IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Writ Petition No. 10751 of 2012 (O&M)
Date of Decision: 20.11.2012
Navdeep Singh …Petitioner
Versus
Union of India and another ..Respondents.
CORAM: HON’BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE.
HON’BLE MR. JUSTICE RAKESH KUMAR JAIN.
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. A.S.Narang, Advocate and
Mr. R.S.Narang, Advocate, for the petitioner.
Mr. O.S.Batalvi, Standing Counsel for UOI-respondent No.1
Ms. Puneeta Sethi, Advocate, for respondent No.2.
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A.K.SIKRI C.J.(Oral)
The instant petition by way of public interest litigation filed under Articles 226 of the Constitution of India seeks the following reliefs:- “i) direct the respondents that in order to ensure independence of the Armed Forces Tribunal, the functioning of the said Tribunal may be supervised by the Ministry of Law & Justice rather than being placed under the Ministry of Defence as the parent Ministry as is the case at present, in line with the directions of the Hon’ble Supreme Court in Union of India Vs. R. Gandhi since the Armed Forces Tribunal Act, 2007, nowhere grants power to the Ministry of Defence to take over the rule making powers, authority, functioning, appointments, infrastructure, manpower or administrative support of the Tribunal and the term ‘Central Government, as existing in the Act can solely mean the Ministry of Law & Justice in consonance with the above decision of the Hon’ble Supreme Court and in light of the Constitutional Allocation of Business Rules which place ‘Administration of Justice’ in the singular domain of Ministry of Law & Justice;
ii) direct the respondents to ensure processing of appointments of Judicial Members of the Tribunal in a time bound manner especially in case of the Chandigarh Bench which has the heaviest workload in the country and largest area under its jurisdiction and where only one (1) Court out of three (3) is functional and that too particularly;
iii) direct the respondents to provide proper courtesy, protection, infrastructure and security to the institution of the Tribunal, more so in light of the fact that it is performing Criminal Appellate functions besides original jurisdiction, in line with the directions of the Hon’ble Supreme Court in re; Incident Related to Criminal intimidation to Member of CAT Vs. UOI (Writ Petition (Criminal) No. 23 of 2008 decided on 25.08.2009) with a further prayer that proper facilities including accommodation may be provided to members to ensure that they are able to render service in a judicial capacity in a free, fair and fearless environment devoid of any pressures or encumbrances;
iv) direct the respondent no.1 to look into all issues raised in the instant petition by way of constitution of an independent committee to analyse and to sensitize and rein in the functioning of respondent No.2 as far as issues related to litigation involving defence personnel, disabled soldiers and widows are concerned.”
2. In nut shell, this petition seeks the following directions:-
a) the functioning of the Armed Forces Tribunal (AFT) be brought under the supervision of Ministry of Law & Justice instead of Ministry of Defence at present.
b) The appointments of judicial members of the Tribunal at the Chandigarh Bench be made immediately.
c) Proper infrastructure and security be provided to the institution of AFT and its members including facility of residential accommodation.
3. It is a matter of record that the idea of AFT initially germinated as a result of the observations of the Hon’ble Supreme Court in Lt. Col. Priti Pal Singh Bedi Vs. Union of India 1982 AIR 1413 wherein the Hon’ble Supreme Court emphasized the requirement of an independent judicial body to deal with law related to military personnel. Through the march of time and various reports of numerous committees and commissions, including the law commission, the idea culminated into the formation of the AFT through the Armed Forces Tribunal Act, 2007 (for short ‘the Act’). The cardinal principle behind all such reports and observations of the Courts and also the statement of objects and reasons was singular, that is, ‘Independence’.
4. As may be seen from the Act, Sections 1(2) and 4, the Tribunal is to be established by the Central Government, that is, the Government of India, without any mention of the Ministry that would be dealing with the establishment, functioning, infrastructure and other ancillary modalities of the said Tribunal. Needless to say, 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 Tribunal.
5. The Act only prescribes for the establishment of the Tribunal by the Central Government, it does not mention as to which Ministry of the Central Government should or would wield control over the Tribunal or whether it would be the Ministry of Law and Justice or some other Ministry. The Act also enjoins upon the Central Government the power to make Rules vide Section 41 of the Act. Again, it is not prescribed whether the term Central Government would refer to the Ministry of Law & Justice or some other Ministry. It is however, manifest that ‘Administration of Justice’ is a subject matter of the Department of Justice under the Ministry of Law and Justice as per the Constitutional Allocation of Business Rules.
