Defence Ministry’s approach to litigation Misdirected, Highly Adversarial and Sadistic (Part I) By Maj Navdeep Singh
"https://barandbench.com/defence-ministry-approach-to-litigation-misdirected-highly-adversarial-and-sadistic-part-i/"
Article contributed by Col Manohar Ramtri Email - ramtri@gmail.com
Article contributed by Col Manohar Ramtri Email - ramtri@gmail.com
This
might be the oddest and longest opinion piece I have penned, and therefore it is
in two parts, albeit being published simultaneously. And again, like many times
before, I must forewarn that this is written to encourage discussion and
introspection, not to cause commotion, disparage any entity, or to provide
leverage to pessimistic sentiment.
In the late 1990s/early 2000s, as per the then existing roster of the Punjab & Haryana High Court, litigation related to service matters of the Union of India was being allotted to Justice RL Anand, a strong but humane and sensitive judge.
In the late 1990s/early 2000s, as per the then existing roster of the Punjab & Haryana High Court, litigation related to service matters of the Union of India was being allotted to Justice RL Anand, a strong but humane and sensitive judge.
The
judge was of course referring to the blind opposition put forth by the Defence
Ministry in all cases with the singular aim of defeating the other side,
sometimes fairly, and at other times by attempting to play smart. Of course,
during those days, litigation used to end at the High Court. About a decade
later, things came to pass that the MoD, in its avatar of an insensitive raging
bull, ensured by 2014 that more than 90% of its litigation in the highest court
of the land comprised appeals filed against disability benefits to its own
maimed and disabled soldiers, at times involving amounts as little as a few
hundred rupees, in matters already well settled by law.
While the Army commands utmost respect in our society, and deservedly so, and rightly remains one of the most venerable institutions in all facets, the track record of the MoD in litigation shows an utter lack of grace and total absence of moral courage in admitting a fault. The objective solely remains to prove a litigant wrong and wear him or her out by contesting each and every claim, even if covered by existing decisions of Constitutional Courts or by the Government’s own policy, and at times also to subtly inject wrong information in Court proceedings or attempt to colour or influence the proceedings with one-way information by keeping it hidden from the litigant.
Litigation is treated as highly adversarial, as if it is some kind of war being raged against petty employees which has to be won at any cost! Most of the pleas are opposed out of ego and most of the appeals are filed out of prestige. So much so, that this hook or crook attitude to ‘win’ cases has, in the past decade or so, assumed alarming proportions, with patently false information being projected right till the Supreme Court.
The dogged persistence to resist judicial dicta was again visible earlier this week in Lt Gen Manomoy Ganguly v. Union of India [Writ Petition (Civil) 980/2018 decided on 29-10-2018] wherein a Lieutenant General was made to undergo four to five rounds of litigation to get what he could have been granted in the first go. The Supreme Court has now put an end to his agony.
While the Army commands utmost respect in our society, and deservedly so, and rightly remains one of the most venerable institutions in all facets, the track record of the MoD in litigation shows an utter lack of grace and total absence of moral courage in admitting a fault. The objective solely remains to prove a litigant wrong and wear him or her out by contesting each and every claim, even if covered by existing decisions of Constitutional Courts or by the Government’s own policy, and at times also to subtly inject wrong information in Court proceedings or attempt to colour or influence the proceedings with one-way information by keeping it hidden from the litigant.
Litigation is treated as highly adversarial, as if it is some kind of war being raged against petty employees which has to be won at any cost! Most of the pleas are opposed out of ego and most of the appeals are filed out of prestige. So much so, that this hook or crook attitude to ‘win’ cases has, in the past decade or so, assumed alarming proportions, with patently false information being projected right till the Supreme Court.
The dogged persistence to resist judicial dicta was again visible earlier this week in Lt Gen Manomoy Ganguly v. Union of India [Writ Petition (Civil) 980/2018 decided on 29-10-2018] wherein a Lieutenant General was made to undergo four to five rounds of litigation to get what he could have been granted in the first go. The Supreme Court has now put an end to his agony.
Some
recorded instances of unethical stands in Courts
Even
off hand, many cases come to mind where incorrect submissions are thankfully
recorded in the judgments, for posterity, though this is only a minuscule part
of the malaise.
In PK Kapur v. Union of India (Civil Appeal 4356/2006 decided on 01-02-2007), where the litigant was appearing in person for extension of certain pensionary benefits as provided to post-1996 retirees to pre-1996 retirees also, the Ministry of Defence put across the plea of an Office Memorandum (OM) issued on 3rd February 2000 which restricted the benefits only to post-1996 retirees.
However, the MoD deliberately did not inform the Court that the Department of Pensions & Pensioners’ Welfare had already extended the benefit of the post-1996 OM dated 3rd February 2000 to pre-1996 retirees vide a fresh OM issued on 9th Sept 2001. The litigant lost his case and it was only years later in KJS Buttar v. Union of India (Civil Appeal 5591/2006 decided on 31-03-2011) that the correct law was affirmed by the Supreme Court.
