Document Fragment View

Matching Fragments

15. Not that discipline is irrelevant in a civil society and that its relevance is only to an Armed Force, but surely everybody would agree that whereas some form of indiscipline may be accepted in the din of democracy, there is just no scope to brook even the slightest indiscipline in an Armed Force; for the reason it is recognized that in times of peace an Armed Force constitutes a grave threat to democracy. In the Indian context, by virtue of Article 33 of the Constitution of India, rights conferred by Part-III of the Constitution of India i.e. the precious fundamental rights available to persons and citizens of India can be curtailed in their application to the members of the Armed Forces and laws were enacted in India which gave the right to the Armed Forces to subject its members to punishment extending up to even the sentence of death at trials presided over by fellow members of the Armed Force, way back in the year 1982, in the decision reported as AIR 1982 SC 1414 Lt.Col.Prithi Pal Singh Bedi vs. UOI & Ors., noting that military trials are subject to varying degrees of ‗command influence' and there was absence of even one appeal with an Appellate Forum (having power to review evidence, legal formulations, conclusions and adequacy or otherwise of punishment), and opining the same to be not in sync with democratic principles; further noting the changes adopted in foreign jurisdictions, the Supreme Court expressed a pious hope that the legislature should earnestly consider creating an Appellate Forum, which should be free from the command influence, for members of Armed Forces; lest these brave sons and daughters of India feel being orphaned in a democratic society. The Supreme Court expressed itself, in para 45 of the decision, by highlighting that whereas a hierarchy of Courts with appellate powers has been found to be counter- productive, and suggested at least a single judicial review forum which must truly be a judicial review forum for the members of the Armed Forces to question the verdicts against them at a Court Martial. This was the clarion call which went unheeded and unnoticed till, in the year 1999, the Law Commission, in its 169th Report, titled as ‗Amendment of Army, Navy and Air Force Acts - April 1999' opining that the requirement of justice and discipline for members of the Armed Forces had to march hand in hand and recommended setting up of an Adjudicatory Forum, to act as an Appellate Forum, against decisions of Military Courts and Military Tribunals. In para 1.1 and 1.2 of its report, the Law Commission highlighted that the existing mechanism of High Courts entertaining petitions under Article 226 of the Constitution of India against verdicts by Court Martials was unhealthy inasmuch as each High Court was adopting its own approach in the matter and thus there was a desirability of having a single Appellate Tribunal. In para 5.1.1 of its report, the Tribunal recommended that the Appellate Tribunal should not be a totally Civilian Appellate Tribunal as has been provided in the United Kingdom, opining that in the Indian context this may not be conducive to the discipline of the Armed Force. The Law Commission suggested a hybrid Tribunal, headed by a Civilian Judge whose other members could be drawn from retired members of the Armed Forces. In para 5.1.4 of the Report, the Commission recommended a direct Statutory Appeal to the Supreme Court against the decisions of the Tribunal and expressed a hope that if a legislation was enacted in harmony with its recommendations the Commission would expect that no High Court would entertain a writ petition under Article 226 of the Constitution of India against the orders of the Appellate Tribunal. In para 6.1 of its Report the Law Commission noted that each year thousands of writ petitions were filed by members of Armed Forces in several High Courts in India concerning their service matters and due to docket explosions in Courts these matters remain pending for years together resulting in a sense of dissatisfaction creeping into the members of the Armed Forces; it was opined by the Law Commission that this creeping dissatisfaction was against the interest of discipline in an Armed Force. Thus, the Law Commission recommended that the Statutory Appellate Tribunal to be created should be all embracive i.e. should act as the Appellate Forum for merit review of Court Martials as also as the Forum where service disputes such as seniority, promotions and other conditions of service could be adjudicated upon. In para 6.2.4 of the report, the Law Commission opined that if an adequate remedy of appeal, on a question of law against the decision of the proposed Tribunal would be made available before the Supreme Court, in view of an adequate remedy of appeal, the High Courts would not exercise jurisdiction under Article 226 of the Constitution of India.