Armed Forces Tribunal Act, 2007 became operational by 2009. An amendment to the Act was proposed by way of Armed Forces Tribunal (Amendment) Bill, 2012. This presentation is a study of the changes proposed and also a resume of a few other aspects which warrant consideration and deserve changes.

1. Armed Forces Tribunal
(Amendment) Bill, 2012

2. Maj Gen Nilendra Kumar
Director
Amity Law School, Noida
and
former Judge Advocate General
(Army)

3. Based on a presentation before
the Parliamentary Standing
Committee on Defence on 18th
December 2012 and subsequent
analysis.

4. Views of experts and stakeholders
should be considered and given
due weight prior to deciding any
change in the statutory law.

5. The Bill seeks to make two changes
to the Armed Forces Tribunal Act,
2007.

6. The two changes have been
discussed in this presentation in
the shape of two issues.

7. ISSUE
No. 1

8. The Bill has proposed two changes
in the AFT Act, 2007.

9. Amendment
to
Section 8

10. Section 8
concerns
term of office
of
Chairperson or Member

11. The proposal is to increase
(a) the age of retirement of
chairperson from 65 to 67 years
if he is a Chief Justice of a
High Court.
(b) the age of retirement of Judicial
Member from 65 to 67 years.

12. Judicial Members are retired High
Court Judges.

13. Administrative Members are Maj
Gen/equivalent or above who have
held the rank for three years or
more, or a Judge Advocate
General who has held the post for
at least one year.

14. Secondly the term of office
increased from four to five years.

15. COMMENTS
Earlier the members were eligible
For re-appointment but not so
under the proposed Bill.

16. Hence, the Bill seeks to do away
with the policy to allow reappointment for another term to
those who may be so eligible.

17. The moot issue is
what’s the need?

18. Is there adequate justification for
the change?

19. COMMENTS
The proposed amendment
providing for extension of tenure
from four to five years would :

20. a)
Bring in complacency in the
members giving them security of
tenure. Irrespective of their
performance they would be
allowed to serve for a longer
duration.

21. 1.
Records and data about the
actual performance calls for a
critical study.

22. Disposal
Rate of decided needs to be
examined.
2. Number of cases decided (in a
month or year).
3. Quality of judgments. How
many orders were later stayed
by the Supreme Court or
allowed in appeal by High
Courts or reversed.

23. 4.
Adjournments allowed. That
would reflect the time taken or
speed of disposal of cases.

24. b) The amendment sought may be
repugnant to the continued zest
for efficiency.

25. Yet another drawback is that an
impression may be formed that
having once taken over as a
member no further re-appointment
is allowed. So where is the need
to perform?

26. c) The change proposed would
make it impermissible even for
those who are appointed a
member at a relatively young
age by disqualifying them to
continue as such by reappointment.

27. Another significant change
now proposed in the Bill is to
introduce different ages of
retirement for judicial and
administrative members.

28. Why different ages for retirement
for judicial and administrative
members?

29. Military personnel are expected to
be generally in better health. Also
they are physically and mentally
agile. Why the Tribunal be
deprived of their experience and
caliber?

30. Hence, there is little logic in retiring
them early.

31. Also, why such a hurry to change
the existing law?

32. Too short a period has elapsed to
undertake such a major change.

33. AFT started functioning in 2009.
Now the proposed Bill implies that
the law is proposed to be changed
in three years.

34. Hence, the amendment at issue No
1 to section 10 of the AFT Act does
not appear to be justified.

35. However, a question arises as to
how to manage deficiencies and
vacant posts?

36. The process of advertisement and
notice calling for members needs to
be efficiently managed.

37. Suggestion
1. Better management by way of
prompt identification, notification
and selection of members.

38. 2. The benches of AFT are at the
same location as High Court.
Hence, motivate attract and
invite/encourage serving Judges
to apply early towards the end
of their service.

39. Approach the retiring Judges
of the High Courts well in time
to attract them to apply for
membership of the Tribunal.

40. Issue No 2
Amendment to Section 19

41. The proposed amendment
envisages the provisions of the
Contempt of Court Act, 1997 to
have effect in the case of the AFT
as regards jurisdiction, powers
and authority.