Notwithstanding the above, the petitioner complains that for reasons best known to the respondents, the Ministry of Defence has been made the Parent Administrative Ministry of the AFT and is wielding all pervasive control over the Tribunal and is also the Rules Making and Appointment Authority not only for the staff but also of the Judicial and Administrative Members of the Tribunal.
6. According to the petitioner, this is patently incorrect and is also in teeth of the judgment of the Hon’ble Apex Court in Union of India Vs. R.Gandhi, President, Madras Bar Association 2010(6) SCR 857 wherein the Supreme Court in no uncertain and definite terms has held and passed positive directions that Tribunals shall only be provided in support by the Ministry of Law & Justice and not under any parent Department, the issue is related to which it is adjudicating. Following observations from the said judgment infact clinch the issue:-
“Recommendations for better working of Tribunals
20. Only if continued judicial independence is assured, Tribunals can discharge judicial functions. In order to make such independence a reality, it is fundamental that the members of the Tribunal shall be independent persons, not civil servants. They should resemble courts and not bureaucratic Boards. Even the dependence of Tribunals on the sponsoring or parent department for infrastructural facilities or personnel may undermine the independence of the Tribunal (vide : Wade & Forsyth : `Administrative Law’ – 10th Edn., pp.774 and 777).
21. The Leggatt Committee’s Report explained the task of improving the Tribunals thus:
“There are 70 different administrative tribunals in England and Wales, leaving aside regulatory bodies. Between them they deal with nearly one million cases a year, and they employ about 3,500 people. But of these 70 tribunals only 20 each hear more than 500 cases a year and many are defunct. Their quality varies from excellent to inadequate. Our terms of reference require them to be rendered coherent. So they have to be rationalized and modernized; and this Review has as its four main objects: first, to make the 70 tribunals into one Tribunals System that its members can be proud of; secondly, to render the tribunals independent of their sponsoring departments by having them administered by one Tribunals Service; thirdly, to improve the training of chairmen and members in the interpersonal skills peculiarly required by tribunals; and fourthly, to enable unrepresented users to participate effectively and without apprehension in tribunal proceedings.”
The Leggatt Committee explained what the users of the system expected from an alternative public adjudication system:
“We do not believe that the current arrangements meet what the modern user needs and expects from an appeal system running in parallel to the courts. First, users need to be sure, as they currently cannot be, that decisions in their cases are being taken by people with no links with the body they are appealing against. Secondly, a more coherent framework for tribunals would create real opportunities for improvement in the quality of services that can be achieved by tribunals acting separately. Thirdly, that framework will enable them to develop a more coherent approach to the services which users must receive if they are to be enabled to prepare and present cases themselves. Fourthly, a user-oriented service needs to be much clearer than it is now in telling users what services they can expect, and what to do if the standards of these services are not met.”
The Leggatt Committee expressed the view that a single structure for all Tribunals would achieve independence and effective functioning of the Tribunal. It stated:
“There is only one way to achieve independence and coherence: to have all the tribunals supported by a Tribunals Service, that is, a common administrative service. It would raise their status, while preserving their distinctness from the courts. In the medium term it would yield considerable economies of scale, particularly in relation to the provision of premises for all tribunals, common basic training, and the use of IT. It would also bring greater administrative efficiency, a single point of contact for users, improved geographical distribution of tribunal centres, common standards, an enhanced corporate image, greater prospects of job satisfaction, a better relationship between members and administrative staff, and improved career patterns for both on account of the size and coherence of the Tribunals Service. It should be committed by Charter to provide a high quality, unified service, to operate independently, to deal openly and honestly with users of tribunals, to seek to maintain public confidence, and to report annually on its performance.” The report expressed the view that the independence of tribunals would best be safeguarded by having their administrative support provided by the Lord Chancellor’s Department as he is uniquely placed to protect the independence of those who sit in tribunals as well as of the judiciary, through a Tribunals Service and a Tribunals System analogous with, but separate from, the Court Service and the courts. Most of the recommendations of the Leggatt Report were accepted and culminated in the `Tribunals, Courts & Enforcement Act, 2007′. The Act recognizes that Tribunals do not form part of administration, but are machinery of adjudication. As a result of the said Act, the appointments to Tribunals are on the recommendations of a Judicial Appointments Commission. The sponsoring Department (that generates the disputes that the Tribunal will have to decide) has no say in the appointments. Neither the infrastructure nor the staff are provided to the Tribunals by the sponsoring Parent Department. The Tribunals have become full-fledged part of Judicial system with no connection or link with the `parent department’. A common Tribunal service has been established as an executing agency in the Ministry of Law & Justice.”
