We hope that this session was successful in providing a comparative overview, demonstrating that fair military justice systems are not all the same and that the United States at least might consider the approaches of its key allies as it contemplates further revisions to its military justice system.
From this summary of a comparative military justice panel at the 2025 CLE program sponsored by the U.S. Court of Appeals for the Armed Forces. Other materials from the program can be found here.
The professional head of the
Royal Navy, Adm Sir Ben Key KCB CBE is under investigation for an
alleged breach of the Values of the Royal Navy involving an extra-marital
affair with a junior, female officer. The allegation is unlikely to be
dealt with via a Court Martial, which would have probably made him the most
senior naval officer to face a Court Martial since Adm Byng, indeed as First Sea Lord he would be senior to
Adm Byng. However, instead Key will be dealt with using Major Administrative
Action a form of work place discipline administered by the chain of command.
Whilst he will be able to instruct a lawyer to write representations on his
behalf he will not be able to have legal representation in any
hearing/meeting.
As a single service policy it is
hard to see who would form Key's chain of command. The Secretary of State for
Defence is likely to be involved but the decision maker is likely to be Key's
predecessor as First Sea Lord and now Chief of the Defence Staff, Adm Sir Tony Radakin KCB ADC. In that case, Key can expect
little mercy as Radakin is an enthusiastic supporter of the Unacceptable Sexual
Behaviours policy which mandates termination of service for those found on the
balance of probabilities to have displayed unacceptable sexual behaviour: a lewd
remark addressed to person A which offends person B will suffice.
Key's routes of appeal are
limited. He may lodge a Service Complaint, an internal complaints process described
a neither 'efficient, effective or fair' in a recent parliamentary
report. If he believes he was discriminated against (unlikely in the
circumstances) he could bring a claim in the Employment Tribunal. Otherwise his
only avenue would be a judicial review. A complicated and expensive process
which would see the former professional head of His Majesty's Navy litigating against
His Majesty's Secretary of State for Defence. The prohibitive costs and
reputational impact of such an action are well known and no doubt relied upon
by those who do not wish due process brought into their internal system.
For an officer like Key whose
pension is secure and who will not be reliant on Service accommodation the
implications are limited; an ignominious end to a successful career. For more
junior ranks though this process can lead to the loss of their home and
hundreds of thousands of pounds of lost pay, resettlement and pension. Major Administrative
Action is an important tool for the chain of command but those at the top of
the chain are beginning to experience the system from the sharp end. It is to
be hoped it will lead to some reform.
ADDENDUM: Meanwhile the BBC alleges Key's likely replacement as First Sea Lord, Gen Sir Gwyn Jenkins KCB OBE RM, has been complicit in the covering up of war crimes by the SAS. If true (the allegations are hotly denied) it would unquestionably amount to a breach of the Values of the Royal Navy, not to mention Misconduct of Public Office and conspiracy to Pervert the Course of Justice. Meanwhile, the former Chief of the General Staff, the professional head of the British Army, Gen (Rtd) Sir Mark Carleton-Smith KCB CBE ADC faces less serious but related allegations of failing to report evidence of the same war crimes. Carleton-Smith denies the allegations.
Disservice
to the military Florence Nightingale undone by the Supreme Court
Ananya Sharma
and Roopan Atwal
A Division Bench
of the Supreme Court comprising Justice PS Narsimha and Justice Manoj Misra recently
paved the way for the first ex-Military Nursing Service (MNS) Short Service Commissioned
Officer (SSCO) to be inducted into the Punjab Civil Services under the
Ex-Servicemen (ESM) category (Civil Appeal 5235/2025 Irwan Kour Vs Punjab
Public Service Commission & Ors decided on 16-04-2025). Captain
Gurpreet Kaur, a retired MNS officer took the Punjab Civil Services (PCS)
Examination – 2020 under the ESM category, sans the apprehension that an
uphill and long legal battle awaited her. It is yet another story that despite
women now being an integral part of the mainstream Defence Services, the
terminology “Ex-ServiceMAN” has still not been changed into a gender-neutral
term, such as “Ex-Servicemember” or “Ex-Service Personnel”, but we will leave
that for another day.
Capt Kaur’s
candidature for the PCS was rejected by the Punjab Public Service Commission on
the ground that being an officer of the MNS, she could not be considered an ESM
in terms of some correspondence received from the Kendriya Sainik Board.
