Armed Forces tribunal Act

THE ARMED FORCES TRIBUNAL ACT 2007

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.
BE it enacted by Parliament in the Fifty-eighth Year of the Republic of India as follows :-

CHAPTER 1

PRELIMINARY
1. Short title and commencement : (1) This Act may be called the Armed Forces Tribunal Act, 2007.

(2) It shall come into force on such date as the Central Government may, by notification, appoint.
2. Applicability of the Act : (1) The provisions of this Act shall apply to all persons subject to the army Act, 1950, (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950)
(2) This Act shall also apply to retired personnel subject to the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950) including their dependants, heirs and successors, in so far as it relates to their service matters.
3. Definitions : In this Act, unless the context otherwise requires,—
(a) “Administrative Member” means a member of the Tribunal who is not a Judicial Member within the meaning of clause (g);
(b) “application” means an application made under sub-section (2) of section 14; 
(c) “appointed day” means the date with effect from which the Tribunal is established by notification under section 4;
(d) “Bench” means a Bench of the Tribunal;
(e) “Chairperson” means the Chairperson of the Tribunal;
(f) “court martial” means a court martial held under the Army Act, ‘1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) including the disciplinary courts constituted under the Act or the Air Force Act, 1950; (45 of 1950)
(g) “Judicial Member” means a member of the Tribunal appointed as such under this Act, and includes the Chairperson, who possesses any of the qualifications specified in sub-section (2) of section 6;
(h) “Member” means a member (whether Judicial or Administrative) of the Tribunal and includes the Chairperson;
(i) “military custody” means the arrest or confinement of a person according to the usages of the service and includes naval or air force custody;
(j) “notification” means a notification published in the Official Gazette; 
(k) “prescribed” means prescribed by rules made under this Act;
(l) “President” means the President of India;
(m) “rules” means the rules made under this Act;
(n) “service” means the service within or outside India;
(o) “service matters”, in relation to the persons subject to the Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950) mean all matters relating to the conditions of their service and shall include—
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions;
(iii) summary disposal and trials where the punishment of dismissal is awarded;
(iv) any other matter, whatsoever, but shall not include matters relating to—
(i) orders issued under section 18 of the Army Act, 1950 (46 of 1950) sub-section (1) of section 15 of the Navy Act, 1957 (62 of 1957) and section 18 of the Air Force Act, 1950; (45 of 1950) and
(ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950);
(iii) leave of any kind;
(iv) summary court martial except where the punishment is of dismissal or imprisonment for more than three months;
(p) “summary disposals and trials” means summary disposals and trials held under the Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950; (45 of 1950)
(q) “Tribunal’: means the Armed Forces Tribunal established under section 4.
CHAPTER II
ESTABLISHMENT OF TRIBUNAL AND BENCHES THEREOF
4. Establishment of Armed Forces Tribunal : The Central Government shall, by notification, establish a Tribunal to be known as the Armed Forces Tribunal to exercise the jurisdiction, powers and authority conferred on it by or under this Act.
5. Composition of Tribunal and Benches thereof : (1) The Tribunal shall consist of a Chairperson, and such number of Judicial and Administrative Members as the Central Government may deem fit and, subject to the other provisions of this Act, the jurisdiction, powers and authority of the Tribunal may be exercised by Benches there of.
(2) Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Administrative Member.
(3) Notwithstanding anything contained in sub-section (1), the Chairperson— (a) may, in addition to discharging the functions of a Judicial Member of the Bench to which he is appointed, discharge the functions of an Administrative Member of any other Bench;
(b) may transfer a Member from one Bench to another Bench;
(c) may, for the purpose of securing that any case or cases, which having regard to the nature of the questions involved, requires or require, in his opinion, or under the rules made under this Act, to be decided by a Bench composed of more than two members, issue such general or special orders, as he may deem fit:
Provided that every Bench constituted in pursuance of this clause shall include at least one Judicial Member and one Administrative Member.
(4) Subject to the other provisions of this Act, the Benches of the Tribunal shall ordinarily sit at Delhi (which shall be known as the Principal Bench), and at such other places as the Central Government may, by notification, specify.
6. Qualifications for appointment of Chairperson and other Members : (1) A person shall not be qualified for appointment as the Chairperson unless he is a retired Judge of the Supreme Court or a retired Chief Justice of a High Court.
(2) A person shall not be qualified for appointment as a Judicial Member unless he is or has been a Judge of a High Court.
(3) A person shall not be qualified for appointment as an Administrative Member unless—
(a) he has held or has been holding the rank of Major General or above for a total period of at least three years in the Army or equivalent rank in the Navy or the Air Force; and
(b) he has served for not less than one year as Judge Advocate General in the Army or the Navy or the Air Force, and is not below the rank of Major General, Commodore and Air Commodore respectively.
Explanation.- When a serving person is appointed as an Administrative Member, he shall have retired from service prior to assuming such appointment.
7. Appointment of Chairperson and other Members : (1) Subject to the provisions of this section, the Chairperson and other Members of the Tribunal shall be appointed by the President: Provided that no appointment under this sub-section shall be made except after consultation with the Chief Justice of India.
(2) The President may appoint one or more Members of the Tribunal to be the Vice- Chairperson, or, as the case may be, the Vice-Chairpersons, thereof.
8. Term of office : The Chairperson or a Member shall hold office for a term of four years from the date on which he enters upon his office and shall be eligible for re-appointment:
Provided that no Chairperson shall hold office as such after he has attained,—
(a) in case he has been a Judge of the Supreme Court, the age of seventy years; and
(b) in case he has been the Chief Justice of a High Court, the age of sixty-five years:
Provided further that no other Member shall hold office as such Member after he has attained the age of sixty-five years.
9. Resignation and removal : (1) The Chairperson or a Member may, by notice in writing under his hand addressed to the President, resign his office:
Provided that the Chairperson or a Member shall, unless he is permitted by the President to relinquish his office sooner, continue to hold office until the expiry of three months from the date
of receipt of such notice or until a person duly appointed as his successor enters upon his office
or until the expiry of his term of office, whichever is the earliest.
(2) The Chairperson or a Member shall not be removed from his office except by an order
made by the President on the ground of proved misbehaviour or incapacity after an inquiry made
by a sitting Judge of the Supreme Court in which such Chairperson or other Member had been
informed of the charges against him and given a reasonable opportunity of being heard in respect
of those charges.
(3) The Central Government may, by rules, regulate the procedure for the investigation of
misbehaviour or incapacity of the Chairperson or other Member referred to in sub-section (2).
10. Salaries, allowances and other terms and conditions of service of Chairperson
and other Members : The salaries and allowances payable to, and the other terms and
conditions of service (including pension, gratuity and other retirement benefits) of, the
Chairperson and other Members shall be such as may be prescribed by the Central Government:
Provided that neither the salary and allowances nor the other terms and conditions of
service of the Chairperson and other Members shall be varied to their disadvantage after their
appointment.
11. Prohibitions as to holding of offices, etc., by Chairperson or Member on ceasing
to be such Chairperson or Member : On ceasing to hold office—
(a) the Chairperson shall be ineligible for further employment either under the Government
of India or under the Government of a State;
(b) a Member other than the Chairperson shall, subject to the provisions of this Act, be
eligible for appointment as a member of any other Tribunal but not for any other employment
either under the Government of India or under the Government of a State; and
(c) the Chairperson or other Members shall not appear, act or plead before the Tribunal.
12. Financial and administrative powers of Chairperson : The Chairperson shall
exercise such financial and administrative powers over the Benches as may be prescribed:
Provided that the Chairperson shall have the authority to delegate such of his financial and
administrative powers as he may think fit to any other Member or any officer of the Tribunal,
subject to the conditions that such Member or officer shall, while exercising such delegated
powers, continue to act under the direction, control and supervision of the Chairperson.
13. Staff of the Tribunal : (1) The Central Government shall determine the nature and
categories of the officers and other employees required to assist the Tribunal in the discharge of
its functions and provide the Tribunal with such officers and other employees as it may think fit.
(2) The salaries and allowances payable to, and the other terms and conditions of service of
the officers and other employees of the Tribunal shall be such as may be prescribed.
(3) The officers and other employees of the Tribunal shall discharge their functions under
the general superintendence of the Chairperson.
CHAPTER III
JURISDICTION, POWERS AND AUTHORITY OF THE TRIBUNAL
14. Jurisdiction, powers and authority in service matters : (1) 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 articles 226 and 227 of the
Constitution) in relation to all service matters.
(2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to
any service matter may make an application to the Tribunal in such form and accompanied by
such documents or other evidence and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied
after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such
application; but where the Tribunal is not so satisfied, it may dismiss the application after
recording its reasons in writing.
(4) For the purpose of adjudicating an application, the Tribunal shall have the same powers
as are vested in a Civil Court under the Code of Civil Procedure, 1908, (5 of 1908) while trying a
suit in respect of the following matters, namely—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872,
(1 of 1872) requisitioning any public record or document or copy of such record or document from
any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or deciding it exparte;
(h) setting aside any order of dismissal of any application for default or any order
passed by it exparte; and
(i) any other matter which may be prescribed by the Central Government.
(5) The Tribunal shall decide both questions of law and facts that may be raised before it.
15. Jurisdiction powers and authority in matters of appeal against court martial : (1)
