Finally, Justice for CAPF

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Finally, Justice for CAPF

Sunday, 22 January 2023 | Rakesh K Singh

Finally, Justice for CAPF

The Acts passed by the parliament for the creation of paramilitary forces do not leave any scope for not considering them Armed Forces of the Union of India as the Supreme Court has itself settled the matter describing them as such, writes Rakesh K Singh  

The recent Delhi High Court judgment granting pension benefits to the Central Armed Police Forces has to be a wake-up call for the government. The authorities could have dealt with the situation with a little more sensitivity. After all, the CAPF personnel guard our internal security

The members of the paramilitary forces had filed as many as 82 petitions in the High Court seeking entitlement under the Old Pension Benefit to the Forces’ personnel who joined after January 1, 2004.

The Acts under which the CAPFs such as the Central Reserve Police Force (CRPF), Border Security Force (BSF), and Indo-Tibetan Border Police (ITBP) were created clearly categorize them as “Armed Force of the Union” under the Union Home Ministry. But the top leadership of these Forces from the Indian Police Service (IPS) officers parachuted from the State police sought to deny the benefits of the pension by contending that these Forces were not the armed force of the Central government.

On January 11, 2023, a division bench of the Delhi High Court comprising Justices Suresh Kumar Kait and Neena Bansal Krishna delivered a landmark judgment allowing a clutch of petitions filed by officers and men, mostly from the CRPF and BSF seeking entitlement under the  Old Pension Scheme (OPS).

The petitioners had sought pension benefits under the OPS which continued in these Forces for the employees who were inducted on or before December 31, 2003.

However, the old pension scheme continued uninterrupted in the case of the 'Armed Forces' under the Ministry of Defence which are collectively called defense forces or military--- Army, Navy, and Air Force.

The Notification issued by the Ministry of Finance (Department of Economic Affairs, Notification No. 5/7/2003-ECB & PR dated December 22, 2003, through which the government discontinued the old pension scheme for Government employees clearly stated that the New Pension Scheme (NPS) would apply to all except for the personnel in the Armed Forces.

Delivering the judgment, the division bench of Delhi High Court reaffirmed what was very explicitly mentioned in the respective Acts of Parliament through which the CRPF, BSF, ITBP, SSB, and CISF were created as Armed Forces of Union of India to meet the internal security challenges and for the internal defence of the country.

The other Armed Forces created and maintained under the Ministry of Defence were tasked exclusively for the defence of the country from external threats and challenges. The court pointed out that these provisions are enshrined in Entry 2, List I of the Seventh Schedule under Article 246 of the Constitution of India. On this basis, the High Court concluded that the CRPF (and other such Forces) are armed forces of the Union and hence their members are entitled to the Old Pension Scheme.

The Court also trashed dubious bureaucratic arguments that the CRPF is a reserve force and hence cannot be termed as an armed force of the Union. The argument was farcical as the reserve component of the CRPF is virtually nil due to stretched deployments across various theatres.

Security exp0erts feel that given the dynamic nature of the threats posed by a variety of inimical elements and technological progressions as also ever-evolving patterns of crimes and terror, the armed forces must be fully equipped, including pension entitlements to keep them operationally effective to mitigate the challenges of modern times interspersed with all types of disruptions.

Relying on the CPRF Act, the Supreme Court in its order in the Akhilesh Prasad versus Union Territory of Mizoram (1981) sought answers to both the questions---Is the CRPF a Force? And is the CRPF an Armed Force?

“In our opinion, the answer to both the questions must be given in the affirmative because of the provisions of sub-section (1) of Section 3 of the CRPF Act…..That sub-section reads thus: “There shall continue to be an armed force maintained by the Central Government and called the Central Reserve Police Force,” the apex court had said in its order.

The sub-section itself declares in no uncertain terms that the CRPF is an armed force of the Central Government which is the same thing as saying that it is a part of the Armed Forces of the Union, it noted.

“We may make it clear, however, that even if the provisions just above extracted were not available our answer to the two questions would still be in the affirmative,” the Supreme Court ruled.

“We hold that the CRPF squarely falls within the expression “Armed Forces of the Union” as used in sub-section(2) of Section 167 of the CrPC (Criminal Procedure Code),” the SC had held.

