Defence Ministry’s approach to litigation: misdirected, highly adversarial and sadistic (Part II)

Navdeep Singh

Attitudinal Problem, Pressure on Officers dealing with Litigation

In a Committee of Experts constituted by the Defence Ministry in 2015 on sentiment expressed by none less than the Prime Minister of India to reduce litigation, especially appeals filed by the government, of which even this author was a member, we were perplexed when many officers came to us with presentations portraying the methods of filing ‘faster appeals’ rather than methods to reduce appeals.

Of course, this militated against the very reason why the Committee was constituted. We had to repeatedly question and counsel many officers, while recording in so many words, that litigation was not a war or a sport that they had to score a ‘win’. We also had to regrettably record in the Report as to how contemptuous language was used against the judiciary by certain elements and how suggestions were made to overreach courts.

All this reflects a strange kind of arrogance which is unacceptable in a democracy. Shockingly, proposals were made before the Committee that members of the judiciary dealing with matters of the Armed Forces should be ‘sensitised’ and there should be a consultative mechanism between the executive authorities and members of the judiciary. Such statements clearly point out to the lack of basic understanding of the concept of separation of powers and that persons in key appointments feel that the judiciary functions like some sarkari office where things are done by hobnobbing, interaction, liaison and overreach. It is not even understood by the system, it seems, that within a courtroom, both parties are to present their cases and the bench is supposed to render a decision as per law.

As stated in the beginning, it is also very frightening to see the total lack of grace in accepting a wrong in courts. While officers of many departments including the Ministry of Home Affairs in parallel litigation have no qualms in conceding when a particular case is covered by existing case law or even admitting any wrong committed, this trait is rarely seen in the case of the Defence Ministry, though a lot is said about the virtue of ‘moral courage’ in the military milieu.

So much so that even senior officers get personally involved in innocuous litigation putting pressure on young officers, including those of the Judge Advocate General’s Branch (JAG) with phone calls, signals and what not! Undue pressure is exerted to ‘win cases’ and officers are questioned when a case is ‘lost’, not realizing that in every litigation, one party has to win and the other has to lose and this is an everyday affair in courts all over the nation.

This undue pressure also encourages young officers dealing with litigation to show over-enthusiasm and at times, over-smartness, which might help in the short run, but not in the longer race. Does it behove senior appointments in the military set-up getting intimately intertwined with proceedings of matters on promotions, pensions, minor disciplinary issues, welfare policies etc? Is that the official mandate? Should that be the focus? Aren’t there other real ‘military’ issues to look after? No real battles to fight?

While legal officers of other departments including the uniformed services of the Home Ministry act in an autonomous manner in their functioning with full authority to take a stand or decision on behalf of the system, the representatives of the military, on the other hand, are always terrified of their chain of command. The government and its entities are supposed to be faceless organizations and there is no reason to get personally involved or individually entangled in cases out of administrative egotism.

This fleeting happiness of winning a point by over-smartness such as maintaining ‘shadow files’ or ante-dating documents, creating documents, or asking counsel to change legal opinions, also might earn one some brownie points and impress certain bosses, but the damage caused by these stunts to the institution, its reputation and the morale of soldiers, veterans and military widows, is permanent and irreparable. You never know when the shoe shifts to the other foot!

In fact, the attitude of the system in decrying litigants and using accusatory language was very nicely preserved by the Delhi High Court in one of the cases, wherein it observed:

“…It is also necessary to record here, with some regret, that the pleadings of the Army, in this case, were combative and adversarial. References to the petitioner and XXXXX more often than not had an accusatory note. At no point of time does the Army appear to have thought it appropriate, as an institution, to extend sympathy…Would it then have mattered if the Army had officially said “Sorry”. It is time for all of everyone to move forward- beyond egos, beyond perceptions of “propriety” (whatever that means in such cases) and as institutions, to reach out to those with hurt feelings. Doing that shows humaneness and courage; stony silence is not machismo. It is hoped that this is a wake-up call for the Army to take remedial measures in such cases…”

Trying to Override Judiciousness in the name of ‘National Security’

A strange kind of behaviour in litigation is also displayed in routine matters such as promotions when officers representing the establishment try to overawe the court and the litigant by behaving as if they are dealing with nuclear secrets of the State. This attitude, which was never found acceptable in the High Courts, has increased after the inception of the Armed Forces Tribunal (AFT). Officers in uniform, representing the establishment, try to pass on papers in ‘sealed covers’ to the bench to provide a one-sided story to any litigation.

Sadly, while the High Courts tend to rebuke such behaviour, this practice has become routine in some of the benches of the Armed Forces Tribunal. In fact, the aim of this practice is very simple, that is, to steal a march over the litigant by overplaying certain documents while underplaying others, since the litigant then has no possible way to rebut what has been placed before a bench. There have been moments where in the open courtroom, officers in uniform have walked up to the bench literally to show documents at the back of the litigant. What image or perception would this project to the litigant or others present in the Court? In the judicial system of a democracy, the petitioner is the dominus litis, but it seems it’s the other way round in military litigation.

What is also brazenly incorrect in the encouragement of this system is that while transparency laws are now all-encompassing with even cabinet notes open to public scrutiny, here it is attempted to convey to the judicial system as if heavens would fall if a particular case is decided in favour of a particular individual.

