Wednesday, January 9, 2013

To Ensure Independence,Armed Forces Tribunal Not To Function Under Defence Ministry,To Be Brought Under Law Ministry Instead : High Court

In a landmark judgement which is bound to go a long way in establishing the independence of judicial functioning in India and bringing cheer to the champions of separation of judiciary from the executive, the Punjab & Haryana High Court has directed that the Armed Forces Tribunal (AFT) be brought under the control of Ministry of Law and Justice rather than the Ministry of Defence as is the case at present. The directions, made available today, came in a PIL filed by Navdeep Singh, the former and founder President of the AFT Bar Association at Chandigarh.

 The Petition had pointed out that the Supreme Court had already held that Tribunals could not be made dependent on sponsoring or parent Ministries and to ensure their independence they could only be supervised by the Law Ministry. It had been averred that all orders by the AFT were to be passed against the Defence Ministry and the same Ministry had been made the parent controlling Ministry of the Tribunal wielding all pervasive control over the AFT including appointments, funding, rule-making and infrastructure, thereby making it seem more of an extension of the State rather than an independent judicial body. The Petition also pointed out that non-appointment of Judicial Members after their retirements had resulted in absolute absence of judicial remedy to serving and retired personnel at some places. The Chandigarh Bench, having the largest jurisdiction of five states was also partially functional with only one judicial member appointed out of three.

The Petition had sought provisioning of proper infrastructure, accommodation and courtesy to the institution of AFT and its members. It had been pointed out that though the Tribunal had to perform criminal appellate functions, there was no representative of the Police in the premises. The Petition also questioned the logic of having two serving career bureaucrats on the selection committee examining the suitability of serving or retired High Court Judges to be appointed to the AFT.

Giving directions to the government, the High Court has directed that after bringing the Tribunal under the purview of the Law Ministry, suitable amendments in the selection committee can also be carried out. The court has also hoped that all vacancies of judicial members would be filled up in the near future. The court has directed that immediate steps be taken to give effect to its directions.

While giving directions, the High Court has relied upon earlier judgements of the Supreme Court in which it has been observed that Tribunals in India have not yet achieved full independence and unless wide ranging reforms are carried out, Tribunals would not be considered independent. The Court has also observed that the idea behind setting up of the AFT and also the reason behind passing of the AFT Act was ‘independence’ and that since the function of the Tribunal is purely judicial and adjudicatory, keeping in view the doctrine of separation of powers inherently ingrained in our Constitutional System, the Government per se ideally should have minimal say in the functioning of the AFT.

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