Waiting for Godot, as usual

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Waiting for Godot, as usual

Tuesday, 25 February 2020 | Deepak Sinha

The military justice system is in jeopardy and is only surviving due to the efforts of the SC and serving members in the Armed Forces Tribunal

It is no secret that what differentiates us from countries like Pakistan is our commitment to the rule of law. However bruised or battered our justice system may be, it still continues to be trusted and it delivers, albeit rather slowly. This, however, does not hold true for the health of the military justice system, which has been in serious jeopardy for the last three years or so. That it continues to survive on the respirator and provide justice is only because of the extraordinary efforts of the Supreme Court and serving members in the Armed Forces Tribunal (AFT). This state of affairs can directly be attributed to the shenanigans of senior bureaucrats in the Defence Ministry and the Prime Minister’s Office, who were caught out when they first attempted to subvert the independence and functioning of the AFT by way of enacting new rules through a Gazette Notification issued under the Finance Act, 2017. In this, they changed the selection criteria and procedures for the appointment of the chairperson and members, especially with regard to that of the administrative members. Whether this was done with the tacit approval of their political bosses, is moot.

Since the role of administrative members is to advise the judicial members on aspects of military law, ethos, customs and functioning, only military veterans meeting a specific criterion could be considered for appointment, as per the Armed Forces Tribunal Act, 2007. However, the Finance Act, 2017 opened this up to “a person of ability, integrity and standing having special knowledge of and professional experience of not less than twenty years in, economics, business, commerce, law, finance, accountancy, industry, public affairs, administration or in any other matter useful to the Armed Forces Tribunal.”

How anybody without the requisite expertise or domain knowledge could be useful in advising on matters military was not elucidated. However, it is not difficult to reach the conclusion that the intent was to provide further avenues for post-retirement sinecures for worthy members of our civilian bureaucracy. That apart, by attempting to tighten its hold on the selection process for the chairperson and members, the Government had unambiguously made clear that it expected those aspiring to be appointed to the AFT to follow its diktats. Obviously, if these amended rules were accepted, then the AFT would represent sheer tokenism of the worst kind as it would be a complete travesty of natural justice and go against the very concept of rule of law.

However, fortunately these reprehensible efforts were nullified when the Supreme Court initially stayed the matter and then subsequently struck it down on the grounds that “they were contrary to the parent Act and principles enshrined in the Constitution” (Rojer Mathews vs South Indian Bank Ltd and Others). The court further pointed serious anomalies in the rules and directed the Government to reframe them. In the ensuing stand-off between the apex court and the Government, serving personnel and veterans alike became victims of bureaucratic apathy and bloody-mindedness.

In a show of extreme vindictiveness and an utter lack of empathy for the military community, and with complete disregard of their actions on morale, the bureaucracy did what it does best, refused to move files, thereby ensuring vacant posts could not be filled. From a time when 17 Benches were functional (each Bench has one judicial and one administrative member) across the country, we are now down to two regular Benches in Delhi and one ad hoc roving Bench that moves from city to city in an attempt to try and provide some semblance of justice. The obvious implication is that the wait for justice just became even longer, with over 16,000 cases pending. If the stalemate continues, as it looks to, the situation will only get worse as administrative members complete their tenure around July, unless of course the apex court extends their terms, as it has done for the two judicial members.

That this Government has no intentions of changing course over the matter, despite all that has occurred, has been clearly brought by the issue of a new Gazette Notification in February under the Finance Act, 2017. The new rules notified therein are only marginally different with regard to selection criterion of the chairperson and judicial members but have made no attempt to change the previously-rejected selection criteria with regard to administrative members. Clearly this action on the part of the Government is not only completely brazen but also appears to be in contempt of the Supreme Court, if its directions were to be viewed in the spirit of the law. As to whether the court itself will view this matter seriously, only time will tell. However, one can be certain that there are bound to be a spate of writ petitions filed against this outrage. This implies we are back on the merry-go-round or maybe just as in Samuel Beckett’s play of the same name we will continue “waiting for Godot.”  What a shame.

(The writer, a military veteran is a consultant with the Observer Research Foundation, New Delhi and Senior Visiting Fellow with the Peninsula Foundation, Chennai)


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