Regulations
SC decision on AFT curtails right to effective justice for defense personnel, veterans
The decision by the apex court effectively ensures that the Armed Forces Tribunal or AFT becomes the first and the last forum for litigants. This also means defense personnel, veterans and their families will not have a multi-layered remedy of reviews and appeals that is available for other citizens
 
It is indeed a dark day for litigation related to defence personnel, defence veterans and their families.
 
The Supreme Court has rendered a decision Wednesday, which effectively ensures that the Armed Forces Tribunal (AFT) becomes the first and the last forum for litigants, thereby placing them at a much lower pedestal than other citizens of the country.
 
By way of the ibid decision, it has been held that orders of the AFT cannot be challenged by affected parties before the High Courts, as was being done till today. And the only remedy to challenge the same is before the Supreme Court by way of an appeal as provided in Sections 30 and 31 of the Armed Forces Tribunal Act, 2007. 
 
What however, is bound to hit litigants as a rock, is the fact that there is no vested right of appeal to the Supreme Court conferred by the above sections. An appeal can only be filed by the leave of the Tribunal in case a “point of law of general public importance” is involved or if it appears to the Supreme Court that the point is such that it needs to be considered by the highest Court of the land. The fact that there is no vested right of appeal has already been solidified by the Supreme Court in yet another decision (Brig PS Gill’s case) and the fact that issues such as pension are not matters involving ‘point of law of general pubic importance’ has also been judicially determined in a recent case (ML George’s case). 
 
Of course, most of the issues before the AFT are not of general public importance but there are matters personal to litigants, which means that such matters are barred by the statute itself from being taken to the Supreme Court, in appeal. Hence, the AFT becomes the only Court for military litigants effectively closing the right of judicial review. It is yet another story that Sections 30 and 31 of the Act have been plagiarized from the appellate provisions provided for the House of Lords (Now the Supreme Court of the UK) and have no parallel in Indian jurisprudence as we know it.
 
The Supreme Court, in its decision, has also stated that High Courts shall not entertain matters when an effective alternative remedy is available within the statute [Para 34 (iv)]. But then, as the above would demonstrate, and also tacitly held by the Supreme Court earlier, that there is no effective remedy available at all since the same is fettered by discretion and also subject to the leave of the Tribunal.
 
The Supreme Court has cited judgements such as Cicily’s case dealing with other statutes like the Consumer Protection Act. This issue however already stands discussed in PS Gill’s case wherein the apex court had held that while the Consumer Protection Act provided for a vested right of appeal, the Armed Forces Tribunal Act did not. Moreover, in law such as consumer or tax, the litigant has a multi-layered remedy of reviews and appeals. 
 
To take an example, in consumer cases, the consumer can first approach the District Forum, then the State Commission followed by the National Commission and then the Supreme Court, as a matter of right. However, in case of the AFT, the litigant starts and finishes with the AFT unless there is a question of general public importance involved. Also, while consumer law deals with consumer disputes mostly between private parties, in case of the AFT the disputes are between an individual and the Government and are determined by a quasi-judicial tribunal functioning under the aegis of the opposite party (The Ministry of Defence) and involve valuable fundamental rights. Even the Members of the AFT are selected by a selection committee, which has two career bureaucrats on it, including the Defence Secretary, who is the first opposite party in all litigation before the AFT. To be fair, it would not be in the fitness of things to opine that the functioning of the AFT has not been up to mark. 
 
The AFT has duly brought succour to the defense community by some of its decisions, but then, the performance has not been uniform or even, and as in every democracy, a multi-layered system of appeals and/or judicial review is a legitimate expectation of every citizen when he or she is not satisfied with the verdict rendered by a forum. The situation would have been different had there been an Appellate Tribunal and then a vested right of appeal to the Supreme Court, but that is not the case. Layers cannot and should not be eliminated on the pretext of early dispensation of justice but at the cost of valuable rights and remedies of citizens.
 
The Supreme Court, in its decision, has also relied upon Article 227(4) of the Constitution, which prohibits the superintendence of High Courts over Courts or tribunals constituted by or under any law related to the Armed Forces. However the words ‘courts and tribunals’ occurring in Article 227(4), which is a part of the Constitution, refer and relate only to courts-martial as becomes clear from Chapter 10 of the Constituent Assembly debates and not to any tribunal such as the AFT which itself was born by way of a Parliamentary Act in the year 2007 many decades after the inception of Article 227(4). 
 
Moreover, judicial review under Article 226 still remains unaffected even if hypothetically the bar of Article 227(4) is taken into consideration. Even Section 14 of the Armed Forces Tribunal Act, 2007, itself preserves Articles 226 and 227 of the Constitution of India. The writ jurisdiction under Article 226 is not a remedy of interference but ensures that authorities, including Tribunals, remain within their bounds. The system of judicial review by the High Courts also reduces the scope of recklessness by quasi-judicial bodies since they remain alive to the fact that they are amenable to the writ jurisdiction of the High Courts. 
 