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 under this Act in relation to
appeal against any order, decision, finding or sentence passed by a court martial or any matter
connected therewith or incidental thereto.
(2) Any person aggrieved by an order, decision, finding or sentence passed by a court
martial may prefer an appeal in such form, manner and within such time as may be prescribed.
(3) 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:
Provided that no accused person shall be so released if there appears reasonable ground
for believing that he has been guilty of an offence punishable with death or imprisonment for life.
(4) The Tribunal shall allow an appeal against conviction by a court
martial where
(a) the finding of the court martial is legally not sustainable due to any
reason whatsoever; or
(b) the finding involves wrong decision on a question of law; or
(c) there was a material irregularity in the course of the trial resulting in
miscarriage of justice,
but, in any other case, may dismiss the appeal where the Tribunal considers
that no miscarriage of justice is likely to be caused or has actually resulted to the
appellant:
Provided that no order dismissing the appeal by the Tribunal shall be passed
unless such order is made after recording reasons therefor in writing.
(5) The Tribunal may allow an appeal against conviction, and pass
appropriate order thereon.
(6) Notwithstanding anything contained in the foregoing provisions of this section, the
Tribunal shall have the power to—
(a) substitute for the findings of the court martial, a finding of guilty for any other offence
for which the offender could have been lawfully found guilty by the court martial and pass a
sentence afresh for the offence specified or involved in such findings under the provisions of the
Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950, (45 of
1950) as the case may be; or
(b) if sentence is found to be excessive, illegal or unjust, the Tribunal may—
(i) remit the whole or any part of the sentence, with or without conditions; (ii) mitigate the
punishment awarded;
(iii) commute such punishment to any lesser punishment or punishments mentioned in the
Army Act, 1950, (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950, (45 of
1950) as the case may be;
(c) enhance the sentence awarded by a court martial:
Provided that no such sentence shall be enhanced unless the appellant has been given an
opportunity of being heard;
(d) release the appellant, if sentenced to imprisonment, on parole with or without conditions;
(e) suspend a sentence of imprisonment;
(f) pass any other order as it may think appropriate.
(7) Notwithstanding any other provisions in this Act, for the purposes of this section, the
Tribunal shall be deemed to be a criminal court for the purposes of sections 175, 178, 179, 180,
193, 195, 196 or 228 (45 of 1860) of the Indian Penal Code and Chapter XXVI of the Code of
Criminal Procedure, 1973. (2 of 1974)
16. Re-trial : (1) Except as provided by this Act, where the conviction of a person by court
martial for an offence has been quashed, he shall not be liable to be tried again for that offence
by a court martial or by any other Court.
(2) The Tribunal shall have the power of quashing a conviction, to make an order
authorising the appellant to be retried by court martial, but shall only exercise this power when the
appeal against conviction is allowed by reasons only of evidence received or available to be
received by the Tribunal under this Act and it appears to the Tribunal that the interests of justice
require that an order under this section should be made:
Provided that an appellant shall not be retried under this section for an offence other than—
(a) the offence for which he was convicted by the original court martial and in respect
of which his appeal is allowed;
(b) any offence for which he could have been convicted at the original court martial
on a charge of the first-mentioned offence;
(c) any offence charged in the alternative in respect of which the court martial
recorded no finding in consequence of convicting him of the first-mentioned offence.
(3) A person who is to be retried under this section for an offence shall, if the Tribunal or
the Supreme Court so directs, whether or not such person is being tried or retried on one or more
of the original charges, no fresh investigation or other action shall be taken under the relevant
provision of the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force
Act, 1950 (45of 1950) as the case may be, or rules and regulations made there under, in relation
to the said charge or charges on which he is to be retried.
17. Powers of the Tribunal on appeal under section 15 : The Tribunal, while hearing
and diciding an appeal under section 15, shall have the power—
a) to order production of documents or exhibits connected with the proceedings
before the court martial;
b) to order the attendance of the witnesses;
c) to receive evidence;
d) to obtain reports from Court martial;
e) order reference of any question for enquiry;
f) appoint a person with special expert knowledge to act as an assessor; and
g) to determine any question which is necessary to be determined in order to do
justice in the case.
18. Cost :While disposing of the application under section 14 or an appeal under section
15, the Tribunal shall have power to make such order as to costs as it may deem just.
19. Power to punish for contempt : (1) Any person who is guilty of contempt of the
Tribunal by using any insulting or threatening language, or by causing any interruption or
disturbance in the proceedings of such Tribunal shall, on conviction, be liable to suffer
imprisonment for a term which may extend to three years.
(2) For the purposes of trying an offence under this section, the provisions of sections 14,
15, 17, 18 and 20 of the Contempt of courts Act, 1971 (70 of 1971) shall mutatis mutandis apply,
as if a reference therein to—
(a) Supreme Court or High Court were a reference to the Tribunal;
(b) Chief Justice were a reference to the Chairperson;
(c) Judge were a reference to the Judicial or Administrative Member of the Tribunal;
(d) Advocate-General were a reference to the prosecutor; and
(e) Court were a reference to the Tribunal.
20. Distribution of business among the Benches : The Chairperson may make
provisions as to the distribution of the business of the Tribunal among its Benches.
CHAPTER IV
PROCEDURE
21. Application not to be admitted unless other remedies exhausted : (1) The Tribunal
shall not ordinarily admit an application unless it is satisfied that the applicant had availed of the
remedies available to him under the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of
1957) or the Air Force Act, 1950 (45 of 1950) as the case may be, and respective rules and
regulations made thereunder.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the
remedies available to him under the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of
1957) or the Air Force Act, 1950, (45 of 1950) and respective rules and regulations—
(a) if a final order has been made by the Central Government or other authority or officer
or other person competent to pass such order under the said Acts, rules and regulations,
rejecting any petition preferred or representation made by such person;
(b) where no final order has been made by the Central Government or other authority or
officer or other person competent to pass such order with regard to the petition preferred or
representation made by such person, if a period of six months from the date on which such
petition was preferred or representation was made has expired.
22. Limitation : The Tribunal shall not admit an application—
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of
section 21 has been made unless the application is made within six months from the date on
which such final order has been made;
(b) in a case where a petition or a representation such as is mentioned in clause (b) of
sub-section (2) of section 21 has been made and the period of six months has expired thereafter
without such final order having been made;
(c) in a case where the grievance in respect of which an application is made had arisen
by reason of any order made at any time during the period of three years immediately preceding
the date on which jurisdiction, powers and authority of the Tribunal became exercisable under this
Act, in respect of the matter to which such order relates and no proceedings for the redressal of
such grievance had been commenced before the said date before the High Court.
(2) Notwithstanding anything contained in sub-section (1), the Tribunal may admit an
application after the period of six months referred to in clause (a) or clause (b) of sub-section (1),
as the case may be, or prior to the period of three years specified in clause (c), if the Tribunal is
satisfied that the applicant had sufficient cause for not making the application within such period.
23. Procedure and powers of the Tribunal : (1) The Tribunal shall not be bound by the
procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the
principles of natural justice and subject to the other provisions of this Act and any rules made
thereunder, the Tribunal shall have the power to lay down and regulate its own procedure
including the fixing of place and time of its inquiry and deciding whether to sit in public or in
camera.
(2) The Tribunal shall decide every application made to it as expeditiously as possible after
a perusal of documents, affidavits and written representations and after hearing such oral
arguments as may be advanced:
Provided that where the Tribunal deems it necessary, for reasons to be recorded in writing,
it may allow oral evidence to be adduced.
(3) No adjournment shall be granted by the Tribunal without recording the reasons justifying
the grant of such adjournment and cost shall be awarded, if a party requests for adjournment
more than twice.
24. Term of sentence and its effect on appeal : (1) The term of any sentence passed by
the Tribunal under clause (a) of subsection (6).of section 15 of this Act shall, unless the Tribunal
otherwise directs, be reckoned to commence on the day on which it would have commenced
under the Army Act, 1950, (46 of 1950) the Navy Act, 1957 (62 of 1957) or the Air Force Act,
1950 (45 of 1950) as the case may be, under which the court martial against which the appeal
was filed, had. been held.
(2) Subject to the provisions of sub-section (3), any sentence passed on an appeal from
the Tribunal to the Supreme Court in substitution for another sentence shall, unless the Supreme
Court otherwise directs, be reckoned to commence on the day on which the original sentence
would have commenced.
(3) Where a person who is undergoing sentence is granted stay of the operation of the said
sentence, either by suspension or otherwise, pending an appeal, the period during which he is so
released due to the sentence having been so stayed, shall be excluded in computing the term for
which he is so sentenced by the Tribunal or the Supreme Court, as the case may be.
25. Right of applicant or of appellant to take assistance of a legal practitioner and of
Government, etc., to appoint counsel :(1) A person making an application or preferring an
appeal to the Tribunal may either. appear in person or take the assistance of a legal practitioner
of his choice to present his case before the Tribunal.
(2) The Central Government or the competent authority, as may be prescribed, may
authorise one or more legal practitioners or any of its law officers to act as counsel and every
person so authorised by it may present its case with respect to any application or appeal, as the
case may be, before the, Tribunal.
26. Condition as to making of interim order : (1) Notwithstanding anything contained in
any other provisions of this Act or in any other law for the time being in force, no interim order