42. But the proposed amendment is
silent with regard to
(a) Definition of contempt
(b) Exceptions or defences
available to one who is sought
to be proceeded against
(Sections 3 to 7)

43. (c)
(d)
Appeals (section 19)
Power to make Rules (Section
23)

44. What is meant by contempt?

45. Ingradients or elements of the
crime should be clear and well
defined.

46. Would there be any valid defences
available to the one charged with
contempt? If so, what?

47. Would one found guilty and
convicted get any right to appeal.
If so, when, how and to whom?

48. The existing section concerning
Rule making power does not cover
such an aspect.

49. Such substantial issues cannot be
covered by implication.

50. As such, amendment to Section 19
also warrants a re-look.

51. This opportunity could be taken to
discuss some other areas where a
re-look at the AFT Act appears
warranted.

52. Other major issues that need to be
covered.

53. Point No. 1
Power of Chairperson under Section
27 calls for a review by way of clear
enunciation.

54. The power relates to transfer of
cases from one bench to another.

55. Power on a judicial matter should
not be provided to be exercised in
an administrative manner.

56. This power to transfer matters from
one bench to another should be
invested in a bench of minimum
three members.

57. Chairperson should not be allowed
to exercise such a power “on his
own motion or without notice”.

58. Point No. 2
Sections 30 and 31concern Appeal
and Leave to Appeal

59. The decision of the Supreme Court
on Union of India V Brigadier PS
Gill, (2012) 4 SCC 463 has shown
a major need for a discussion.

60. Only mode to file an appeal under
the Act to the Supreme Court is
either by way of certificate obtained
from the AFT or by leave obtained
from the Supreme Court under
section 31.

61. Scheme of Section 31 provides
that an application for grant of
certificate from the AFT, before
approaching the Supreme Court
for grant of leave to file an appeal.

62. Thus the provision to a statutory
appeal is really not present.
Hence, need for suitable
amendment.

63. Point No. 2
Delhi High Court decision dated
26th April 2011 in the case of
Colonel AD Nargolkar V Union of
India.
(2011) ILR 4 Delhi 114,
179 (2011) DLT 447

64. Decision
by
Justice Pradeep Nandrajog

65. Decisions by the Armed Forces
Tribunal would be amenable to
judicial review by High Court under
Article 226 as also under Article
227 of the Constitution of India.

66. Another major deficiency in the
AFT Act.

67. Point No. 3
Deletion of the exclusionary clause
in section 2(0) which deprives a
suitable remedy to the cases of
those aggrieved by way of action
under Presidential pleasure
doctrine, transfers, postings, leave
denial and Summary Court Martial
verdicts of less than dismissal.

68. Point No. 4
A PIL filed before the Punjab and
Haryana High Court has highlighted
non-compliance by the Union
Government on the orders of the
Tribunal in about 3000 cases.

69. It was alleged that the MoD has
refused to implement the orders of
the Tribunal even upheld by the
Supreme Court.

70. On 12 December 2013, the High
Court has issued notice to the
Union Government.

71. Point No. 5
The Tribunal transacts its
proceedings in English. Such a
practice keeps its deliberations
beyond majority of the litigants who
belong to the non-officers category
and are not conversant with the
language.

72. Point No. 6
Officers who have held the post
of the JAG for minimum one year
should be eligible to serve as
Judicial Member and not
Administrative Member as is the
current position.

73. Point No. 7
Absence of a Code of Conduct for
the Chairperson and members.

74. The same is needed to avoid bias,
prejudice and conflict of interest.

75. The members particularly
Administrative Members not
having held judicial posts are not
familiar with restraints and
prohibitions expected in a Judge.

76. Therefore, a piecemeal review of
the AFT Act ignoring substantial
aspects warranting detailed
scrutiny may be avoided.

77. Recommendation
A complete and wholesome view
should be taken of the AFT Act.

78. CONCLUSION
An effective tribunal composed of
competent members adhering to
fair procedures and armed with
requisite powers with alone inspire
confidence amongst the litigants.