The Supreme Court has also referred to restriction of fundamental rights of members of the Armed Forces under Article 33 of the Constitution. But the question arises whether the basic human right to judicial remedy can be curtailed? Also, the restriction only applies to members of the Armed Forces and not to retired personnel or to their families, who form the bulk of military litigants. The same restriction in the same Article also applies to paramilitary and the police, have they also been burdened with curtailment of judicial remedy? Obviously not!
 
The net result of the decision rendered by the Supreme Court, is the following:
 
A. That the AFT becomes the first and the last court for defence personnel, retired personnel and their families, unless there is a point of law of general public importance involved. The Supreme Court has already made it clear in other cases that there is no vested right of appeal and matters such as pension do not fall within the realm of ‘point of law of general public importance’. The AFT would also now continue deciding issues involving “points of law” which had recently been prohibited for tribunals by a Constitutional Bench decision of the Supreme Court in the Madras Bar Association case pertaining to the National Tax Tribunal.
 
B. That there shall now be no efficacious remedy against AFT orders which shall also lead to practical problems. For example, if a widow or a disabled soldier sitting in Kerala or Bengal or Assam or Gujarat is dissatisfied with an order of the AFT, he or she would first have to apply for a leave to appeal to the AFT, and then engage a lawyer in Delhi for her case before the Supreme Court.
 
C. The litigation that was till now being adjudicated by independent Constitutional Courts would now be determined by a quasi-judicial departmental Tribunal, which is not even vested with the powers of Civil Contempt and which has the Ministry of Defence as its parent administrative Ministry, without any vested right of further appeal.
 
D. The Government with its battery of lawyers in the Supreme Court would continue filing en masse appeals against orders that are favourable to litigants while litigants would not be able to afford litigation at the Apex Court at all.
 
E. The Supreme Court, which was meant to adjudicate matters of great importance and Constitutional issues, would now open its floodgates for innocuous litigation arising out of quasi-judicial Tribunals, for which even practically it does not have time and space, as opposed to the High Courts, which are still able to provide hearings at length.
 
F.  Defence personnel, veterans and their families become even lesser citizens than what they already were. Justice would neither remain affordable, nor accessible. 
 
G.   Years and years after independence, the system succeeded in eliminating the eye of our fiercely independent High Courts upon the establishment’s opaque functioning. This was done by the legislation of the fractured Armed Forces Tribunal Act, 2007. The inception of AFT hence did not ultimately prove to be a boon, but a restrain on judicial rights. 
 
The effects of the decision are deleterious and far-reaching and it is only hoped that other similar pending matters are referred to a larger Bench of the Supreme Court and the situation corrected.
 
(Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and the Armed Forces Tribunal. He was also the founding President of the Armed Forces Tribunal Bar Association. He is a Member of the International Society for Military Law and the Law of War at Brussels)

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COMMENTS

Manohar Karpe

2 years ago

A sad day indeed.It looks like the complete subjugation of the Armed Forces is the next step.The babus,the politicians and those who were wanting to teach the Armed Forces a lesson have acheived their aim.Wonder whats the reaction of the service Hqs If any??????
Is there no way out?

DEEPAK LENKA

2 years ago

Trulu a black day in thr history of Supreme Court.

SuchindranathAiyerS

2 years ago

The judiciary's view that justice is not entirely essential for the Armed Forces was in full public view when the then Chief of Army Staff appealed to have his age and date of birth adjudicated. But, the Armed Forces may rest easy as this only spares them the prolonged pain and humiliation of relying on Indian "Justice". Recently, as a civilian, I had the misfortune to hear a High Court Judge, in open court, proclaim, "This is India, not UK or US"; to justify quashing a criminal case, with utter disregard to both law and evidence, to favour a set of wealthy and influential accused persons. On appeal, the Supreme Court "declined to interfere". So, this judgement merely reduces the prolonged agony of expecting the rule of law in India!

Rajaram Bojji

2 years ago

Truly astounding that our apex court can deliver such judgment. A revision petition in irder. No law can be superior to over ride the constitutional fundamental rights for free speech and right to judicial remedies.
Something is disturbing. Over enthusiasm for Cricket and less debate on very fundamental really important judicial process for helping common man like retired defense person. Adds insult to injury to a person who offered his life to save the nation and its constitution, under which the SC exists.

Amritraj Peshin

2 years ago

how did this happen!
Effectively some of the Delhi babudom seems determined to put Navdeep Singh and others work and the current govt's resolve & on Defense personnel matters to waste

The mechanism used to address Defence matters has to change

REPLY

Arun Kumar Roy

In Reply to Amritraj Peshin 2 years ago

It is paining to heard is the same SC who pointed out many time that defence personnel in our country are being treated in a shabby manner by the Govt, defence personnel posted at a high altitude field area and met with an accident during discharging of his duties was granted a meager pension is a pittance, if this is the manner in which the defense personnel are treated, it can only be said that it is extremely unfortunate. The defence personnel are bravely defending the country even at the cost of their lives and we feel that they should be treated in better and more humane manner by the Govt authorities, particularly, in respect of their emoluments, pension and other benefits and now the same SC curtailing the legal right of defense personnel and their family. AK Roy Retd Air Force

Snuggie Marketers to Pay $7.5 million in Customer Refunds
There's nothing cozy about allegations of deceptive advertising
 
Our obsession with “cozy” knows no bounds. No one ever really wants to go out; we only do it so that we can say later, with great pleasure mind you, “Hey, we gotta get back.” Back to what exactly? The comfort of hearth and home, the comfort of our Snuggie.
 
