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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
LEGAL ARTICLE
BIAS & PREJUDICES - CONFLICT OF INTEREST - MEMBERS OF THE ARMED FORCES TRIBUNAL
Maj. Gen. Nilendra Kumar

Armed Forces Tribunal has been set up under the Armed Forces Tribunal Act, 2007 (in short AFTA) 1 . The principal Bench and a number of other Benches have already started functioning. The Tribunal has been set up for the adjudication of complaints and disputes regarding service matters and appeals arising out of the verdicts of the courts martial to provide for quicker and inexpensive justice to the members of the Armed Forces of the Union . AFTA carries elaborate provisions relating to establishment, jurisdiction, composition, procedure and appeal against its decision, etc.

The Act lays down that "Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under Article 226 or 227 of the Constitution) in relation to all service matters" 2 . Similarly it shall exercise all the jurisdiction, powers and authority in relation to appeals against any order, decision, finding or sentence passed by a court martial 3 . The Tribunal also enjoys potent powers to deal with its contempt 4 .

Armed Forces Tribunal is the last and Apex Court for all matters relating to serving military personnel. Except for an appeal to the Supreme Court, its verdict shall be final. As such, its decision would have a great bearing on discipline and morale of the affected personnel. The very nature of the jurisdiction is thus closely connected to national defence having a vital impact on safety and security of the country.

Armed Forces Tribunal is headed by a former Judge of the Supreme Court. Former Judges of High Courts occupy office as judicial members 5 . Officers who have held the rank of Major General and equivalent for at least three years are qualified for appointment as an administrative member. An officer who has served for not less than one year as Judge Advocate General in the Army, Navy or Air Force and is not below the rank of Major General, Commodore and Air Commodore respectively is also eligible to be considered for appointment as an administrative member 6 .

Every Bench of the Tribunal shall consist of at least one judicial member and one administrative member 7 . The Tribunal shall have the power to lay down and regulate its own procedure 8 . All proceedings before the Tribunal shall be judicial proceedings 9 . An administrative member has the same role, authority, power and responsibility as his judicial counterpart.

The Supreme Court of India had held in Pareena Swarup's case 10 that, "the independence and impartiality are to be secured not only for the court but also for the tribunals and their members, though they do not belong to the "judicial service" but are entrusted with judicial powers."

United Nations Basic Principles on the Independence of Judiciary expect that, "Judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary." According to Justice H.R. Khanna, "It is an essential requisite for a judge to acquire a certain amount of detachment and discernment. By virtue of their long experience and training, the chairperson and judicial members are expected to be competent to maintain judicial independence and impartiality. They show requisite care and caution to maintain a distance and avoid any impression of favour or bias."

As compared to the judges, administrative members hail from a different background. Because of their senior rank and status together with long years of military service they become used to a certain way of life, often characterized as service ethos. They are also entitled to certain perks and privileges of office. Having become used to an increase in perks as one rises in military rank hierarchy, it would require a deliberate effort to do without them. Acceptance of such perks or facilities would be contrary to laid down provisions.

Senior Generals form a class which takes pride in close contact with regimental and unit affiliations. The old connections and ties of prestigious colleges, Sainik Schools, Rashtriya Indian Military College (RIMC), National Defence Academy and schools of instruction, etc. are nurtured and taken pride in. Close friendship and bondage is developed with colleagues and brother officers. Instances are not uncommon when grave infractions have been ignored and not reported primarily to avoid bringing bad name to the unit. Such connections and bonds must find no place in their decisions while sitting on the Tribunal Benches.

For the sake of judicial propriety, there should be no place for a cloud of suspicion to exist that favour, bias or prejudice has overshadowed free, impartial and objective considerations. Instances are not uncommon when a judge in the higher judiciary has recused oneself from a case as unqualified to perform legal duties because of a possible lack of impartiality. During the military career such parallels are rarely encountered. Hence, proper guidance and counselling coupled with moral courage are needed on the part of administrative members.

Union of India would be a party before the Tribunal in almost all cases. The subject- matter would relate to the decision of the authorities which come to be challenged. An administrative member in his previous 'avatar' as an Adjutant General, Military Secretary or Corps Commander may have himself dealt with the subject- matter of dispute before the Tribunal. They must show utmost care to disabuse their minds and distance themselves from any favour or tilt towards their previous colleagues or view points, or where required, should decline to sit on such a Bench.

A slight error or lack of discretion on the part of an administrative member may invite an allegation of impropriety and ultimately result in a verdict being set aside and thereby a miscarriage of justice. A conflict of interest becomes corruption when an official uses his position of influence to enhance his personal financial interests 11 . Suitable guidelines forming code of conduct for the members of the AFT may be framed with regard to:

  1. Use of combatant, sahayaks, cooks, drivers, other personnel or working parties.
  2. Use of officers mess, club or institute facilities, golf club, accommodations, and acceptance of hospitality thereat.
  3. Use of military staff car and other vehicles, air crafts and ships.
  4. Use of government or regimental property or resources.
  5. Participation in raising day, corps day functions and re-unions.
  6. Membership of Sainik School, RIMC, Military School, Regimental Corps informal/formal bodies and get-together.
  7. Courses and NDC get-together.

The officers selected to hold post of administrative members must be called to attend to a course and programme on ethical and judicial norms. Such a course can be designed and held at the National Judicial Academy , Bhopal or any similar institution and its syllabus based on specially drafted case studies, group discussions apart from lectures by eminent jurists. Sensitivity of this topic is not merely confined to the administrative members but also extends to a large number of serving personnel, ex-servicemen and family members who approach the Tribunal seeking reliefs. Any lack of discretion or lapse, though unintentional, may invite disqualification or even setting aside of a decision. This utmost care is also to be ensured by those who may be in the category of witnesses or lawyers engaged to appear before the Tribunal.

----

 

Act 55 of 2007

  1. Section 14(1) of the AFTA
  2. Section 15(1) of the AFTA
  3. Section 19 of the AFTA
  4. Section 6(1) and 2 of AFTA
  5. Section 6(3) of AFTA
  6. Section 5(3) of AFTA
  7. Section 23(1) of AFTA
  8. Section 36 of AFTA (2008) 14 SCC 107
  9. PUCL v. Union of India , (2003) 4 SCC
 
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