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Indian Armed Forces Tribunal has 19,000 pending cases, but here’s why this is least of its problems

DEFENCE

The Armed Forces Tribunal (AFT) — a special judicial forum to address legal grievances of armed forces personnel — was set up in 2010. It was supposed to have 17 benches in 11 locations across India.

Cut to 2021, the tribunal is functioning with just four benches in three locations — two in Delhi, and one each in Chandigarh and Lucknow — with almost 19,000 cases awaiting final adjudication. Some of the undecided cases include petitions that were filed when the tribunal was set up 11 years ago.

The government too has admitted to a shortage of members in AFT benches. Against the sanctioned strength of 34 members, only 11 — four judicial members and seven expert members — are occupied, the Parliament was informed earlier this week. 

The functioning of the AFT is governed by the Armed Forces Act. An AFT bench comprises one judicial and one administrative or expert member, and functions only when the quorum of two members is complete.

While a judicial member is either a retired Supreme Court or high court judge, an administrative member is either a retired defence personnel or civil servant.

Sources in the AFT told ThePrint that out of the four judicial members, two have been on extension since October 2019. They further said that vacancies are aplenty in AFT since 2016 and the Centre has made little effort to fill them up within a reasonable period of time, leading to a decrease in the strength.

In 2016, there were six serving judicial members and 11 administrative members. Five years later, however, this figure has come down to four and seven, respectively. Resultantly, 13 benches of AFT are non-functional where no hearing takes place.

Dispute over new service rules for tribunal members is the primary reason for delay in the appointments, according to experts and AFT officials.

In November 2020, the Supreme Court had given its verdict on the validity of service rules for members serving in various tribunals — brought in by the government that February — and directed the Centre to set up a body to oversee appointments to all tribunals. 

Instead of complying with this directive, the government in January this year filed an application, seeking clarification on a few directions related to the service rules.

Experts, meanwhile, said the creation of AFT didn’t really help much in disposing of grievances of armed forces personnel, who are being treated as “second rate citizens”. They also said it is entirely up to the government whether it wants the tribunals to function effectively. 

ThePrint reached the defence ministry spokesperson through email for a comment on the matter, but there was no response till the time of publishing this report.

Three of 7 administrative members without much work

Given that there are only four judicial members, three out of seven serving administrative members do not have much work to do. Unlike in other tribunals, a bench in AFT cannot hear cases with just one member, AFT sources said.  

It was only during the Covid-19 pandemic that the present chairman of AFT began holding virtual hearings for the three benches, generating some work for the administrative members posted there.

“Although these hearings are occasional — once a week for each bench — at least there is some semblance of normalcy,” said an official from the AFT.

Govt yet to finalise recommendations sent in Oct 2020

The bar association of AFT’s principal bench in Delhi moved the Supreme Court in 2016, raising concern over high number of vacancies in the tribunal, following which six judicial members were appointed. 

However, no fresh appointments took place when four out of the six retired, after their three-year term ended in 2019.

Two of them got extension in October 2019 on the directions of the top court, which was hearing a set of petitions against new rules that is seen as an attempt by the government to impede the independent functioning of the tribunals.

The modified rules make the post of members less attractive for retired judges as well as senior officers of the armed forces, according to petitions challenging the service rules, which have been accessed by ThePrint.

The last appointment in both the judicial and administrative side was made in December 2020 — one judicial and five administrative members.

Sources in the AFT said the selection committee — headed by a sitting Supreme Court judge — has already finalised some names for judicial members that were sent to the government in October 2020.

“This selection was made pursuant to an advertisement that was issued for eight vacancies in June 2020. However, the government is yet to take a final call on these recommendations,” sources added.

Rajiv Manglik, secretary of AFT Bar Association, told ThePrint that the inordinate delay by the government to make new appointments is the reason why the AFT benches continue to work without having a complete strength.

“The government must begin the process of appointment at least six months before a vacancy arises,” Manglik said.

‘Govt treating armed forces personnel as second rate citizens’ 

According to Manglik, the government has failed to make sure its armed forces get speedy justice. 

When cases from high courts were transferred to AFT, the oldest pending case had been filed 13 years before. The situation hasn’t improved with AFT’s establishment where the oldest case pending dates back to 2010, Manglik said, adding that it takes five years for pension matters to get adjudicated.

“Government is treating armed forces personnel as second rate citizens. Members of the forces are not permitted to make unions and associations, therefore, for them AFT is the only platform to raise their voice. However, their right for redressal of grievances through the judiciary is also not being met,” he added. 

A top military lawyer, who didn’t want to be named, told ThePrint, “Around the time AFTs were being set up, there were about 9,000 pending cases in civil courts and now there are about 19,000 pending cases after the creation of AFTs. Hence, the pendency has rather increased on creation of AFT.”

‘Up to govt if it wants tribunals to function effectively’

Major Navdeep Singh (retired), advocate, Punjab & Haryana High Court told ThePrint, “The shortage of members affects all tribunals, not only AFT.”

“The rules for tribunals promulgated by the government compromising their independence were declared unconstitutional by the SC and still certain applications for clarification are pending in the court, thereby leading to delay in appointments,” he said.

Lt. Gen. H.S. Panag (retired), who had been a member of AFT, Chandigarh bench, told ThePrint that it is entirely up to the government whether it wants the tribunals to function effectively. 

“I have seen in the past too that even after the selection process, the final approval from the government was inordinately delayed. Moreover, after the initial years, the litigation started going up, not only because the bureaucracy sat on the implementation of AFT judgments, but challenged several of them in the Supreme Court,” he added.