The MoD however still chose to carry on appealing in cases which were disposed by various courts and tribunals citing the decision in KJS Buttar’s case. Ultimately, it was a three-judge Bench in Union of India v. Ram Avtar (Civil Appeal 418/2012 decided in December 2014) which settled the law. It is yet another sad story that the MoD has again filed a similar appeal in the already well-settled subject as recently as in July 2018.
In Secretary MoD Ajeet Singh v. Union of India (Civil Appeal 16/2003 decided on 06-05-2009), the MoD informed the Supreme Court that a minimum of ten years of service is required to earn a disability pension, while the truth is that there is no minimum qualifying service required for the said pension, and a disabled soldier with even a single day of service is entitled to the same.
In PK Kapur v. Union of India (Civil Appeal 4356/2006 decided on 01-02-2007), where the litigant was appearing in person for extension of certain pensionary benefits as provided to post-1996 retirees to pre-1996 retirees also, the Ministry of Defence put across the plea of an Office Memorandum (OM) issued on 3rd February 2000 which restricted the benefits only to post-1996 retirees.
However, the MoD deliberately did not inform the Court that the Department of Pensions & Pensioners’ Welfare had already extended the benefit of the post-1996 OM dated 3rd February 2000 to pre-1996 retirees vide a fresh OM issued on 9th Sept 2001. The litigant lost his case and it was only years later in KJS Buttar v. Union of India (Civil Appeal 5591/2006 decided on 31-03-2011) that the correct law was affirmed by the Supreme Court.
The MoD however still chose to carry on appealing in cases which were disposed by various courts and tribunals citing the decision in KJS Buttar’s case. Ultimately, it was a three-judge Bench in Union of India v. Ram Avtar (Civil Appeal 418/2012 decided in December 2014) which settled the law. It is yet another sad story that the MoD has again filed a similar appeal in the already well-settled subject as recently as in July 2018.
In Secretary MoD Ajeet Singh v. Union of India (Civil Appeal 16/2003 decided on 06-05-2009), the MoD informed the Supreme Court that a minimum of ten years of service is required to earn a disability pension, while the truth is that there is no minimum qualifying service required for the said pension, and a disabled soldier with even a single day of service is entitled to the same.
In Bhola
Singh v. Union of India (Civil
Appeal 4486/2002 decided on 10-10-2010), the MoD informed the Supreme Court that
there is a requirement of minimum 15 years of service to earn the “Service
Element” of Disability Pension. While doing so, it projected outdated
Regulations before the Court and also wrongly cited the regulation for “Service
Pension” rather than “Service Element of Disability Pension”, while in reality
the minimum service requirement for Service Element stood abrogated from 1st
January 1973.
The same trick by citing Bhola Singh’s decision was sought to be applied in another bunch matter being heard by the same presiding judge in Union of India v. Sinchetty Satyanarayan (Special Leave Petition 20868/2009 decided on 23-02-2012), but since this time there were multiple lawyers available to rebut the untruth, the MoD quietly withdrew its appeals and conceded the matter when caught on the wrong foot in the Supreme Court.
In Union of India v. Karan Singh (Special Leave Petition 37928/2012 decided on 10-02-2014), the MoD filed an appeal in a particular matter of a disabled soldier when the Defence Minister had already directed the withdrawal of such appeals through an explicit instruction. When this was pointed out in the Court by the counsel for the disabled soldier, the appeal was quietly withdrawn by the MoD.
In Air Vice Marshal Harish Masand v. Union of India [119 (2005) DLT 152 decided on 08-11-2004] wherein the Delhi High Court was dealing with the promotion of senior officers of the Air Force, there was a crude attempt to mislead and misguide the judicial process by filing false affidavits. The Delhi High Court thus observed,
“If one carefully goes through the note, the least we can observe is that at such highest level instead of placing the truth, ways and means were devised by XXXXX and others who were present in the meeting to conceal the truth. If this could happen at that level, how the rule of law and faith of the Court in the affidavits filed by the Government would survive. We are shocked that ways and means were devised by an officer of the rank of Air Marshal to hide from the Court what was against the Air Headquarters. It was a fit case where we would have ordered appropriate actions to be taken against XXXXX, however, we were told that he has retired in September this year. Therefore, we do not contemplate any action”.
The same trick by citing Bhola Singh’s decision was sought to be applied in another bunch matter being heard by the same presiding judge in Union of India v. Sinchetty Satyanarayan (Special Leave Petition 20868/2009 decided on 23-02-2012), but since this time there were multiple lawyers available to rebut the untruth, the MoD quietly withdrew its appeals and conceded the matter when caught on the wrong foot in the Supreme Court.
In Union of India v. Karan Singh (Special Leave Petition 37928/2012 decided on 10-02-2014), the MoD filed an appeal in a particular matter of a disabled soldier when the Defence Minister had already directed the withdrawal of such appeals through an explicit instruction. When this was pointed out in the Court by the counsel for the disabled soldier, the appeal was quietly withdrawn by the MoD.