On the last working day of the then Acting Chief Justice, Justice Ritu Bahri (before
she joined as the Chief Justice of the Uttarakhand High Court), a Division
Bench of the Punjab and Haryana High Court comprising her and Justice Aman
Chaudhary had ruled Capt Kaur to be fully falling within the definition of ESM
as per the Punjab
Recruitment of Ex-servicemen Rules, 1982 (“State Rules, 1982”). The
Bench directed the State of Punjab to appoint her as a PCS officer with
notional benefits of service (LPA
636/2022 Gurpreet Kaur Vs Punjab Public Service Commission
decided on 03-02-2024).
A private
Respondent before the High Court, namely, Ms Irwan Kour, (a retired officer
from the Army Medical Corps who had also applied under the ESM category and was
appointed as a PCS officer), had impleaded herself as a party before the High
Court and challenged the decision through a Special Leave Petition before the
Supreme Court on various grounds, including that it had been clarified by the
Central Government that the Central
Ex-Servicemen Amendment Rules, 2012 (“Central Amended Rules, 2012”) would not
cover MNS officers in the definition of ESM, and further, that the directions
of the High Court in appointing Capt Kaur would endanger the Appellant’s
position as an already serving PCS officer.
THE HISTORY OF
MILITARY NURSING SERVICE AND THE UNNECESSARY ARTIFICALLY CREATED CONTROVERSY
The MNS has its
origins in 1888. The MNS in the current form was raised as an “Armed Force” of
the Union of India as part of the Indian Army vide an Ordinance in the year 1943
and is duly recognized as an integral part of the Armed Forces of India. The
members of MNS are appointed by the Central Government with a commissioned rank
of the Indian Army. The MNS is the only all-woman branch of the Defence Services
in India.
Historically,
retired MNS officers were provided ESM benefits under the Central Ex-Servicemen
Rules, 1979 which defined “Ex-Servicemen” as those who retired or were released
on competition of terms from the “Armed Forces” of the Union of India. The
pensioners from the MNS from the Permanent Commission Cadre were treated as ESM
and so were the SSCOs of the MNS who were compulsorily released after a minimum
5 years of service. However, over the years, the Central Rules were amended and
the term “Armed Forces” was replaced with “Regular Army” (See the Central
Ex-Servicemen Amendment Rules, 2012/”Central Amended Rules, 2012”) with the
purpose of distinguishing Defence Services (Army, Navy and the Air Force) from
other Armed Forces, such as the Central Armed Police Forces (CAPFs), such as
the BSF, CRPF etc., which are also officially categorized as “Armed Forces” of
the Union of India.
Hyper-technically
picking on this change in terminology, the Kendriya Sainik Board, which
functions under the Ministry of Defence (MoD) issued letters in 2019 and 2021 stating
that the MNS officers are not ESM since the MNS did not fall within the
“Regular Army”. This despite the fact that in 2014, the same Kendriya Sainik
Board had clarified that MNS would, in fact, fall under the definition of
ESM. It was only from 2019 onwards that their stance seemed to switch from the
logical to the absurd, just because apparently some MNS officers had applied to
be appointed for posts under various Sainik Boards. What was interesting to
note in this was that the Kendriya Sainik Board has no standing to
comment on statutory rules under the Constitutional Rules of Business
and is merely a board looking after various welfare activities under the MoD.
Interestingly,
as far as the Central Amended Rules, 2012 were concerned, the matter was
thereafter taken up by the Chiefs of Staff Committee which is the apex body of
the Defence Services, which agreed with an earlier High-Level Committee on the
subject under the MoD, on its findings that the ESM status of MNS officers was
“well-established”. The observation of the committee was ultimately approved by
the Defence Minister. Despite the approval, the Kendriya Saink Board
continued to refuse issuance of ESM cards to MNS Officers.
The
worst effect of this was on SSCOs of the MNS who now, after their release from
MNS in five or more years without pension, became unemployable for civil government
jobs since they were now being released on completion of their contractual
service in middle age without any reservations or benefits of their military
service and without any age relaxation as is applicable to ESM, thus leading to
an uncertain future at a time when familial responsibilities are at peak.
Military service, hence, became a disqualification rather than a qualification
as compared to their peers who joined other services and organizations, and
also male and female officers joining branches of the Army other than the MNS who
faced no such disqualification. Not only was this discriminatory and illogical,
but also highly exploitative of young women who served in the MNS during the
times of their lives only to be discarded and left unemployable, having crossed
the prime of their lives and rendered ineligible due to age and other criteria
due to time spent in the military.