(whether by way of injunction or stay or in any other manner) shall be made on an application or
appeal, or in any proceeding relating thereto, unless- -
(a) copies of such application or appeal, as the case may be, and all documents in
support of the plea for such interim order are furnished to the party against whom such
application or appeal, as the case may be, is made or proposed to be made; and
(b) opportunity of being heard is given to the other party in the matter:
Provided that the Tribunal may dispense with the requirements of clauses (a) and (b) and
make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in
writing, that it is necessary so to do for preventing any loss being caused to the applicant or to the
appellant, as the case may be.
(2) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on an application or appeal or in any proceeding relating thereto
under sub-section (i), without—
(a) furnishing to such party copies of such application or appeal, as the case may be,
and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, and making an application to the
Tribunal for the vacation of such order and furnishing a copy of such application or appeal, as the
case may be, to the party in whose favour such order has been made or the counsel of such
party,
the Tribunal shall dispose of the application within a period of fourteen days from the date on
which it is received or from the date on which the copy of such application is so furnished,
whichever is later, or where the Tribunal is closed on the last day of that period, before the expiry
of the next working day; and if the application is not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry of the said next working day, stand
vacated.
27. Power of Chairperson to transfer cases from one Bench to another : On the
application of any of the parties and after notice to the parties concerned, and after hearing such
of them as he may desire to be heard, or on his own motion without such notice, the Chairperson
may transfer any case pending before one Bench for disposal, to, any other Bench.
28. Decision to be by majority : If the Members of a Bench differ in opinion on any point,
the point shall be decided according to the opinion of the majority, if there is a majority, but if the
Members are equally divided, they shall state the point Or points on which they differ and make a
reference to the Chairperson who shall either hear the point or points himself or refer the case for
hearing on such point or points by one or more of the Members of the Tribunal and such point or
points shall be decided according to the opinion of the majority of the Members of the Tribunal
who have heard the case, including those who first heard it.
29. Execution of order of Tribunal : Subject to the other provisions of this Act, and the
rules made thereunder, the order of the Tribunal disposing of an application shall be final and
shall not be called in question in any Court and such order shall be executed accordingly.
CHAPTER V
APPEAL
30. Appeal to Supreme Court : (1) Subject to the provisions of section 31, an appeal shall
lie to the Supreme Court against the final decision or order of the Tribunal (other than an order
passed under section 19):
Provided that such appeal is preferred within a period of ninety days of the said decision or
order:
Provided further that there shall be no appeal against an interlocutory order of the Tribunal.
(2) An appeal shall lie to the Supreme Court as of right from any order or decision of the
Tribunal in the exercise of its jurisdiction to punish for contempt: .
Provided that an appeal under this sub-section shall be filed in the Supreme Court within
sixty days from the date of the order appealed against.
(3) Pending any appeal under sub-section (2), the Supreme Court may order that—
(a) the execution of the punishment or the order appealed against be suspended; or
(b) if the appellant is in confinement, he be released on bail:
Provided that where an appellant satisfies the Tribunal that he intends to prefer an appeal,
the Tribunal may also exercise any of the powers conferred under clause (a) or clause (b), as the
case may be.
31. Leave to appeal : (1) An appeal to the Supreme Court shall lie with the leave of the
Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of
law of general public importance is involved in the decision, or it appears to the Supreme Court
that the point is one which ought to be considered by that Court.
(2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made
within a period of thirty days beginning with the date of the decision of the Tribunal and an
application to the Supreme Court for leave shall be made within a period of thirty days beginning
with the date on which the application for leave is refused by the Tribunal.
(3) An appeal shall be treated as pending until any application for leave to appeal is
disposed of and if leave to appeal is granted, until the appeal is disposed of; and an application
for leave to appeal shall be treated as disposed of at the expiration of the time within which it
might have been made, but it is not made within that time.
32.condonation : The Supreme Court may, upon an application made at any time by the
appellant, extend the time within which an appeal may be preferred by him to that Court under
section 30 or sub-section (2) of section 31.
CHAPTER VI
MISCELLANEOUS
33. Exclusion of jurisdiction of civil courts : On and from the date from which any
jurisdiction, powers and authority becomes exercisable by the Tribunal in relation-to service
matters under this Act, no Civil Court shall have, or be entitled to exercise, such jurisdiction,
power or authority in relation to those service matters.
34. Transfer of pending cases : (1) Every suit, or other proceeding pending before any
court including a High Court or other authority immediately before the date of establishment of
the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is
such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such
establishment within the jurisdiction of such Tribunal, stand transferred on that date to such
Tribunal.
(2) Where any suit, or other proceeding stands transferred from any court including a High
Court or other authority to the Tribunal under sub-section (1),—
(a) the court or other authority shall, as soon as may be, after such transfer, forward
the records of such suit, or other proceeding to the Tribunal;
(b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or
other proceeding, so far as may be, in the same’ manner as in the case of an application made
under sub-section (2) of section 14, from the stage which was reached before such transfer or
from any earlier stage or de novo as the Tribunal may deem fit.
35. Provision for filing of certain appeals : Where any decree or order has been made or
passed by any court (other than a High Court) or any other authority in any suit or proceeding
before the establishment of the Tribunal, being a suit or proceeding the cause of action whereon
it is based, is such that it would have been, if it had arisen after such establishment, within the
jurisdiction of the Tribunal, and no appeal has been preferred ‘against such decree or order
before such establishment or if preferred, the same is pending for disposal before any court
including High Court and the time for preferring such appeal under any law for the time being in
force had not expired before such establishment, such appeal shall lie to the Tribunal, within
ninety days from the date on which the Tribunal is established, or within ninety days from the date
of receipt of the copy of such decree or order, whichever is later.
36. Proceedings before Tribunal to be judicial proceedings : All proceedings before the
Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and
228 (45 of 1860) of the Indian Penal Code.
37. Members and staff of Tribunal to be public servants : The Chairperson, other
Members and the officers and other employees provided under section 13 to the Tribunal shall be
deemed to be public servants within the meaning of section 21 (45 of 1860) of the Indian Penal
Code.
38. Protection of action taken in good faith : No suit, prosecution or other legal
proceeding shall lie against the Central Government or against the Chairperson or any other
Member or any other person authorised by the Chairperson, for anything which is done in good
faith or intended to be done in pursuance of this Act or any rule or order made thereunder in the
discharge of official duties.
39. Act to have overriding effect : The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained, in any other law for the time being in
force or in any instrument having effect by virtue of any law other than this Act.
40. Power to remove difficulties : (1) If any difficulty arises in giving effect to the
provisions of this Act, the Central Government may, by order published in the Official Gazette,
make such provisions, not inconsistent with the provisions of this Act as appear to it to be
necessary or expedient for removing the difficulty:
Provided that no order shall be made under this section after the expiry of two years from
the date of commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid
before each House of Parliament.
41. Power of Central Government to make rules : (1) The Central Government may, by
notification, make rules for the purposes of carrying out the provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for all
or any of the following matters, namely:—
(a) the case or cases which shall be decided by a Bench composed of more than two
Members under clause (c) of sub-section (3) of section 5;
(b) the procedure under sub-section (3) of section 9 for the investigation of misbehaviour
or incapacity of Chairperson or other Member;
(c) the salaries and allowances payable to, and the other terms and conditions of service
of the Chairperson and other Members under section 10;
(d) the financial and administrative powers which the Chairperson may exercise over the
Benches of the Tribunal under section 12;
(e) the salaries and allowances payable to, and other terms and conditions of service of
the officers and other employees of the Tribunal under sub-section (2) of section 13;
(f) the form in which an application may be made under sub-section (2) of section 14, the
documents and other evidence by which such application shall be accompanied and the fee
payable in respect of the filing of such application or for the service of execution of processes;
(g) the other matter which may be prescribed under clause (i) of sub-section (4) of
section 14;
(h) the form and manner in which an appeal may be filed, the fee payable thereon and
the time within which such appeal may be filed under sub-section (2) of section 15;
(i) the rules subject to which the Tribunal shall have power to regulate its own procedure
under sub-section (1) of section 23;
(j) competent authority who may authorise legal practitioners or law officers to act as
counsel under sub-section (2) of section 25;
(k) any other matter which may be prescribed or in respect of which rules are required to
be made by the Central Government.
42. Power to make rules retrospectively : The powers to make rules under section 41
shall include the power to make such rules or any of them retrospectively from a date not earlier
than the date on which this Act shall come into operation but no such retrospective effect shall be
given to any such rule so as to prejudicially affect the interests of any person to whom such rule
may be applicable.
43. Laying of rules : Every rule made under this Act shall be laid, as soon as may be
after it is made, before each House of Parliament while it is in session, for a total period of thirty
days which may be comprised in one session or in two or more successive sessions, and if,
before the expiry of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or both Houses agree that
the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.