22. This Court, in L. Chandra Kumar, made similar suggestions for achieving the independence of Tribunals:
“It has been brought to our notice that one reason why these Tribunals have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements…. The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds arc allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.”
23. But in India, unfortunately Tribunals have not achieved full independence. The Secretary of the concerned `sponsoring department’ sits in the Selection Committee for appointment. When the Tribunals are formed, they are mostly dependant on their sponsoring department for funding, infrastructure and even space for functioning. The statutes constituting Tribunals routinely provide for members of civil services from the sponsoring departments becoming members of the Tribunal and continuing their lien with their parent cadre. Unless wide ranging reforms as were implemented in United Kingdom and as were suggested by Chandra Kumar are brought about, Tribunals in India will not be considered as independent.
Whether the Government can transfer the judicial functions traditionally performed by courts to Tribunals?
7. That while summing up the law related to functioning of almost all Tribunals in the country and not just of the Company Law Appellate Tribunal which was the subject matter of the petition, the Supreme Court passed the following directions in paragraph No. 56 of the aforesaid judgment cited supra:-
“(xiii) The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.”
8. On the strength of the abovestated observations and dicta of the Supreme Court in R.Gandhi’s case (supra), the petitioner has prayed that control of the Administrative Ministry namely Ministry of Defence be removed and Armed Forces Tribunal should come under the supervision of Department of Justice under the Ministry of Law & Justice.
9. These issues hardly need any adjudication in view of the positive stand taken by the Ministry of Law & Justice as well as the Ministry of Defence. Ministry of Law & Justice has, in its reply, supported this plea of bringing the Armed Forces Tribunal under its jurisdiction. It has referred to the another seven Judges Bench of Hon’ble Supreme Court in L. Chandra Kumar Vs. Union of India and others AIR 1997 Supreme Court 1125 wherein the Hon’ble Supreme Court had considered the functioning of various Tribunals and observed that there is no uniformity in administration in case of Tribunals created by Parliamentary Legislations. Following specific averments are made by the Ministry of Law & Justice in para No.2 thereof. The Apex Court further observed that unless a wholly independent agency of all such Tribunals is set up, it is desirable that all such Tribunals, as far as possible, be under a single Nodal Ministry, which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It should be open for the Ministry, in turn, to appoint an independent supervisory body to oversee the working of the Tribunals. The creation of a single umbrella organization will remove many of the ills of the present system. The relevant extracts of the aforesaid judgments are reproduced as follows:-
“The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds arc allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.
The suggestions that we have made in respect of appointments to Tribunals and the supervision of their administrative function need to be considered in detail by those entrusted with the duty of formulating the policy in this respect. That body will also have to take into consideration the comments of experts bodies like the LCI and the Malimath Committee in this regard. We, therefore, recommend that the Union of India initiate action in this behalf and after consulting all concerned, place all these Tribunals under one single nodal department, preferably the Legal Department.”
10. It is further stated in the affidavit that acting on the aforesaid observations/recommendations of the Supreme Court, the Department of Legal Affairs and Department of Justice have made the efforts since 1997 to set up a Central Tribunal Division (CTD) in the Ministry for the limited purpose of bringing umbrella legislation in respect of tenure, terms and conditions of service of office bearers of the Tribunals and to deal with the matters relating to the code of conduct, enquiry into complaints or allegations against them. It is also emphasized that several attempts have been made to collect information about the Tribunals and move the proposal for decision by the competent authority for setting of a CTD. However, no success has been achieved as most of the Ministries/Departments presently dealing with the Tribunals, have not favoured the proposal for creation of CTD to deal with all the Tribunals. Reference is also made to the judgment in R.Gandhi’s case (supra) which has observed that “unless wide ranging reforms as were implemented in United Kingdom and as were suggested by L. Chandra Kumar are brought out, Tribunals in India will not be considered as independent”. The tenor of this affidavit is that these Tribunals including Armed Forces Tribunal should be brought under the Department of Justice in the Ministry of Law and Justice.