THE CASE AND THE JUDGMENTS OF THE HIGH COURT AND THE
SUPREME COURT
The
argument of Capt Kaur before the Courts was that Central Amended Rules, 2012
would not apply to recruitments made under the State of Punjab, as the State
Rules of 1982 were enacted by the State in exercise of powers under Article 309
of the Constitution, and the State Rules, 1982 which were substantially
different than the Central Amended Rules, 2012, provided for the requirement of
a person to have served in the “Military” and the “Armed Forces” to be eligible
for ESM status, and not the “Regular Army” which was a term used in the Central
Amended Rules, 2012. Capt Kaur had also argued, that in any case, the MNS would
also very much fall within the definition of “Regular Army” since the branch
was recognized by the Army Act as a part of the Regular Army and also by the
Defence Services Regulations.
The
High Court and the Supreme Court agreed with such contention and rejected the ground
urged by the State of Punjab that the clarifications issued by the Kendriya
Sainik Board, an advisory body for re-settlement and welfare of retired
personnel, would have any bearing over the Punjab State Rules, 1982.
The
Supreme Court finally found Capt Kaur eligible to be appointed in the PCS and also
clarified that the Appellant’s (Ms Irwan Kour’s) appointment already
effectuated would not be affected by the appointment of Capt Gurpreet Kaur, protecting
the interests of both the parties.
More
importantly, the Court noted that the restrictive interpretation of rules and insistence
on denial of ESM status to retired personnel of the Military Nursing Service
(MNS) would demoralize the youth from joining the Defence Forces, knowing that
their future would be bleak after their eventual release from military service.
Such a practice, especially in Punjab, which contributes 7% to the military
despite making up only 2% of the population of the country, would, no doubt, be
a discouraging exercise.
THE IRONY
Though
the MNS is celebrated as a form of “nari shakti” in ceremonies and parades, the
irony in the entire episode is the uncalled-for roadblocks created for MNS
officers through the years- not because of systemic discrimination by the
government, but due to wanton prejudice based on hyper-technical interpretation
of rules and contradictory letters issued by various authorities, which the
senior hierarchy, despite its good intentions, has not been able to control or
curtail, at times even after assurances and orders issued by the highest
political executive. Even in the past, pin-pricks have been initiated which
resulted in litigation, which seemed more of personality-oriented ego battles.
One such issue was denial of salutations, precedence, star-plates corresponding
to their military rank, and ancillary respect to the military rank held by MNS
officers by other members of defence services. Despite Regulation 733(b) specifically
laying down the inter se precedence, policy letters were issued to deny
precedence and status to such officers. The regulation runs as under:
“Women
officers serving in the Army Medical Corps and officers in the Military Nursing
Service will rank equally with male officers of the same titular rank, e.g., a
captain (woman officer) in the Army Medical Corps, will rank equally with a
captain in the Artillery or Engineers.”
At
one time, the rules provided for compulsory retirement of MNS officers if they
got married. Examining this issue, the Supreme Court in Union of India Vs
Ex-Lt Selina John (Civil Appeal 1990/2019) decided on 14-02-2024, had
observed the following:
“This
rule, it is accepted, was applicable to only women nursing officers. Such rule
was ex-facie manifestly arbitrary, as terminating employment because the woman
has got married is a coarse case of gender discrimination and inequality.
Acceptance of such patriarchal rule undermines human dignity, right to
non-discrimination and fair treatment. Laws and regulations based on
gender-based bias are constitutionally impermissible. Rules making marriage of
women employees and their domestic involvement a ground for disentitlement
would be unconstitutional.”
Despite
the many hurdles in their long path to justice, MNS officers have performed
their duty with utmost dedication. In an ideal situation, it was not the MNS
officers who should have been fighting for their rights, and a serious thought
should have been rendered to resolving their genuine grievances in-house without
resort to litigation or adversarial stands in courts. Egotistical stands should
have yielded to real camaraderie.
In
the crusade against prejudice and gender discrimination, the Constitutional Courts
have repeatedly come to the rescue of women and ensured substantive equality in
the forces, but more than that, it is the duty of the defence services
themselves, and the society at large, to effectively ensure the adherence to
the avowed principles our nation stands for.
Ananya
Sharma, a law graduate, is currently working with an American company as an
in-house counsel.
Roopan Atwal is a practicing advocate at the Punjab and Haryana High Court.