Maha Mrityunjai Mantra

OM Tryambakam Yajamahe Sugandhim Pushtivardhanam Urvarukamiva Bandhanam Mrityor Mukshiya Mamritat

WHAT AILS THE VALIENT INDIAN ARMY?

Rohit Kumar,
Advocate, High Court,
161, Pritam Nagar, Near Kabir Mandir X-ing, 
Allahabad-211001, Ph: +91-532-2233606,
Fax: +91-532-2231234, Mob; +91-94153-17013

 Of late their have been virtual upheavals not only in the media, the fourth Estate, but also in the Parliament about shortfall of the officers cadre in the Indian Army. In order to buttress my contention I wish to record that even the Chief of the Army Staff, General S Roy Choudhary has admitted that there is a shortfall of 12,500 officers in the present day Indian Army, which by any statistic meant that the Army was managing with the lack of the lower echelons comprising to the level of deficiency of 1/3rd of the officers cadre. Even lately General Khanna, Chief of the Desert Corps, somewhere in the Rajasthan Sector, had candidly admitted that Army was running short of the officers cadre which he attributed to the lack of perks and less enthusiasm of the youth of the country to don uniform, where not only hazard, but also grave risks to the life were part of the game which proposition I wish to contradict, but the same shall be done in the succeeding paragraphs. 

 It is imperative to recall that during the period when General KV Krishna Rao was the Chief of the Army Staff, presently a Governor of the turbulent State of Jammu & Kashmir, a question was raised by then Defence Minister of India on the trifling issue of why the cream of the society was not opting to enter the distinguished and adventurous job of defending the country’ as also moot question which came up as to why large number of disciplinary cases were cropping up leading to court Martial’s, mostly Summary Court Martial and also the result that large number of cases were going to the courts of law. General KV Krishna Rao as part of the establishment had relied upon gimmickry of statistical analysis, then attempted to satisfy the Raksha Mantri with the General’s bureaucratic note bearing No. 18899/AG/DV-I obviously forgetting that our forces are very different and special organisation which deals with the defence of the nation and to a great extent the survival of nation depends on the might of the armed forces, which includes moral as well as the best possible management of the human resources which/who lay down their lives for the cause in the name of profession. 

 None have bothered to look into the serious maladies which have continued to exist because of the firstly, antiquated system of judicial prudence Alien Rulers enacted Indian Army Act, 1911 which was meant for Indian subjects, when we were slaves, containing draconian provisions. When we won the independence Indian Government headed by late Pt. Jawaharlal Nehru, the Prime Minister of India, decided to retain the same Act, with same draconian provisions, except deleting the word ‘Indian’ and renaming it as ‘Army Act, 1950’ [hereinafter denoted to as the Act], secondly, the perks and emoluments of personnel donning uniform remain the same for decades till 1975-76 and thirdly due to changed situation and environment and creation of East and West Pakistan, country’s frontier got enlarged. This apart from hostile relationship with China on the North frontier created new frontiers with hostile climatic conditions which caused not only hazard to the lives of the troops but also exposed them to physical injuries and disabilities, fourthly, the corruption in the society and the feeling that one living in the peace area as a civilian during the job in a peaceful living condition but also such official could manage better living condition, and as such other perks and facilities available to the civilian counterparts and so on, which also became serious impediment in the thought process of the cream of the youth and obviously the youth preferred to have the first choice as IAS, IPS, IFS/Private Enterprises in the public sectors and so on. The armed forces were eighth choice. By the way, if statistics can be compiled it can be safely seen – nay – concluded that all those national leaders who in their proclamations from the party platform exhort the youths of the nation to join armed forces and as a ritual prays gallant services of the defenders of the nation, but the same very men who are at top of the party to the Government do never allow their own wards either to venture entering armed forces or even daring marrying their own daughters to be same gallant soldiers. 

