By Akanksha Sharma
“This country has not seen and probably will never know the true level of sacrifice of our veterans. As a civilian I owe an unpayable debt to all our military. Going forward let’s not send our servicemen and women off to war or conflict zones unless it is overwhelmingly justifiable and on moral high ground.”
–Thomas M. Smith[1]
The Armed Forces Tribunal is a military tribunal in India. It arose because there was no provision for military personnel to exercise a meaningful right of appeal. Their complaints and petitions were decided in-house at the level of service headquarters or at best by the defence ministry.
The Tribunal generally means a person or institution having an authority to judge, Adjudicate or to regulate disputes. To overcome the situation that arose due to the pendency of cases in various Courts, Tribunals have been established under different statutes.
The Tribunals therefore perform an important role in judicial mechanism. They take a load off the already overburdened courts.
The Armed Forces Tribunal was established in 2009 under the Armed Forces Tribunal Act, 2007. In 1999, the Law Commission’s 169th report stated that disciplinary and service matters required quick resolutions and proposed a special tribunal for the military and paramilitary forces.
Armed Force Tribunal Act, 2007
The preamble of the Armed Force Tribunal Act states:
“An act to provide for the adjudication or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 and also to provide for appeals arising out of orders, findings or sentences of court martial held under the said acts and for matters connected therewith or incidental thereto.”
This Tribunal was given powers under this Act to appeal against any decision, order or sentence passed by a court martial.
This Tribunal can pass judgements on complaints and disputes on commission, appointments, enrolments and conditions of service to Army Act, 1950, The Navy Act, 1957 and the Air Force Act, 1950. The Tribunal consists of:
- Judicial Members – These are the retired High Court Judges
- Administrative Members – These are the retired members of the armed forces who have held the rank of Major General.
What is Armed Forces Tribunal?
The Armed Forces Tribunal is a military tribunal of India. It was established on 8th August 2009 and is a statutory body set up under the Armed Forces Tribunal Act, 2007.
What are the powers of the Armed Forces Tribunal?
- The Tribunal shall exercise all the powers and authority exercisable under this Act against any appeal, order or sentence passed by the Court martial.
- Aggrieved person may prefer an appeal to The Armed Forces Tribunal and within prescribed time.
- The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary.
- If sentence is found to be illegal or unjust the Tribunal may-
- Transmit the whole or any part of the sentence, with or without conditions
- Reduce the punishment awarded
- Lessen such punishment to any lesser punishment or enhance the sentence awarded by the court martial
- The Tribunal may release the appellant, if the sentence to imprisonment on parole with or without conditions; suspended a sentence of imprisonment; or pass any other order.
- Notwithstanding any other provisions in this Act, for the purpose of jurisdiction and powers, the Tribunal shall be deemed to be a criminal court for the purpose of relevant sections of the Indian Penal Code and Chapter XXVI of the Code of Criminal Procedure, 1973.
What is the territorial jurisdiction of the Tribunal?
The Territorial Jurisdiction of the Regional Benches shall follow. Its principal bench is in New Delhi and regional benches are at:
- Chandigarh Bench (Punjab, Haryana, Himachal Pradesh and Chandigarh itself)
- Lucknow Bench (Uttar Pradesh and Uttarakhand)
- Kolkata Bench (West Bengal, Bihar, Jharkhand, Orissa and Andaman and Nicobar Islands)
- Guwahati Bench (North- East Region)
- Chennai Bench (Tamil-Nadu, Andhra Pradesh and Pondicherry)
- Kochi Bench (Kerala, Karnataka and Lakshadweep)
- Mumbai Bench (Maharashtra and Gujarat)
- Jaipur Bench (Rajasthan)
- Jabalpur Bench (Madhya Pradesh and Chhattisgarh)
- Jammu Bench (Jammu and Kashmir)
Who Can Appeal Before the Armed Forces Tribunal?
- An aggrieved person by the court martial order, decision or finding can appeal before the Armed Forces Tribunal.
- The Tribunal can also dismiss the appeal if the court martial findings are found to be justified.
- The Tribunal can allow an appeal against conviction.
- Any appeal by a person against a decision given by the tribunal can only be taken up in the Supreme Court.
Case Laws
- Union of India & Ors Vs. Major General Shri Kant Sharma & Anr.[2]
Aggrieved cannot challenge both the orders of AFT and High Court in one joint appeal-
If the High Court entertains a petition with power of High Courts to issue certain writs of the Indian Constitution against orders of Armed Force Tribunal in matters of appeal against the Court martial, there is an anomalous situation for the aggrieved person in praying relief from the court.
Andhra Pradesh High Court and Allahabad High Court had not entertained the petitions under Article 226 in The Constitution of India 1949 but directed the petitioners to seek spot under Sections 30 and 31 of the Act.
Aggrieved persons are given liberty to avail the remedy under section 30 when they appeal to the Supreme Court with just leave to appeal under Section 31 and if necessary to file petition.
