New rules in India may affect independence and quality of Armed Forces Tribunal

The Government of India recently issued The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. These rules affect a variety of tribunals, including the Armed Forces Tribunal, which has appellate review power over courts-martial and other military personnel matters. Global Military Justice Reform contributor Wing Cdr. (ret) UC Jha has written this analysis for DNA India:

On June 1, 2017, the Ministry of Finance notified The Tribunal, Appellate Tribunal, Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 in the Gazette of India. The Rules, effective from June 1, have amended 19 existing laws, including the Armed Forces Tribunal (AFT) Act, giving wide-ranging powers to the government pertaining to the appointment and removal of members to various tribunals. In the past, the government used to appoint departmental Standing Committees and invite comments from the public before notifying such rules into the law. For instance, AFT Bills of 2005 and 2012 were examined by the Parliamentary Standing Committee on Defence. 

Chairperson and members 

In contrast to earlier provisions in the AFT Act, where only a retired judge of the Supreme Court or a retired chief justice of a High Court could be appointed as Chairperson, now a serving judge or any person “who is qualified to be a judge of Supreme Court” could be appointed as the Chairperson of the Tribunal. There is no change in the qualification of a judicial member and a serving or retired judge of a High Court could be appointed as such. 

As far as the AFT’s administrative members are concerned, so far the appointment was confined to retired major generals or equivalent ranks in two other services and retired advocate generals. The Rules of 2017 now provide that any 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” could be appointed. The amended law does not require a member to have any expertise in law or military ethos. This dilution of membership of an important appellate tribunal appears unjustified. 

Search-cum-Selection Committee 

Under the Rules of 2017, the chairperson of the AFT shall be appointed by the central government in consultation with the Chief Justice of India. Earlier, the Chairperson and other members (judicial and administrative) of the AFT could be appointed only by the President, after consultation with the Chief Justice of India. The posts of Vice-Chairperson and judicial and administrative members of the Tribunal will now be filled by a “Search-cum-Selection Committee” which shall consist of the Chairman and three members. The four-member Search-cum-Selection Committee will consist of one Supreme Court judge (nominated by the Chief Justice of India), Chairperson of the AFT (appointed by the government), the Defence Secretary and another executive; thus giving a majority say to the government in selection of members for the AFT. In addition, the criteria for the removal of members have been diluted and the Ministry of Defence will have the power to constitute a committee to recommend removal of a member. 

The Supreme Court has earlier made it clear that the selection committee for appointments to tribunals should be balanced with members from the judiciary and the executive, rather than loaded in favour of the latter. A Constitution Bench of the SC, in the case of Madras Bar Association v. Union of India (2010), had struck down provisions related to the National Company Law Tribunal because the five-member selection committee had only one member from the judiciary while the rest were from the executive. The Rules of 2017 have amended laws to open the doors for the government to usurp powers pertaining to the appointment and removal of members of the AFT. The amendments introduced by the Rules of 2017 appear unconstitutional. 

The armed forces have an independent legal system. By virtue of section 152 of the Army Act, trial by a court martial is a judicial proceeding and court martial is a court within the meaning of Criminal Procedure Code. The power of judicial review over the military legal system must be exercised by independent, impartial and qualified persons, maintaining the standards of a High Court.

Passing over the strange -- to American eyes -- procedure under which the executive branch may amend legislation, it does appear that the 2017 Rules have the effect of eroding the quality and independence of the AFT bench. Of course there are fundamental questions surrounding the AFT more generally, such as why non lawyers, whatever their other credentials, should be voting members in the first place of what is, after all, a court of law. Issuance of the 2017 Rules without prior opportunity for public comment also seems a bad business, and Wing Cdr. Jha is quite right to point it out. Readers in India are invited to comment on the constitutionality of the new rules. Will Madras Bar doom them, as he predicts? (Please comment under your real name.)