 Now with my experience I wish to bring out salient features due to which today the cream of the society abhors joining the armed forces and if they do so it is only as a last recourse if they find that they have no other venue. According to my experience the basis reasons are LACK of PROPER JUDICIAL SYSTEM AND ITS MANAGEMENT.

(a), That armed forces have an altogether different system and identity. Consequently it has its own separate Act known as Army Act 1950, Rules as Army Rules 1954 and Defence service Regulations (Regulations for the Army) 1987 [hereinafter denoted as DSR (Army) 1987], as also the Government issues Army Instructions and Government policy letters. Similarly the Chief of the Army Staff issues Army orders, Army Headquarters policy letters and so on. Based on this, armed forces have their own courts of law which are known as General Court Martial [hereinafter denoted as GCM], Summary General Court Martial [hereinafter denoted as SGCM], District Court Martial [hereinafter denoted as DCM], Summary Court Martial [hereinafter denoted as SCM] which are known as Court Martial’s manned by Army officers with their service being minimum 2 years. Such men by and large do not have any legal background but a GCM can sentence a person subject to the Act to death penalty. 

(b), Apart from Court Martial’s, there are provisions under Sections 80, 83, 84 and 85 of the Act for summary disposal of the charges against a person subject to the Act by appropriate authority. 

(c), Conduct of the Court Martial’s have been recovered by way of rules framed in the Army Rules 1954 [hereinafter referred to as the Rules], but which are by and large not followed not only in letter but what to say of spirits, and in the majority wish of the top echelon prevails. highhandedness becomes the order of the day.

(d), Against any trial the accused person as a right to make a petition under section 164 of the Act, one before confirmation of the Court Martial’s proceedings and the other one after confirmation of the proceedings but the moment a Court Martial Proceeding is confirmed (save in the case of SCM proceeding which under Section 161 of the Act, does not require any confirmation) the accused, if sentenced to Jail imprisonment, is dumped in the jail without allowing him to avail the statutory provisions contained in Section 164 (2) of the Act. It is pertinent to highlight that even Para 365 (j) of the DSR (Army) 1987 has laid down that the petition under Section 164 of the Act shall be disposed of and all attempts should be made to dispose it of within 30 days, but it always remains in the cold storage, as such the person jailed keeps on languishing in jail and is barred from seeking judicial protection for want of rejection of his statutory petition preferred under Section 164 of the Act. 

(e), In any civilized nation, can it happen that a person who has been sentenced to imprisonment in civil jail by the sentence of a Court Martial, yet his pre-confirmation petition is not decided though mandatorily required under Section 164 (1) of the Act, proceedings confirmed and person lodged in jail. Often copy of the Court Martial proceedings especially in the case of SCM’s, despite gazette of India notification 169 of 15 May, 1987 reproduced in Army order 51/87, is not given. In large number of cases, the accused is made to sign that he does not wish to obtain a copy of the SCM proceedings which results into ………………. gallant soldier remaining in jail without being permitted to seek remedy available to him either from the Army echelons or courts of law.
ALTERNATIVE REMEDIES
The Army Act has catered for seeking remedy for any wrong done to the soldier under Section 26 of Army Act, 1950, for which regulations had been made in Para 361 of the DSR (Army) 1962. It catered for a non-statutory complaint to reach the Chief of the Army Staff within 45 days and to the Central Government within. 
  60 days, which has now been amended and incorporated in Para 364 of the DSR (Army) 1987, which has……….. stipulated that statutory complaint be processed and progressed and if the aggrieved does not receive a decision in six months period he may send a copy of the complaint directly to the formation addressed i.e. Ministry of Defence in the case of statutory complaint and the Chief of the Army Staff in the case of non-statutory complaint. Meanwhile contemplated action against the soldier persists/often punishments completed, there being no system of stay. Which is a serious malady-must be curbed. Once a statutory complaint has been preferred/accepted, impugned order/action must remain …… … ……………

 Similarly for officers Section 27 of the Act, has laid down the statutory provision for seeking redress of grievances. Here also Para 364 of DSR (Army) 1987 governs the rules of the game, and in large number of cases the statutory complaint preferred remains in the “waste paper basket” of the Army Headquarters by and large in the Military Secretary’s Branch of Army Headquarters. Due to failure of system of alternative remedy, firstly by the higher echelons of the Army delaying the decision and secondly even if the decision is communicated, it remains “one line rejection” – it often states “considered and rejected” and now an addition is also made, “as it lacks substance”. In this context the law settled by the Hon’ble Supreme Court of India by a Five Judges bench reported in AIR 1990 SC 1984 is ignored altogether. When I had on 06 Oct, 1994 apprised the contents of the AIR 1990 SC 1984, and requested for issue of suitable directions to the Lower Echelons of Army for its compliance. Chief of Army Staff through his Military Secretary who is a Lieutenant General issued a direction vide MS No. 37625/MS, complaints dated 02 Nov 1995 which in substance meant FORGET ABOUT LAW SETTLED BY Supreme Court. As admitted by the then COC-in-C, Central command, who was formerly a Military Secretary himself till May 1994, 9,000 statutory complaints were pending in the Army Headquarters, Military Secretary’s Branch-a very dangerous syndrome indeed, that top echelons in the Indian publically admitted that 12,500 officers are deficient, 14000 cases pending in Courts and another 9,000 officers statutory complaints were pending, meaning there by half of the Army officers strength has become for practical purposes, non-functional as a person who feels wronged and submits statutory complaint and does not get redressed, remains in the state of demoralisation. 

LACK OF ACCOUNTABILLTY

 In the cases of officers/men donning uniform, seeking redress of their grievances through the medium of statutory complaints, have to submit the same through the immediate superior who in majority of the cases is the person against whom such complaints are preferred, offers ex-parte “comments” and then records whatever he feels based on his whims and fancies, and is never made accountable with the result a distorted version moves up. 
 Similarly the Statutory complaint against the wrong keeps on pending where as action are taken against the initiator of the complaint there being no provision of staying the action against which statutory complaint has been preferred which often results into the person continues to keep on suffering and nourishing grievances not only against the person-his oppressor-but also the organisation itself. 
 
Similarly, the immediate superior as the Commanding Officer relying upon his personal dislike not on the professional competence of the personal records his views in the Annual Confidential Report [hereinafter denoted as ACR] of the person so rated and as such the ACR has become a tool to brow-beat the subordinates which also contributes to a great extent causing demoralisation in the ranks of officers/ subordinates. 

PATTERN OF ACR: LACK OF COURAGE 

 The Indian Army being the fourth largest Army of the world had a system of reporting of the ACR by superior officers and showing to the officer reported upon.

 In the year 1975 a decision was taken on a trial basis not to show the contents of the ACR to the officer reported upon. Unless it contained Adverse/Remedial remarks. After couple of years of trail, it was found that it was not workable and generated more “ill-will” and mutual distrust, as a result thereof the same was shelved, and ACR were again being shown to the officer reported upon.

