Sunday, June 15, 2014

Armed Forces Tribunal: twice bitten, not even once shy!

Judicial incorrigibility at times amazes me.

A mirror image of the case I am going to comment upon here has already been reported in these pages, when the Punjab & Haryana High Court (HC) had set aside a Court Martial wherein the Judge Advocate was of an inferior rank than the accused. Of course the HC had intervened after the Armed Forces Tribunal (AFT) failed to render justice.

The HC, in another similar case (Lt Col AC Tiwari Vs Union of India), has now issued a notice of motion to the Union of India as well as the AFT and the next date of hearing is fixed for 31st July 2014.

Colonel Tiwari had challenged the verdict of a Court Martial wherein (besides merits of the charges) one of the grounds put forth was the inferior rank of the Judge Advocate sitting on the Court Martial. The basis of challenge of course was the dicta of the Supreme Court (SC) in Major Charanjit’s (2000) case wherein it was held that inferiority of rank vitiated the Court Martial.

The AFT however, vide its judgement dated 30th January 2014, ruled that the judgement in Charanjit’s case was only applicable to Court Martial cases pending at the time of the said judgement and for the future and not to cases such as the Tiwari’s Court Martial which had already reached finality and whose sentences stood promulgated.
True it was that the SC in Charanjit’s case had clearly brought out the prospective application of its judgement. But what would constitute ‘finality’ of proceedings was further discussed very recently again by the SC in a case of 2013 (Lt Col Sunil Issar) where the SC categorically ruled that till the time the post-confirmation petition of an individual was decided, the proceedings could not be stated to have attained finality. In Sunil Issar’s case (just as in Tiwari’s case), the promulgation had been executed prior to SC’s decision in Charanjit’s case, but the post-confirmation petition had been decided after the said decision, and hence the SC opined that the principles of law laid down in Charanjit’s case would apply to Lt Col Sunil Issar thereby vitiating the entire court marital.

If we observe the AFT’s judgement closely in Lt Col AC Tiwari Vs Union of India, though the AFT has taken note of the SC’s decision in Sunil Issar’s case, they have tried to artificially distinguish the same, and have still dismissed his petition despite its being fully covered by the principles enunciated in Sunil Issar’s case.

Based on the judgements of the SC in Charanjit’s case as amplified in Sunil Issar’s case, the judgement of the AFT in Tiwari’s case has been challenged before the High Court, which has agreed to hear the same and where it is now pending.

Shall keep the readers of the blog updated on the outcome.

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