11. Though the Department of Justice may not have so far succeeded in convincing other Ministries/Departments about setting of CTD, in the reply filed by the Ministry of Defence, it has asserted that wherever the provisions of the Act referred to ‘Central Government’ in the context of this Act, it would mean Ministry of Defence. Following pertinent response is given in the affidavit with reference to the judgment of the Supreme Court in R.Gandhi’s case (supra):-
“The petitioner has also stated that the functioning of the AFT may be supervised by Ministry of Law and Justice rather than Ministry of Defence and has quoted the directions of the Apex Court in Union of India Vs. R.Gandhi. In this regard, it is stated that on the directions of the Apex Court for constitution of an institution/system for all Tribunals to achieve independence and effective functioning of Tribunals, Department of Justice under Ministry of Law & Justice had already circulated a Draft Note for the Cabinet on the subject of “Setting up of a Central Tribunal Division” for comments of various Ministries/Departments. Ministry of Defence conveyed to Ministry of Law & Justice in February, 2011 that this Ministry broadly agreed with the proposal made in the Draft Cabinet Note regarding setting up of a Central Tribunal Division and that Division should exercise the administrative and not judicial oversight over the functions of the Tribunals. Further, the subject matter of the Armed Forces Tribunal and any amendments thereof would continue to be dealt with by the Ministry of Defence.”
12. Thus, it is categorically stated that insofar as the Ministry of Defence is concerned, it agrees with the proposal of setting of CTD. Even otherwise, as far as the position in law is concerned, the same is amply clear from the mandate of Supreme Court in L. Chandra Kumar’s and R.Gandhi’s cases (supra) which is the law declared by the Supreme Court and is binding on all concerned under Article 141 of the Constitution.
13. Thus, insofar as the Armed Forces Tribunal is concerned, there is hardly any issue that it be brought within the control of Department of Justice in the Ministry of Law & Justice. Mechanism for control over the Armed Forces Tribunal can be worked out by the Department of Justice in the Ministry of Law & Justice. Accordingly, we issue a direction to this effect.
14. Insofar as filling up of the posts of the members of the Tribunal are concerned, we may point out that Rule 3 of the Armed Forces Tribunal (Procedure for Appointment of Vice-Chairperson and other Members) Rules, 2008, deals with the constitution of the Selection Committee for making such appointments, which reads as under:-
a) Sitting Judge of the Supreme Court Chairperson nominated by the CJI.
b) Chairperson, Armed Forces Tribunal: Member.
c) Secretary to the Government of India, Member Ministry of Defence.
d) Secretary, Government of India, Member Ministry of Law & Justice, Department of Legal Affairs.”
15. Once the Armed Forces Tribunal is brought under the Ministry of Law & Justice, any amendment to be made in Rule 3 of the aforesaid Rules, can also be carried out as a consequence thereof.
16. As far as filling up of the vacancies of Chandigarh Bench are concerned, it is pointed out that earlier two vacancies of judicial members out of three judicial members were vacant. However, one of the two vacancies has since been filled up on the joining of said members’ w.e.f. 15.06.2012. As regards other vacancies which fell vacant on 28.01.2012, it is stated that a candidate was recommended but he declined to join and thereafter the wait listed candidate too declined to join. The vacancy was recirculated in June, 2012; meeting of Selection Committee was held on 22.08.2012 for selection of suitable candidates and further action is being taken to fill up the vacancy at the earliest. We hope that this would be done in near future and all the vacancies of three judicial members would stand filled up.
We thus dispose of this writ petition in the aforesaid terms with the direction to the respondents to take immediate steps on the lines stated above.
(A.K.SIKRI)
CHIEF JUSTICE
20.11.2012 (RAKESH KUMAR JAIN)
‘ravinder’ JUDGE