 In the year 1984 once again a decision had been taken by Lt Gen Sahdev Sehgal PVSM, the Military Secretary, of course with the blessings of Gen AS Vaidya, the then Chief of the Army Staff, not show the ACR to the Army officers (as was the practice in the civilian officers case). Thus equating them with the civilian officers.

 A retired service Chief commented that in case if the Initiation officer under whom the officer reported upon is serving, does not have the “moral courage of conviction” to face the officer under his command across the table and tell him by way of showing the report recorded in the latter’s ACR, what he feels/has recorded in the officer’s ACR, how would he be able to face him in the “Thick of Battle”, what would be the effect of such a situation on the out come of war, when we do not have very friendly neighbours, due to acquire nuclear capability? 

 MAY SOME ONE IN AUTHORITY INTERVENE, TO SAVE THIS FINEST WAR MACHINE MEANT FOR THE DEFENCE OF THE COUNTRY. 

CRITERIA APPOINTMENTS. 

It has been found that in large number of cases of officers they are graded “Defer/Withdrawn” due to their not having been tried on criteria appointments or non/late receipt of ACRs over which the officer has no control, In such cases instead of making the officer suffer, the official due to whose negligence such a situation arose should be made Accountable. This would go a long way in restoring the faith of the officer in the system, COMPLAINTS MADE against the Branch viz MS/Directorate concerned should be dealt with by the AG/Addl AG/Ministry of Defence.

VIOLATION OF HUMAN RIGHTS

 As has already been brought out in this article that Army Act, 1950 was modeled on the pattern of British Government Indian Army Act, 1911. Which was for the purpose of keeping the Indian slaves under the strong thumb of the Britishers then ruling India, the same provision is continued even in the modern civilised society needed drastic change – lack of it or want of it has resulted into thousands of cases of violation of human rights. As an example if a Commanding Officer does not like the fact of a person serving under him, he often resorts to just filling up a form which is known as AFMS-10, declares the person as mentally unsound, places him under arrest and sends him to the Military Hospital where such person is given shock treatment and often he comes out as a mental wreck, save in the case of their being a human Doctor present. In one of the case of a Junior Warrant Officer [hereinafter denoted as JWO], since this JWO had questioned the conduct of one of the Sikh Officer (who was later on court martialled) during operation Blue star, the entire establishment was against this JWO. They wanted to make his a case of AFMS-10 and despite medical report from Nagpur Medical College, the AOC concerned was trying to brand this JWO as a mental case which could be prevented only because of the intervention of Hon’ble Mr. Justice SC Verma of the Allahabad High Court. In the resurgeant India, the Army Act 1950 still continues without any provision for bail. Logically or illogically if a person subject of the Act is charged for even a minor offence and placed under open or close arrest, there is no provision of bail at all which in normal situation is supported to be violative of Articles 21 of the Constitution of India.

 There is another strong eventuality that Lt colonel was retiring on 30 June and the Commanding Officer or anyone in the higher echelon was not happy with such a person, some charges could be invented against him and he can be straight way placed under close arrest and under the provisions of Section 123 of the ‘Act’ continues despite his retirement on last day of the month he continues to be under arrest even after retirement that too without payment of his past dues-salary–even pension. Earlier this Section 123 had stipulated that a person subject to the Act can be taken into custody during the six months period after his retirement, if during this period any past demeanor–while in service surfaced up. Now the Indian Congress Government has amended this section and six months period of liability has been enhanced to 36 months. As an example a war veteran disabled officer had audacity of while in service charging a Brigadier (who happens to be son-in-law of one of the former Chief Minister northern State and a Colonel who claims to be son-in-law of adopted sister of one of the Central Minister) as revengeful measure when this handicapped officer was retiring on 30 June 89, 15 fictitious charges were levelled against him and he along with his minor child then aged 11 years were picked up on 04 Jul 1989 by armed contingent of Rajputana Rifles from Movement Control Office, New Delhi Railway Station and harassed, humiliated and ill-treated, ultimately let off after 75 days of military custody. During that period when Sri K.G. Bhagat, an Advocate from Supreme Court came to meet father and son then lodged in Rajputana Rifles Regimental Centre, he was prevented from meeting them. WHY? – 
Was is not a case of violation of human rights? The Army Headquarters had functioned in a most callous manner by shifting father and son to Meerut under command of same Brigadier against whom the charges of corruption had been levelled by this officer – later learnt that the sole aim was to “bump off” father and son under some sort of “fake encounter”.
 The unfortunate child who was kept into custody from 1800 hrs on 04 Jul 1989 to 0810 hrs on 09 Jul 1989. WAS IT NOT A CASE OF HUMAN RIGHTS INFERINGED? Courts are loath to interfering with, because of various reasons, sometimes due to lack of knowledge of Army Law, but in the instant case words of congress big-wits were involved.
 If the corrupt congress regime and morally deprave service Headquarters have to advance, the plea that the child traveled with his father, of his own. 

(a) What was the justification to keep the child and father, an officer with 80% disability in a cell of Rajputana Rifles Regimental Centre without food from the officers Mess? 
(b) Why the Army Shiedaway from allowing father or at least the child to meet Sri. K.G. Bhagat, Advocate on 05 July, 1989? 
Is it not flagrant violation of the Constitution of India, wherein right of defence is fundamental right ? was it not a case of violation of human rights ? 

(c) Why was father and minor child kept into a cell under custody ?

(d) Why was the minor child left at Meerut when father was taken to Ramgarh Via Allahabad, was it not a case of violation of HUMAN RIGHTS ? 

(e) What answers the GOC-in-C Central Command Lt General YN Sharma and the able Judge Advocate General of the Indian Army have ?

Major General AC Mangala has to say since he was then DJAG of HO Central Command. By the way Gen YN Sharma rightly expressed that by “Girls joining service in the Army”, now at least boys may start joining, which itself reflected that influx was poor in quantity as well as quality.

It is pertinent to mention that the Charges which were invented against the wounded-warrior had all failed, WITHOUT even any inquiry and then just to save their face, as the National Press had given wise coverage Army Authorities invented an altogether new charge of “overstayal of leave”. Leave was granted under order of Hon’ble High Court Allahabad and the Hon’ble Supreme of India had also directed for grant of leave. Ironically when the Prime Minister came to know of this case from the Indian Press that the officer being persecuted was Lt Col. A. Kumar, who happened to be nephew of Late Munshi Kanhaiya Lal, Hony. Manager of Anand Bhawan, PM asked for report. Even the report given to him though dated 20 May 1989, stated that the officer was being tried for various offences by a GCM, but the fact is that the only charge invented was “over-stayal of leave” (MIND YOY) form 21 May 1989 to 31 May 1989. FURRY report is dated 20 May 89 and offence committed is thereafter on 21 May 1989. so the Army HQ Ministry of Defence had astrologically known future events ALXS, Rajiv Gandhi lost his life not for any other reason, but due to violation of HUMAN RIGHTS, may be of some woman in SRI LARKA,

 By the way father and Armed Escort had boarded Ranchi Express at 1230 hrs on 09 Jul 1989 which went to Ramgarh in Bihar Via Allahabad, YET the minor hapless child was left at Meerut, just to terrorise father to succumb to the pressures, so that corruption charges against Congress big-wigs sons-in-law & war as could be withdrawn, WAS IT NOT A CASE OF VIOLATION OF HUMAN RIGHTS ? This is the reason today why cream of the youth is not opting for Army Service. 

