Which organisation would appeal to the Supreme Court seeking abrogation of its own fundamental rights?

The SC recently, on an appeal filed by the Ministry of Defence, held that High Courts should not entertain writ petitions against orders passed by the Armed Forces Tribunal (AFT) and that litigants should file appeals in the SC instead.

Some members of the military community, thankfully in minority, were trying to celebrate and sell the idea of a direct appeal to the SC arising out of orders from the Tribunal, suggesting it would lead to ‘quicker justice’. Little did they fathom that what they were terming as ‘quick’ justice was in fact the absence of any judicial remedy at all since there is no vested right of appeal as per the AFT Act before the SC unless there is a ‘point of law of general public importance’ involved in a case. That effectively makes the Tribunal the court of first and last instance. Also, even if the appeal to the SC had hypothetically existed as a matter of right, defence personnel or veterans or widows cannot even dream of approaching the SC, which for them, is both, unaffordable and inaccessible.

One of the cardinal principles in a democracy is the availability of judicial remedy in case a person is dissatisfied with a judicial order by a forum - a right available in abundance to each citizen in our country too, including all Government servants, except now for defence personnel, veterans and their families.

Shocking was one of the main pleas taken by the Ministry of Defence (and also in all probability, elements of the Army Headquarters) before the SC in this case - that Article 33 of the Constitution of India empowers the system to restrict or abrogate fundamental rights of members of the Armed Forces and hence the fundamental right of remedy via a writ petition stands eliminated for the defence community.

This ground professed by the establishment, therefore, seems to suggest that members of the Armed Forces do not deserve the fundamental rights as guaranteed to other citizens of the Country.

This plea is untenable on multiple grounds:

Firstly, Article 33 deals purely with maintenance of discipline while on duty and has no link whatsoever with the right of defence personnel to seek invocation of the writ jurisdiction of Constitutional Courts.

Secondly, the same Article 33 is applicable to all other uniformed services, including the Police. But, have the rights of those organisations been abrogated or restricted in this regard? A civilian government servant can invoke writ jurisdiction of the High Court if he/she is dissatisfied with the order of the Central Administrative Tribunal, but now a member of the military cannot!

Thirdly, most of the cases relate to veterans, widows and family members and Article 33 does not apply on them.

Fourthly, why on earth would the Army or the Ministry even attempt to suggest to the Supreme Court, or elsewhere, that the defence community does not deserve the fundamental rights as enjoyed by each and every citizen of this land? Has the top brass analyzed this plea, the decision and its after-effects on the status of members and former members of the military?

Since independence, this has been the biggest hit to the rights of the protectors of our frontiers and their families, and it does seem that many of us have not realised it yet. Senior officers of the Defence Services need to be wary about such self-goals and understand the very thick line between celebration and miscarriage.

(Maj Navdeep Singh is the author of Maimed by the System and a Member of the International Society for Military Law and the Law of War at Brussels.
Email: navdeepsingh.india@gmail.com
Twitter: @SinghNavdeep )