Fifteen years lapsed before the Armed Forces Tribunal Act 2007 came into being.
Nothing that I am writing here is a secret as everything is in the public domain. Everything is documented in the pages of law books. So, today, I shall focus on the law and its application in a particular situation or case as gleaned from open-source media reports and application of the law on the merits or demerits of the case. No more and no less.
It has to be borne in mind that before India gained Independence, naval personnel were governed by the Indian Navy (Discipline) Act 1934, which was passed pursuant to Section 66 of the Government of India Act 1919 (later replaced by section 105 of the Government of India Act 1935).
Post-1947, however, it was felt necessary to change it. Hence, when constitutional changes took place, action was initiated to adopt and adapt a new Navy Act that led to birth of the Navy Act 1957. Although the Act dealt largely with disciplinary provisions as there were no statutory provisions pertaining to various administrative, enrolment, grant of commissions, etc. yet, the said law gave a fair glimpse of the way Navy personnel are required to conduct themselves while being in the line of duty.
While the Navy Act came into force on December 27, 1957, another act was introduced on December 20, 2007 — the Armed Forces Tribunal Act 2007 (AFT Act). The “introduction” thereof (AFT Act) deserves a close look.
According to the law: “A large number of cases relating to service matters of the members of the three armed forces of the Union of India are pending before the courts for a long time”. Indeed, these are not very pleasant words to be conceded by the state in the “introduction” of the act itself.
Two things emerge. First, something seems to be wrong somewhere that led to “a large number of cases relating to service matters…” and that these “are pending… for a long time”. It reminds me of an old proverb: “Justice delayed is justice denied” Is it a good thing for the state to see its soldiers facing such a situation?
Understandably, it was only after the verdict of the Supreme Court in Prithvi Pal Singh v. Union of India AIR 1982 SC 1413, which held that the absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment in the laws relating to the armed forces was a distressing and glaring lacuna. Only after it urged the government to take steps to provide for at least one judicial review in service matters that things started moving.
Thus followed Parliament’s Estimates Committee, which in its 19th report desired that the government should constitute an independent statutory board or tribunal for service personnel. Fifteen years lapsed before the Armed Forces Tribunal Act 2007 came into being.
Now, I am pained no end to learn from news reports that a three-star naval officer, in order to promote his son-in-law (a commander-ranking officer of the Navy), inflicted irreparable damage to the annual performance and appraisal report of another commander-ranked officer, who was to be promoted purely for his professional performance and exceptional merit and competence.
The retired three-star officer’s unabashed and brazen nepotism compelled the superseded commander to quit the service, thereby damaging the institution’s planning to go forward for development of critical and sophisticated defence technology pertaining to the security of the nation.
Although subsequently the Armed Forces Tribunal upheld the “cause-of-action” of the superseded commander and imposed a hefty penalty on the erring three-starred vice-admiral, the broken glass was beyond redemption.
Before proceeding further through some provisions of Navy Act 1957, it needs to be noted that “a naval officer, after retirement, is not subject to the provisions of the Naval Act 1957”. The three-star officer stands retired now. Hence, the cause of justice can only be served if atrocious wrongdoings and gross injustice inflicted on deserving professionals in the past are never allowed to recur.
While wondering about the sordid saga, I carefully went through all 188 sections of the Navy Act 1957. I noticed Section 46, the poignant title of which read “Ill-treating subordinates”. It states: “Every person subject to naval law, who is guilty of ill-treating any other person subject to such law, being his subordinate in rank or position, shall be punished with imprisonment for a term which may extend to seven years or such other punishment as is hereunder mentioned”.
As is well known, whereas it takes at least 32 years (average) to reach the rank of a three-star officer, a commander is four step/ranks below the former. Hence, if a three-star officer resorts to unabashed nepotism to deprive a deserving (subordinate) commander to pick up the next higher rank of captain, the moot question to be asked is: Does the act of the three-star officer amount to “ill-treating subordinates” or not?
But there again countless ways to find alibis and a defence will come to fore under the guise of discipline, morale, command, absolute obedience, etc. All grievances or genuine charges of “ill-treating subordinates” would get buried.
Section 54 of the said law titled, “Cruelty and conduct unbecoming the character of an officer?” stipulates:
Every officer subject to naval law who is guilty of cruelty shall be punished with imprisonment for seven years
Every officer who is guilty of any scandalous or fraudulent conduct shall be punished with imprisonment for two years.
Although it is for the judiciary to give verdict whether the present case constitutes “ill-treating subordinates” or “cruelty and conduct unbecoming the character of an officer” or otherwise, the entire show leaves a very bad taste in mouth.
Ninety nine per cent of armed forces personnel are subordinate, owing to the steep hierarchy. The question, therefore, is which subordinate is going to take legal recourse to fight a heartless, mean, narrow-minded superior lacking intellectual integrity?
This issue has troubled me for decades. However, I can only use one word to express the verdict of a common Indian citizen: “Shame” on those whose conduct is unbecoming an officer and a gentleman. There are no bad sailors or soldiers, only bad admirals and generals.