LACUNAE IN THE ARMY ACT/RULES/REGULATIONS

(a) The Army has provisions of seeking remedy by the Jawans under Section 26 of the Army Act, 1950, where in the case of officers, they have right under Section 27 of the Army Act, 1950. In majority of the cases, when the person wronged submits statutory complaint it should be cardinal principle that complaint should be decided within a given timeframe and with “reasoned order”, as per the law settled by Hon’ble Supreme Court of India reported in AIR 1990 SC 1984, should be communicated. Meanwhile the action against which the complaint has been lodged should remain “stayed”. 
(b) Similarly when the comments are being offered by the oppressor of the person wronged, against whom the complaint has been lodged when the decision is being communicated on the statutory complaint and if the same is in favour of the complainant he is more than satisfied, but in case his complaint is rejected in that event the entire comments offered by the oppressor must be communicated to the person, so that there is nothing on the back of the complainant. 
(c) If the complainant’s plea has been up held, in that event “accountability” must be fixed so that the erring Commanding Officer is made accountable officially as well as financially, meaning that if the Government has incurred expenditure on the inquiry etc. part of which should be recoverable from the erring officer, that was bound to eradicate arbitrariness and malfeasance with which certain officers in commanding position function. 

MALADIES IN THE ACT/RULES

(a) Power of summary disposal available under Section 80 onwards should be restricted – nay – rather abrogated. Incidentally there are very restricted power in summary disposal as for as Indian Air Force was concerned. Instead of summary disposal it should be summary Court Martial (SCM).

(b) The slip shod manner in which the investigations are carried out under Army Rule 22 (1) read in conjunction with the Army order 70/84 should be re-examined and parameter fixed that Commanding Officer himself must conduct the investigation and record it in writing rather than ordering another officer under his command to record the Summary of Evidence and then he relies upon it the way he feels like.

(c) When a decision had been taken to hold a Summary Court Martial, it should not be of officers/men of the same unit and Army Rule 40 should be made applicable in the case of Summary Court Martial also. Similarly when a decision had been taken to hold a Summary Court Martial the Next-of-Kin of the accused should be given prior notice and allowed to arrange for the defence of the accused be it by a friend of the accused/Defending Officer or counsel of his choice as laid down in Army Rules 95, 129 and Article 22 (1) of the Constitution of India. 

(d), No Summary Court Martial should be allowed to be conduct based on deposition in the Summary of Evidence. Furthermore, once the Summary Court Martial has been concluded and sentence promulgated, the accused should not be sent to jail unless his petition against the conviction, be it under any of the Sections of the Act including Section 164 of the Army Act, 1950 has been decided. It should be mandatory that the moment a Summary Court Martial has been concluded, certified set of Summary Court Martial proceeding should be handed over to the counsel of the accused or given to his Next-of-Kin or sent to concerned Zila Sainik Board (Z5B) for handing over to Next-of-Kin of the accused. This shall be in addition to the requirement that one set shall also be handed over to he accused, and before SCM Commences Next-of-Kin must be informal so that defence could be arranged. 

NOTE : The aforesaid is an inescapable necessity because in the present day it has become the order of the day that Commanding Officers in majority of the cases suffer from lack of knowledge and expertise in the Army law, as such after arbitrarily punishing the person avoid handing over a copy of the Summary Court Martial proceedings and resort to :-
(i), do not give the copy to the accused, despite Army or Act 51/87
(ii), make the accused write that he does not want a copy.
(iii), Copy has been handed over too the accused and such other flimsy and untenable ground.

(e), In one of the cases, Summary Court Martial was conducted forcing one of the soldiers to make confessional statement that he had stolen .9 mm pistol. The pistol was later on found, but the person was arbitrarily and in total disregard to the law reported in AIR 1994 SC 214, punished with 4 months Rigorous Imprisonment, dismissal from service and reduction from the rank of Naik to Sepoy. When the copy of the Summary Court Martial proceedings were demanded, the Commanding Officer gave a reply that the person has declined …………. to have a copy, and when the same was insisted by Next-of-Kin the Commanding Officer with perfidy replied that an accredited representative/counsel of the Next-of-Kin or the accredited cam visit the unit located several nunoreo miles ……… from the residence of the Next-of-kin and Peruse same, that too after next two months time and then also such representative/counsel will not be allowed to either make a copy or make note, out of the summary Court Martial proceedings what was the intention, only to ensure that the person wronged by then completes the jail term, Such actions were bound to demoralize even men still serving and doming uniform. A very dangerous syndrome indeed. Does this type of Commanding Officer expect loyalty of the men during the thick of a battle – or does he expect that he shall complete his tenure an a go away as was the mental make up and thought process of the officer cadre in pre-1962 era ? OR does he expect to hide in a Military Hospital as a sick person ?.

COURT MARTIALS – GCM/SGCM/DCM

(a) Similarly when the court martial is held it is almost settled law that the officers who constitutes the court martial are by and large never law qualified persons, and their being a person who is placed there as representative of the JAG Branch (Judge Advocate General) who is main star performer and has considerable influence over the outcome of the trial and remains loyal to “Command Influence” of formation Commander.

(b) The atmosphere at the GCM remains so much surcharged especially when a person accused of an offence is kept under close arrest and who is hardly allowed to have free communication with his well wishers/counsel. Also rules of the game are always complied in its breach. As an instance, even the GCM remains under ever watchful eyes of the of the convening and confirming authority under the provisions of Rule 150 of the ‘Rules’ 1954 and is always exposed to the hazards of being severely punished by way of an invented punishment which is known as ‘Severe Displeasure’. Though such displeasure has been frowned upon and found as violative of section 71 of the ‘Act’. (A Division Bench judgement of Hon’ble Allahabad High Court reported in 1994 UPLBEC 177 relied upon). Lately it is understood a Division bench of Supreme Court of India, foresighted, presided over by Hon’ble Kuldeep Singh J has settled the Law that the award of “Severe Displeasure” though not covered under Sec 71 or 74 of the Army Act 1950, was yet because it persisted right from “British Raj” as such it was based on old customs as such it has the force of Law. If this be so How could Hon’ble Court expect/direct Government to change the Muslim Personal Law. Which is not only based on their Law, but also shariat. Regarding “Severe Displeasure” in civil Appeal No. 1321 of 1995 This judgement delivered on 25.4.95 had shaken me thoroughly and I decided to prevent my sons from Joining Indian Army.

(c) The punishment awarded to the accused is not based on any reasoned order. Only the members constituting the Court Martial they write on a slip ‘Guilty’ or ‘Not Guilty’ and majority judgement is pronounced. Even after amendment of Army Act detailed orders are never recorded. Through there is a provision under Section 164 (1) of the ‘Act’, which caters for a petition by aggrieved to the confirming authority, before he has confirmed the GCM verdict but often the aggrieved is not allowed to avail this statutory remedy. As an example, in the case of Surendra Singh of a CAV, was tried by a GCM and awarded life imprisonment, but before the confirmation he had submitted a petition under Section 164 (1) of the ‘Act’, which was supposed to be decided within 30 days as laid down in Para 365 (j) of the DSR (Army) 1987, but it has not been decided even till date, and the person was lodged in Civil Jail, where he is languishing for the last 2 years, and now it has been communicated that the earlier petition was under Section 164 (1) of the ‘Act’, as such no action can be taken on that and now if he wishes he can prefer a petition under Section 164 (2) of the ’Act’, which was done on 24 Jul 1994, but ALAS the same is still awaiting disposal, that too DESPITE two directions of Allahabad High Court on 01 Sept 1995 and 21 Sept 1995. THUS Army Chief/Secretary, Ministry of Defence were showing THUMB to the High Court directions? Were they above the Law of Land. IS IT NOT A CASE OF MASAGRE OF THE PROVISIONS CONTAINED IN THE ARMY ACT? IT IS WILL AND WHIMS AND FANCIES OF THE GENERAL OFFICER RESULTING INTO SERIOUS VIOLATION OF HUMAN RIGHTS. Ironically a person convicted and sentenced to jail cannot seek proper judicial remedy available under Article 226 of the constitution of India till the convict has exhausted remedy available to him under Section 164 of the ‘Act’. What should the ACCUSED do in case if the Army authorities do not decide his statutory petition under Section 164 of the ‘Act’ and violate Para 365 (j) of DSR (Army) 1987 ? Such flagrant violation of Army Act 1950/DSR (Army) 1987 makes the men donning uniform loose faith in the system and as also end result being that he looses faith in the Military Leadership, compound effect being that there is reluctance on the part of the youth to join Defence Forces. WHAT WILL HAPPEN DURING ACTULA WAR WITH A HOSTILE NEIGHBOUR ?