In a circular dated August 6, 2004, the Union Home Ministry also clarified that the Central Forces under the administrative control of the Ministry of Home Affairs have been declared as Armed Forces of the Union.

The CRPF Act came into being in 1949 even before the Constitution of India was formally adopted on January 26, 1950.

To augment the additional financial burden, if any, arising due to the implementation of the Old Pension Scheme, there is a need to tweak the New Pension Scheme. The government may make policies to do away with pension benefits if a member of such forces leaves prematurely.

The Acts passed by the parliament for the creation of the respective paramilitary forces by the Parliament of India do not leave any scope for not interpreting them as Armed Forces of the Union of India as the Supreme Court has itself settled the matter describing them as such.

The CRPF Act which was passed by the Parliament on December 28, 1949 (and based on which all other forces such as BSF ITBP CISF SSB, etc. were raised) categorized CRPF as an Armed Force and mentions that it should continue as an Armed force of the Union of India.

Drawing powers under these provisions, CRPF has played a tremendous role along with the Indian Army under the then Union Home Minister Sardar Vallabhbhai Patel in the unification of the Indian states post the independence.

Given this scenario, the stand taken by the CRPF headquarters in an affidavit filed in the Delhi High Court as the key respondent in the Old Pension Scheme case is shocking. The CRPF bosses told the court the old pension scheme should not be allowed to their own ranks and files for the appointments made on or after January 1, 2004, because  CRPF is not an Armed Force but a Police organization.

Such a contention by the CRPF top echelons is astonishing. It seeks to underplay the critical role performed by their men and officers in maintaining the integrity and sovereignty of the country in different operational theatres. How can anyone overlook the role of the CRPF in meeting the enormous challenges in Jammu and Kashmir and Leh? How can anyone forget the supreme sacrifice their men keep making while tackling the Naxalite problem in the so-called Red Corridor? Similarly, their role in keeping the security scenario under control in North East is also commendable.

However, the contents of the affidavits indicated that the CRPF top leadership is in perpetual ignorance about its own constitutional status and mandate.

The response of the Ministry of Home Affairs, the parent ministry under which the CRPF, BSF and all other such forces function, was also disconcerting.

It is important to understand that since a major chunk of the defence forces, more particularly the Indian Army and the Central paramilitary forces, constitute of men drawn from the rural and the semi-urban environment, the pension benefits will have positive ramifications on the ground where it matters the most. 

Given the security situation and the internal security scenario over the past 50 to 60 years, it can be fairly seen that

Incidentally, the working conditions of these forces whether in Kashmir or in  the Naxal theatre or in North East or in all the bordering areas and inhospitable terrain is very challenging. In these places, a modern Western-type state-of-the-art infrastructure and living condition for the troops is still beyond imagination or comprehension or practically impossible for a considerable time in the future.

Given such a situation, certain monetary benefits in the form of the old pension scheme will not only serve as a morale booster but also help in strengthening the recruitment of more motivated and qualified candidates in the future.

The old pension scheme system is not only essentially beneficial for drawing the youths from the rural and semi-urban backgrounds into these forces in large numbers but also it will tremendously add to their retention possibilities in these forces for a considerably longer period as the pension mandates at least 20 to 30 years of continuous service for the entitlement of pensionary benefits.

The Government, in the larger interest of these very important forces, can resolve this issue amicably in the overall interest of around 10 lakhs serving personnel of these Forces (approximately half of which have been kept out of the ambit of OPS post joining on or after January 1, 2004).

The number of government employees is just 2 to 3 percent of the total population or the workforce in India. The percentage of Armed Forces personnel under the Ministry of Defence (MoD) and MHA is considerably fewer numbers than the total figures of Government employees.

Several State governments ruled by the Opposition have already taken the lead in adopting the Old Pension Scheme in their respective jurisdictions.

The Delhi High Court directing the central government to give pensionary benefits to all the Paramilitary personnel could serve as a great opportunity for the Government to address the concerns of those guarding our nation against both external enemies and internal troublemakers. 

(The writer is special correspondent of The Pioneer)

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