August 3, 1998

Aggrieved armed forces personnel head for civil courts.

By Manoj Joshi

India's democratic Constitution promises the right to life, liberty and pursuit of happiness to all but one class of people -- the armed forces. The men in uniform do not resent this provision, conscious as they are of the special need for discipline in their line of work. But in the past few years, there has been an increasing number of officers who say the internal checks against arbitrary actions of superiors are not working. So, they are seeking redressal from the civil courts in the country. In the past week, various benches of the Delhi High Court have been grappling with two major cases -- those of Lt-General Rajendra Singh Kadyan and Air Vice-Marshal P.K. Ghosh.

Senior advocate R.K. Anand, who has won many high-profile cases and is also handling the Kadyan brief, says that "injustice" is a very serious problem in the armed forces, and is the reason why many senior officers are landing up in courts now is "political interference" in promotions. This process peaked during Mulayam Singh Yadav's term as defence minister in the United Front government. Last November, the high court termed the decision of the Ministry of Defence (MOD) to appoint Lt-General B.C. Kochar as the director general of medical services (army) as being taken "under a false pretext". It also quashed the appointment as "wrong, illegal and arbitrary".

The roots of the Kadyan case lie in another cause celebre of the period. In late 1997, the MOD's machinations to promote Major-General B.S. Malik as lieutenant-general delayed Kadyan's promotion by four months. In March this year, Kadyan, who was found fit to head India's crack 1 Corps headquartered in Mathura, was told he was four months short of the required one-year tenure as a corps commander to be considered as chief of the Eastern Command. The case will be heard this week.

Army officials say they have an elaborate internal procedure to deal with grievances. But the system seems unable to cope with what the MOD does in the name of civilian supremacy over the military. The simplest is a petition to the respective service chief. More elaborate is a provision for redressal under Section 27 of the Army Act. A complaint is sent up the hierarchy to the civilian joint secretary (army). After examining the pros and cons, he marks it up to the defence secretary who in turn sends it to the minister for a final decision. On the average 1,700 such complaints are handled each year for the army alone.

The Ghosh case, which will now be heard in September, shows the level to which the MOD officials will stoop to thwart justice and explains why officers are being compelled to take recourse to the law courts. In this case, the air force promotion board selected Ghosh to become air marshal (maintenance), an essential criterion for the post being that the officer belonged to the aeronautical engineering branch. The mod, falsely claiming it was doing so on the basis of a high court order, instead promoted Air Vice-Marshal S. Raghavan, a logistics branch officer, by the curious device of upgrading his post and then claiming there were no more vacancies left to accommodate Ghosh. This tale of deceiving the Appointment Committee of the Cabinet (ACC) and defying the high court are detailed in a June 1 order, in which the division bench had dismissed an appeal by the MOD against the March 23 judgement of Justice K. Ramamoorthy ordering Ghosh's promotion. The most disturbing lesson from this case,according to senior advocate S.S. Jauhar who is handling the case, is the manner in which the ACC has abdicated its responsibilities.

Most advocates like L.K. Bhushan maintain that by and large, "courts are not inclined to interfere in matters of promotions unless there is a clear case of wrongdoing or bias". But the Ghosh and Kadyan cases indicate the situation has deteriorated beyond a matter of simple error or bias. Political mismanagement of the Defence Ministry has allowed the bureaucracy to blatantly manipulate the armed forces. In such circumstances, the courts are, as they should be, the last resort for justice.

© Living Media India Ltd