VICARIOUS LIABILITY

 It is worth mentioning that when the Britishers had enacted the law known as India Army Act, 1911, they had incorporated a Section know as One-Two-Three- (123), which had catered for that a person even if after his retirement/discharge, be remains subject to the Act next 6 months during which any of his misdeeds committed while in service, surfaced up, he can be taken into custody and tried for the same offences as if he continued to be subject to the Act even after retirement for 6 months duration. Not the worthy Indian Government under the Prime Ministership of Sri PV Narshimha Rao the said Section of the Army Act Viz Section 123 has been amended making the 6 months liability now to 36 months. This has become one of the biggest deterrent for the youth of the society who may be willing or wishing to join Defence forces. 
 Similarly there is another provision under Section 124 of the Army Act, 1950, which has catered that place of committal of offence is not relevance in so far as the place of trial or investigation were concerned. As an example a person subject to the Army Act was charged for an offence committed at Allahabad, he was taken to Meerut where the inquiry was conducted. Thereafter he was shifted from Meerut to Ramgarh and trail was conducted there. After trail the person was taken to Madras and kept in jail there. This is a serious handicap for any officer who has been accused for an offence, may be for a minor offence of overstayal of leave because he cannot be expected to meet his friends and well wishers/ engage a counsel at a far off place. Such draconian provisions prevented the cream of the society from joining the Indian Army. This was the reason that even senior Army officer were reluctant to allow their wards to join the Indian Army, end result being that today 67% new entrants are the children of JCOs and NCOs of the Army and from the lower echelon of the civilian society, with the result after another 15 years when these new entrants of today become the Commanding Officers, there would be altogether a different scenario of discipline in the Indian Army. 

SERIOUS LACUNAE

Once there is a provision under section 124 of the Army Act 1950 which ha laid down that place of trial of a person subject to Army Act was not dependent upon/relevant to the place of occurrence of the offence, meaning that a person commits an offence in Madras, is taken away from there and investigation/trial conducted in Orissa, but is lodged in the jail in U.P., cannot seek judicial remedy in U.P. was against the basic spirit of section 124 of the Act, because in certain cases the Hon’ble judges have entertained a view that ether the convicted person should go to Madras or to Orissa to seek relief. How is it possible for a person convicted in Orissa now lodged in a Jail in U.P. to either arrange for filling of a Writ Petition either in Madras or in Orissa not only from Management point of view but also expenditure involved. Once there is no restriction as regards/filing of Writ Petition/Appeal and so on, especially when the Chief of the Army Staff has his legal representation. Through officer of the rank of Deputy Assistant Judge Advocate General. Who monitors, complies, vets and receives copies of the Writ Petition sends it to Chief of the Army staff and other units, even goes to the extent of monitoring and arranging filing of the documents connected with the contempt’s committed by Secretary. To Government of India, Ministry of Defence, Chief of the Army Staff and other Officers. Union of India has Chief Standing counsel with a battery of Additional Standing Counsels allover as such there should be no problem for the Government in receiving and defending case filed by a soldier. Any where the only yardstick should be that the petitioner is resident of a state within the jurisdiction of the High Court, (Section 20 of the C.P.C refers), the person is lodged in jail within the jurisdiction of High Court or any part of cause of action has arisen within the territorial jurisdiction of the High Court. 

(b) similarly the Judge Advocate General Branch which consists of Law Qualified Officers, up to the command level should be placed under the direct command and control of Ministry of Law that would eliminate not only “Command and Influence” which the formation commanders unduly exert but also that would ensure fair trail and compliance of the Law on the Statue in the Army Act, 1950, Army Rule 1954/Defence Service Regulations 1987, and which in turn was bound to eliminate arbitrariness which was sworn enemy of principle of natural justice, end result would be reduction in the number of cases, and resuscitation of there wise “Sagging Morale” of brave soldiers.

JAG UNDER MINISTRY OF LAW

 Armed forces being very special organisation where the defence of the nation was involved as such the men donning uniform deserved special treatment, because here the question of laying down of once life was involved as such keeping in view the judgement reported in AIR 1982 SC 1413, the ‘Act’ warranted remodeling as has been done in England with a provision for Appeal against conviction or award of any sentence under Sections including Section 164 of the Army Act should go to the Ministry of Law or if it goes through the Jag branch then it should go to the Ministry of Law meaning if Jag Branch is under Ministry of Law then it should go to Ministry of Defence. 

ACCOUNTABILITY

 For each wrong action the officers must be held responsible/ accountable as an example if the aggrieved person wins his case from the courts of Law, the oppressor officer must be made to bear 20% of the expenses incurred by the public exchequer.

(b) If there is petition for contempt, in that case the alleged contemnor should be make to face the charge his contempt at his own expense, and in the event of being found guilty should be dealt with accordingly. In the event of Hon’ble Acquittal, the expenses incurred by him should be reimbursed, that was bound to reduce the number of contempt petitions, in that would reduce the number of Writ Petitions/court cases. 

(c) In the case of Writ Petition the government must fix responsibility of the officers who cause miscarriage of justice, violation of the Law end result being demoralization amongst the ranks – A dangerous syndrome indeed ? 

(d) In the cases of criminal conduct of the officials sanction under Section Cr.P.C. 197 should not be denied that would serve as a serious deterrent against the mischief mongers. 

WHAT HAPPENS

(a) In case if large number of cases are coming to the Courts of Law, that shows system of justice in the Army has become Antiquated, - worth keeping it in the National Achieves and a fresh look given to the Act No. of 46 of 1950. If it is not done disgruntled men can become serious liability in the event of a war with the hostile enemy across the borders, BECAUSE the dictum that MAN BEHIND MACHINE still remains the most vital factor. 

(b) If nation toes not wake up purulia like CHINKS (airdropping of Arms) shat surface up more endangering national security especially when Courts are loath to …………………in Army matters heating the in justice men donning olive-green due do the following …………..

(i) Still treating Armed forces as “…………Cow”
(ii) Due to complex Army Law what was enacted in 1911 by the British Rules for there Indian Slaves, WHICH in the year 1950 has been charged form Indian Army Act 1911
to
Army Act 1950 by way of Just deleting the word “Indian” WHICH even Hon’ble Supreme Court dictated in 1952 SC 1413 
(iii) “ANTIQUA TEN” 
Counsels of appearing for the Union of India often harp in their arguments Need for Maintenance of discipline, forgetting if a Soldier does not get justice, he remains a disgruntled “Soldier” dangerous clement in the limes of Crises. BECAUSE by this only today there are 1250 ……………………in Officer Centre, 14000 Court Cases pending & in Army Headquarter A very dangerous syndrome INDEED.