chairperson should not be allowed to exercise such a power “on his own motion or without notice”.
Point No. 2
Sections 30 and 31concern Appeal and Leave to Appeal
The decision of the Supreme Court on Union of India V Brigadier PS Gill, (2012) 4 SCC 463 has shown a major need for a discussion.
Only mode to file an appeal under the Act to the Supreme Court is either by way of certificate obtained from the AFT or by leave obtained from the Supreme Court under section 31.
Scheme of Section 31 provides that an application for grant of certificate from the AFT, before approaching the Supreme Court for grant of leave to file an appeal.
Thus the provision to a statutory appeal is really not present.
Hence, need for suitable amendment.
Point No. 2
Delhi High Court decision dated 26th April 2011 in the case of Colonel AD Nargolkar V Union of India.
(2011) ILR 4 Delhi 114, 179 (2011) DLT 447
Decision by
Justice Pradeep Nandrajog
Decisions by the Armed Forces Tribunal would be amenable to judicial review by High Court under Article 226 as also under Article 227 of the Constitution of India.
Another major deficiency in the
AFT Act.
Point No. 3
Deletion of the exclusionary clause in section 2(0) which deprives a suitable remedy to the cases of those aggrieved by way of action under Presidential pleasure doctrine, transfers, postings, leave denial and Summary Court Martial verdicts of less than dismissal.
Point No. 4
A PIL filed before the Punjab and
Haryana High Court has highlighted
non-compliance by the Union
Government on the orders of the
Tribunal in about 3000 cases.
It was alleged that the MoD has
refused to implement the orders of
the Tribunal even upheld by the
Supreme Court.
On 12 December 2013, the High
Court has issued notice to the
Union Government.
Point No. 5
The Tribunal transacts its
proceedings in English. Such a
practice keeps its deliberations
beyond majority of the litigants who
belong to the non-officers category
and are not conversant with the
language.
Point No. 6
Officers who have held the post
of the JAG for minimum one year
should be eligible to serve as
Judicial Member and not
Administrative Member as is the
current position.
Point No. 7
Absence of a Code of Conduct for
the Chairperson and members.
The same is needed to avoid bias,
prejudice and conflict of interest.
The members particularly
Administrative Members not
having held judicial posts are not
familiar with restraints and
prohibitions expected in a Judge.
Therefore, a piecemeal review of the AFT Act ignoring substantial aspects warranting detailed scrutiny may be avoided.
Recommendation
A complete and wholesome view should be taken of the AFT Act.
CONCLUSION
An effective tribunal composed of competent members adhering to fair procedures and armed with requisite powers with alone inspire confidence amongst the litigants.