In Air Vice Marshal Harish Masand v. Union of India [119 (2005) DLT 152 decided on 08-11-2004] wherein the Delhi High Court was dealing with the promotion of senior officers of the Air Force, there was a crude attempt to mislead and misguide the judicial process by filing false affidavits. The Delhi High Court thus observed,
“If one carefully goes through the note, the least we can observe is that at such highest level instead of placing the truth, ways and means were devised by XXXXX and others who were present in the meeting to conceal the truth. If this could happen at that level, how the rule of law and faith of the Court in the affidavits filed by the Government would survive. We are shocked that ways and means were devised by an officer of the rank of Air Marshal to hide from the Court what was against the Air Headquarters. It was a fit case where we would have ordered appropriate actions to be taken against XXXXX, however, we were told that he has retired in September this year. Therefore, we do not contemplate any action”.
Further
observing the machinations, the Court recorded,
“What
affidavit to be filed in the High Court in the present case, how Court should be
misled, how truth should not come before the Court, ingenuity on the part of Air
Headquarters to deny justice to the petitioner would not have been unrevealed
but for a note recorded by XXXXX, Joint Secretary, Ministry of
Defence.”
Of
course, such attempts have since been made multiple times, especially in cases
involving promotions of officers, and have not been appreciated by courts and
tribunals.
In Amar
Chand Suhag v. Union of India (Civil
Writ Petition 5041/2004 decided on 11-08-2006), the MoD again projected an
outdated regulation to deny benefits to a disabled soldier. When the Court was
apprised of the reality, the MoD was fined by the Punjab & Haryana High
Court, which also recorded the following in the order
“…but
we are constrained to observe that the respondents while reproducing the
relevant legal provision pertaining to the assessment of disability pension have
concealed the Regulations”.
Needless
to state, the concealment in this case was not by the MoD per se, but by
the Regimental Records Office of the Army.
In
yet another shocking case of Lt
Col RK Rai v. Union of India (Civil
Appeal 3101/2015 decided on 16-02-2018), the MoD chose to contest a case against
grant of disability benefits to a disabled officer who had sought premature
retirement from the Army despite the fact that the government itself had issued
a letter on 19-05-2017 authorizing disability pension to such voluntary
retirees. Though the said letter is fully discussed in the final order of the
Court, it is beyond comprehension why the same was contested and not conceded at
the outset or even declared infructuous when it was fully covered by
government’s own policy.
In Union
of India v. Balbir Singh (Civil
Appeal D 4893/2018 decided on 09-03-2018), the MoD appealed in matters
concerning soldiers of the lower ranks which had already been decided by the
Supreme Court and the High Courts. The Supreme Court imposed costs of Rs 1 lakh
and observed,
“This
appeal was filed well after several similar matters were dismissed by this
Court. We cannot appreciate the conduct of the Union of India in this regard of
filing civil appeals/special leave petitions after the issue has been concluded
by this Court. This is unnecessarily adding to the burden of the Justice
Delivery Systems for which the Union of India must take full
responsibility.”
Recently,
in Union of India v. Prithvi Singh (Civil Appeal D 8754/2018
decided on 25-04-2018), the Supreme Court imposed a fine of Rs. 1 lakh on the
Union of India for repeatedly filing appeals in matters finally settled by the
High Court and affirmed thereafter by the Supreme Court. The Apex Court
observed,
“The
couldn’t-care-less and insouciant attitude of the Union of India with regard to
litigation, particularly in the Supreme Court, has gone a little too far as this
case illustrates…The Union of India must appreciate that by pursuing frivolous
or infructuous cases, it is adding to the burden of this Court and collaterally
harming other litigants by delaying hearing of their cases through the sheer
volume of numbers.
If
the Union of India cares little for the justice delivery system, it should at
least display some concern for litigants, many of whom have to spend a small
fortune in litigating in the Supreme Court…To make matters worse, in this
appeal, the Union of India has engaged 10 lawyers, including an Additional
Solicitor General and a Senior Advocate! This is as per the appearance slip
submitted to the Registry of this Court.
In
other words, the Union of India has created a huge financial liability by
engaging so many lawyers for an appeal whose fate can be easily imagined on the
basis of existing orders of dismissal in similar cases. Yet the Union of India
is increasing its liability and asking the taxpayers to bear an avoidable
financial burden for the misadventure…
…To
say the least, this is an extremely unfortunate situation of unnecessary and
avoidable burdening of this Court through frivolous litigation which calls for
yet another reminder through the imposition of costs on the Union of India while
dismissing this appeal. We hope that someday some sense, if not better sense,
will prevail on the Union of India with regard to the formulation of a realistic
and meaningful National Litigation Policy and what it calls ‘ease of doing
business’, which can, if faithfully implemented benefit litigants across the
country.”
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 first of a two-part series.
****************************************
The Defence
Ministry’s approach to litigation: Misdirected, Highly Adversarial and
Sadistic (Part II)
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
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