Thursday, August 29, 2019

Not Military Justice but an interesting observation by the Supreme Court of India on the scope of judicial review over War Records

The Supreme Court of India has rendered a decision stating therein that the Armed Forces Tribunal cannot go into issues that do not involve civil consequences.

The Petitioner before the Armed Forces Tribunal, a decorated Brigadier, had challenged the Annual Confidential Report (Appraisal Report) by his senior just prior to the limited Indo-Pak conflict which is also known as the Kargil War of 1999 (Operation Vijay). He had also challenged the incorrect record (as per him) being maintained in the War Reports dealing with the Kargil War which in his perception did not appreciate his battle performance properly.

The AFT had allowed the Brigadier’s plea and had quashed the said Appraisal Report and had also directed the Government to correct the “After-Action” Report.

While stating that the issue of the Appraisal Reports did involve civil consequences and hence was cognizable by the AFT, the SC in a short order on an appeal filed by the Union of India has held that the matter of correcting the war record was not amenable to the jurisdiction of the Tribunal. The following are the observations of the Apex Court on the issue:
“...We find the issue raised is more to take credit by the Officers engaged in Operation Vijay. The reports do not have any civil consequences, therefore, are not subject to judicial review by the Tribunal or the Courts. The order having civil consequences has already been set aside and not appealed by the appellants. Therefore, maintenance of records for future strategic studies is not open to challenge in exercise of power of judicial review...The Tribunal or the Court is not the authority to appreciate the historical facts as it is for the experts and Officers in the Armed Forces to record such facts in terms of the procedure established by them. Court neither has the expertise nor has the jurisdiction to sit over the reports furnished by the Officers in respect of credit to the Officers involved in Operation Vijay...”
The complete opinion of the Supreme Court can be accessed here.

1 comment:

  1. BZ to Maj. Singh for this report. The case reminds me of a U.S. civilian court decision some years ago in a case in which an Air Force pilot had sued to get his record corrected to credit him with a full kill rather than a half kill in a dogfight during either the Korean War or the Vietnam War. The court was having none of it, as I recall, and ruled that the record-correction process is not intended to write history.


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