- Colonel A.D. Nargolkar Vs. Union of India & Ors.[3]
Decisions by the Armed Force Tribunal would be amenable to judicial review by High Court-
In this case Supreme Court observed:
The Indian Constitution takes away the only administrative supervisory jurisdiction of the High Court over the Armed Forces Tribunal under Article 227(4) and does not impact the judicial supervisory jurisdiction over the AFT.
The question pertaining to the maintainability of the petitions is answered in favour of petitioners and held that orders passed by the Armed Force Tribunal are maintainable.
- A.Shihabudeen Vs. Principal Controller of Defence[4]
- It is the duty of Tribunal to execute its orders –
In this case Supreme Court observed:
It is the duty of the Tribunal to execute its orders by initiating coercive proceedings under Section 29 for which it has the authority under Section 19 in the Contempt of Court Act, 1971.
The petitioner is given freedom to file contempt application before the Tribunal and is directed to entertain the same, issue notice and proceed with action against the respondents, if the compliance is not reported to it.
Tribunal is directed to follow the same procedure applicable to the Central Administrative Tribunal in contempt matters.
- Brig. (Retd.) Surinder Singh Vs. Union of India and Anr.[5]
A Judge or Member of Tribunal is not obliged to rescue himself from hearing on mere allegations of bias with lacking in substances
In this case Supreme Court observed:
Keeping in view the limited jurisdiction of court in exercise of powers of judicial review and also the decision taken by the Tribunal not to transfer the case is on the fact that there is no real likelihood of bias.
Only a reasonable suspicion is alleged which takes human probabilities and ordinary course into consideration, it would not warrant any interference of the court in exercise of its supervisory jurisdiction under Article 226 of the Constitution of India.
- Dinesh Sharma Vs. The Union of India & Amp Ors.[6]
Availability of statutory alternative remedy for armed forces-
It is proposed to enact a new legislation by constituting an Armed Forces Tribunal for adjudication of complaints and disputes regarding service matters and appeals arising out of the verdicts of the court- martial of the members of the three services (Army, Navy and Air Force) to provide for quicker and less expensive justice to the members.
An independent Armed Forces Tribunal will fortify the trust and confidence amongst members of three services.
Has the Armed Forces Tribunal emerged as an effective justice doer and remedy provider?
The problem of delay in adjudication of disputes between members of an armed force and the force in Civil Courts led to the establishment of the Armed Forces Tribunal.
The aspiration of service personnel who want to get their grievances met by a Tribunal specially designed for them have remained unmet. The number of cases pending before various benches exceeded 16,000 as on October 1 this year.
With a sanction of 17 benches in 11 locations across India, the ATF currently operates with just 4 benches in 3 locations with almost 19,000 cases awaiting for final adjudication. Some of the undecided cases were filed 11 years ago.
There are various reasons for this sorry state of affairs. The main problem is shortage of benches as against the sanctioned strength of 34 members only four judicial and seven expert members are occupied.
Another hurdle is performance and disposal of cases by the benches even when they are functioning. It was observed that cases being taken up for hearing were only taken up till lunch time. So, judicial timings were not being fully utilized.
Another reason was lack of faith and confidence among the litigants about the efficiency of the Tribunal. This was because of non- implementation of the final orders which could have provided relief to the litigants. There were many more reasons.
The judgement in the Roger Mathew case dealt with the powers of the high court over AFT verdicts. It had ruled that “writ jurisdiction under article 226 does not limit the powers of the High Courts expressly or by implication against military or armed forces disputes.
The limited ouster made by Article 227(4) only operates under administrative supervision by the High Court review. Article 136(2) prohibits direct appeals before the Supreme Court against the judicial review exercised by the High Court under Article 226”.
This year in January the government filed an application, seeking clarification on a few directions relating to service rules. Meanwhile experts said that the creation of AFT didn’t really help much in disposing of problems of armed forces personnel, who are being treated as “second rate citizens”.
They also said that it is completely up to the government whether it wants the Tribunals to function effectively.
References
- jagranjosh.com
- aftdelhi.nic.in
- theprint.in
- drishtiias.com
- The Indian Evidence Act, 1872
- Code of Criminal Procedure, 1973
- Quote by Thomas M Smith available at goodreads.com (Last Visited on July 5th 2021) ↑
- Union of India & Ors Vs. Major General Shri Kant Sharma & Anr [CIVIL APPEAL NO. 7400 OF 2013] ↑
- Colonel A.D.Nargolkar Vs. Union of India & Ors. [Civil Appeal No. 10686 of 2018] ↑
- .Shihabudeen(Ex Naik. 29883 17-Vs. Principal Controller of Defence [WP (AFT). No. 37433 of 2010(S)] ↑
- Brig. (Retd.) Surinder Singh Vs. Union Of India And Another [CWP No. 3249 of 2013] ↑
- Dineh Sharma (Ex-Nayak Honorar Vs. The Union Of India & Amp; Ors [CWJC No. 17959 of 2009] ↑