Noting this behaviour, the Chandigarh Bench of the AFT in Brig Dinkar Adeeb v. Union of India (OA 2948/2013 decided on 30-08-2013, later upheld by the Supreme Court) had deprecated the conduct of the Military Secretary’s branch in trying to pass on a file to the bench without showing the same to the petitioner after the case had been argued. It was stated by the bench that “no such attempt should have been made”. It is not understood as to how administrative or promotion matters can be shrouded in secrecy. At best, the names of other officers in such proceedings can be blurred or blocked and the rest of the papers can be placed on record.

Courts usually only accept documents in a sealed cover wherein the security of the nation is involved, or if it’s a case with ramifications on relations with foreign powers, or an issue involving fiduciary relationship such as contracts etc.

This attitude also recently found disfavour with the Supreme Court in Hav Sham Dass D v. Union of India (Criminal Appeal D 14045/2018 decided on 12-07-2018) wherein the soldier’s services were terminated however he was not allowed to peruse the documents related to his termination on the pretext of ‘national security’. This is what the Supreme Court observed on the matter:

“We may only clarify that every single relevant document pertaining to the appellant’s termination will be allowed to be inspected as per the Rule. We make it clear that no document shall be allowed to be denied to the appellant on the so-called ground of national security.”

Strangely despite multiple decisions by the Central Information Commission and the High Courts, the ‘opinion and findings’ rendered against delinquent employees are not passed onto them in the name of confidentiality. Meaning thereby, the employee must not know what has been found against him/her and on what basis, thereby leaving the employee defenceless and groping in the dark.

Interestingly, basing disciplinary action on such a faux cloak of secrecy was shattered by the Supreme Court last week in Union of India v. Col AD Nargolkar (Civil Appeal 10686/2018 decided on 24-10-2018), wherein the Supreme Court noted,

“To top it all, while giving the aforesaid findings, Court of Inquiry (COI) has referred to the ‘discreet inquiry’ which had found the allegations to be correct. At the same time, this discreet inquiry was not proved before the COI. We fail to understand as to how it could become the basis of the findings of the COI when no opportunity was given to the Officer to meet the same.”

Clearly, from the looks of what has been in vogue, courts should be extremely slow in taking the word of certain instrumentalities of the State at face value. It must, however, be emphatically stated that it is not the counsel representing the Union who might be at fault, since the lawyers too are mostly kept in dark of the reality of it all. In my personal opinion, such transgressions should not be let off lightly by courts and tribunals merely because the other side presents itself to be hallowed since it deals with national security. Organizations dealing with the defence of the nation must be held to even greater probity and judiciousness since injustice itself is the antithesis of discipline. No entity must be allowed to get away with the thought that certain organizations hold a right to some special privilege, much less the privilege to misguide.

Incorrect Litigation Data

Interestingly, the jugglery is not restricted to its own rank and file. Elements of the Defence Ministry even have the propensity to confuse their own political bosses and also other ministries. In data provided to the Law Ministry, the MoD reported pendency of only 3, 433 cases relating to the said Ministry. The MoD also reported zero contempt matters. The data is still available on the official Law Ministry website (See Slide No 6).

The truth however is that more than 15, 000 cases were pending in the AFT alone, which can be seen on Page 21 of a Parliamentary Committee Report. Moreover, as on July 2015, about 4,390 applications for contempt or execution of orders were pending in the Chandigarh Bench of the AFT alone and the number of contempt or execution applications in other benches, the High Courts and the Supreme Court, would be in addition. The pendency in the Armed Forces Tribunal in July 2018 was about 17,000. Hence, if even the Ministry of Law & Justice can be at the receiving end of manipulation by some mandarins of the MoD, what can a common litigant expect?

While the Ministry of Law & Justice lists the MoD as the fifth highest litigant based upon the imperfect data provided by it, the fact remains that in service matters, it is in reality the highest litigant since Ministries of Finance and Railways are burdened by tax related litigation/appeals and accident claims respectively over which they have no control. Moreover, while the MoD is known to file appeals in the Supreme Court in matters involving even a few thousands of rupees (if not hundreds), the Ministry of Finance admirably does not appeal unless the matter is worth Rs. 1 Crore.

While the Supreme Court has called for the government and its instrumentalities to always be responsible litigants, and there is change in the last decade or so as far as many central government departments are concerned, the same has had no effect on military litigation. The attitude is a reminder of the following words on litigation induced by government agencies by the Supreme Court in Urban Improvement Trust, Bikaner v. Mohan Lal  (2010) 1 SCC 512:

“4…They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.

5. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice….

6. Unwarranted litigation by governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:

(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.

(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision….”

The government has a huge task at hand. It must not trust what is put up to the political executive by way of file notings from below, blindly. Notes are prepared so as to create a bias in the minds of the competent authorities, thereby making wise decision-making an uphill task. The only way to resolve this quandary is to ensure a well-rounded system of consultation with all stake-holders and selected affected parties. In absence of the same, the decision-makers would continue to remain trapped in echo-chambers.

We, the ones dealing with military litigation, shall remain waiting for Godot!

Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court, the founding President of the Armed Forces Tribunal Bar Association at Chandigarh, Member of the International Society for Military Law and the Law of War at Brussels and author of ‘Maimed by the System’.

This is the second of the two-part article. Read Part I here.