The Narendra Modi government has approved the appointment of 11 judicial and 12 administrative members in the Armed Forces Tribunal on 15 November. The approval derives its powers and procedures from the Tribunals Reforms Bill, 2021 passed by both the Houses of Parliament in August 2021.
The Bill, part of a broader ongoing tussle between the judiciary and the executive/legislature, is being contested in the Supreme Court. In essence, the issue is about the separation of powers and the independence of the judiciary. At its core, it is about the institutional control of the various tribunals that have been established to relieve the high courts of the heavy burden cast on them by large numbers of pending cases. However, the focus here is on the AFT in the context of the larger tussle.
In February 2021, the AFT’s 11 benches were dealing with a total of 18,829 cases, led by Delhi (5,553 cases), Chandigarh (4,512), and Jaipur (3,154). The primary reason for pendency is the long-pending vacancies among the judicial and administrative members. The recent appointment of 23 members indicates that only 11 members were in office out of a sanctioned strength of 34. A situation that has prevailed since 2017 and was attributable to the Supreme Court’s ongoing legal cases concerning tribunals.
The contemporary legal situation regarding tribunals can be traced to the Gazette Notification on 1 June 2017, when the Ministry of Finance using the powers conferred on it by Section 184 of the Finance Act, 2017, notified the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 that applied to the heads and members of all tribunals.
Simultaneously, the AFT Act 2007 was amended and the qualifications, appointment, term of office, salaries and allowances, resignation, removal and, terms and conditions of service of the chairperson and other members of the tribunal came to be governed by the provisions of the Section 184 of the Finance Act 2017. The provisions were challenged in the Supreme Court.
In November 2019, the Court passed an interim order stating that appointments to tribunals would be made on the basis of existing laws and not on the basis of rules framed under the Finance Act 2017. The Court stated that the rules did not meet the requirements of judicial independence that were mandated in earlier judgments in terms of the composition of the tribunals, the security of tenure of members, and the composition of the search-cum-selection committee due to a lack of judicial dominance that contravened the doctrine of separation of powers.
In February 2020, new rules were notified. They were again legally challenged on the grounds of non-conformity with earlier suggestions of the Supreme Court. It suggested some amendments, such as a five-year term of office. In February 2021, when the matter was still pending, the Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021, was introduced in Parliament, and since it was pending at the end of the session, an ordinance was issued in April 2021 and notified in June 2021.
However, following a legal challenge, the Court notably struck down several aspects of the ordinance, especially with regard to tenure, the composition of the Search and Selection Committee, the procedure for selection, and the minimum age for members. Notably, it also removed the provisions of the committee recommending two names for each post and being noncommittal on the decision for selection to be made, preferably within three months.
In August 2021, the Tribunals Reforms Bill was passed and it replaced the ordinance. It contained some of the provisions in the ordinance, which were struck down earlier. The Bill has since been challenged, and it would not be surprising if the Supreme Court strikes down the very same provisions of the ordinance that are now in the Bill.
As far as the AFT is concerned, the notable issue is the change in eligibility of its members. The change that has been effective by the Gazette Notification of 1 June 2017 is the addition in the eligibility for administrative members, which was earlier confined purely to military members.
The change introduced now includes ‘a person of ability, integrity and standing having special knowledge of and professional experience of not less than 20 years in economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration, or in any other matter, which in the opinion of the central government, is useful to the Armed Forces Tribunal’.
The broad-based nature of eligibility has opened the door, especially for the Civil Services cadre, and therefore it is not surprising that an Indian Defence Accounts Service (IDAS) officer, whose expertise is mostly restricted to financial regulations, is on the recent list. But it also raises certain issues.
One, the original formulation of restricting administrative members to military personnel was based on the supposition that because it deals with the Armed Forces, the specialised experience and knowledge would be particularly useful in carrying out their functions. It is difficult to believe that such functions can be carried out better by a person who lacks the experience, however proficient they may be in other fields. The AFT is as much a Specialist Tribunal. As the old saying goes, ‘Render unto Caesar that are Caesar’s…’ Conversely, would they agree to appoint Armed Forces officers with knowledge or experience in the required domains as members of other departmental tribunals?
Second, if the selection process adopted involved the Search and Selection Committee recommending two persons for one post, it should, in theory, be difficult for a Civil Services officer to outrank a military officer if usefulness to the tribunal is the main criterion. This calls into question the integrity of the selection process and the influence exerted by the Ministry of Defence.
Third, the Defence Secretary, who is the member-secretary of the Selection Committee, now has no vote. This is a positive move, but one that has not been proven in practice considering the selection of the IDAS officer.
Overall, filling all vacancies in the AFT should help reduce the number of pending cases to some extent. But for sure it will be undertaken in the shadow of the larger tussle between the judiciary and the executive. The shadow could once again hold up the next round of the selection process unless the judiciary and the executive are able to find an equilibrium. A prospect that requires optimism in the midst of signs to the contrary.
Lt Gen (Dr) Prakash Menon (retd) is Director, Strategic Studies Programme, Takshashila Institution; former military adviser, National Security Council Secretariat. He tweets @prakashmenon51. Views are personal.
(Edited by Tarannum Khan)