The Snuggie Phenomenon has led to a few things: Reported sales topping 30 million for the so-called “blanket with sleeves,” parodies poking fun at the product’s cult-like following, and now, decidedly less amusing, two settlements against the marketers of the “As Seen on TV” product.
 
Allstar Marketing Group LLC recently agreed to pay $7.5 million in customer redress to settle FTC charges it deceptively marketed “buy one, get one free” promotions for the Snuggie and other products such as Magic Mesh, Cat’s Meow, Roto Punch, and Perfect Tortilla. The company will pay an additional $500,000 to the New York State Attorney General’s office, which brought a separate action but worked with the FTC on the agency’s complaint.
 
The FTC and New York AG’s office alleged that Allstar’s promotions failed to adequately disclose additional fees that, when added to the advertised price, nearly doubled what consumers thought they were paying. Said Jessica Rich, director of the FTC’s Bureau of Consumer Protection:
 
Marketers must clearly disclose all costs. That includes processing fees, handling fees, and any other fees they think up. Working with the New York Attorney General, we’ll return millions of dollars to consumers that Allstar collected in undisclosed fees.
 
The complaints also alleged that a confusing ordering process led some consumers to mistakenly purchase more BOGO sets than they actually wanted. In a statement, Allstar admitted no legal wrongdoing but vowed to change its ordering process “to provide multiple opportunities for customers to confirm their orders before placing them,” and “to clarify ordering and return procedures.”
 
Consumers who believe they may be entitled to a refund can file a complaint with the FTC here and the NY AG’s office here.
 

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Fed Inspector General Reopens Leak Investigation
The move comes as Senate Finance Committee Chairman Sen. Orrin Hatch demands more information about how a private newsletter obtained confidential details of Fed discussions 
 
The Federal Reserve Board’s inspector general has reopened an investigation into a two-year-old leak of confidential monetary information amid rising Congressional scrutiny into how the Fed has handled the matter, ProPublica has learned. 
 
Sources told ProPublica that the IG’s action came March 4 and was based on new information. Investigators had closed the leak inquiry last December after initiating it in March 2013.
 
Congressional attention to the leak has grown in recent weeks. On Wednesday, Senate Finance Committee Chairman Orrin Hatch, R-Utah, joined those demanding more details about how the leak investigation was handled. 
 
Hatch sent strongly worded letters to Fed Chairwoman Janet Yellen and to the board’s inspector general, Mark Bialek, expressing frustration over the fact that the original investigation and its results had remained private. He also complained that Bialek’s staff had been reluctant meet on the subject.
 
“Of course, that’s unacceptable,’’ Hatch said in the letter to Bialek, accusing his office of trying to “cloak information” by contending the investigation was a confidential “pre-decisional” matter of the Federal Open Market Committee (FOMC), which sets monetary policy that guides the economy. 
 
ProPublica reported earlier on the October 2012 leak, in which confidential information about key moves in the Fed’s bond-buying program found its way into a financial analyst’s newsletter. The information went to the analyst’s clients one day before the scheduled public release of the open market committee’s meeting minutes.
 
The newsletter revealed some of what the minutes would say as well as fresh details about the Fed’s internal plans and deliberations – information that could have provided traders with an edge. 
 
Spokesmen for Bialek’s office and the Fed acknowledged receiving the letters from Hatch but declined to comment on them. 
 
Fed protocol requires that in the event of a leak, the FOMC secretary and the Fed general counsel are to perform a preliminary review. Results are to be reported to the Fed chairman. The general counsel then decides if the matter warrants further investigation by the Fed’s inspector general.
 
After becoming aware of the leak, then-Chairman Ben Bernanke instructed Scott Alvarez, the Fed’s general counsel, and William English, the committee’s secretary, to conduct an internal inquiry. They sent a questionnaire to people who had access to the information that was disclosed. 
 
Hatch’s letter to the IG asks for a briefing on the investigation, who at the Fed was interviewed, whether the IG gathered phone or email records to look for contacts with the newsletter analyst and why there has been no report about it. 
 
“There is no record on the OIG’s public website to indicate that any investigation occurred, or of any attendant audit or audit report, or results of any investigation that may have occurred,” Hatch wrote.
 
The Fed never revealed the inquiry and only publicly acknowledged the leak in response to a public records request by ProPublica. 
 
In the letter to Yellen, Hatch wrote: “It does not appear that the Board has publicly disclosed any of its findings from its investigation into the potential severe breach of information security in this matter.”
 
Hatch’s interest adds a more bipartisan cast to concerns on Capitol Hill about the leak. 
 
Sen. Elizabeth Warren, D-Mass., and Rep. Elijah Cummings, D-Md., have also asked the Fed for more information about the leak. At a recent hearing on monetary policy, Warren sharply questioned Yellen about whether the Fed would provide a briefing. Yellen promised it would.
 
Courtesy: ProPublica.org

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