The Union government has changed the rules governing appointment in the Armed Forces Tribunal (AFT), giving more powers to the Defence Secretary who would now have a role in ordering inquiries against members of the tribunal and their removal. Contravening a Constitutional Bench judgement of the Supreme Court which directed the placement of tribunals under the Law Ministry, the new rules reiterate that the AFT will function under the Ministry of Defence which, incidentally, is the ministry against which all orders of the AFT are to be passed.
The rules also reiterate the role of the Defence Secretary in selecting the Members of the tribunal and even consultation with the Chief Justice of India (CJI) has been abrogated. The Defence Secretary and other bureaucrats would now have a role in ordering inquiries against members of the tribunal and their removal, which could only be undertaken by a Supreme Court judge till now.
The facilities and benefits of retired High Court Judges appointed as Judicial Members have been downgraded to regular Group A (Class I) officers of the Central Government. While the SC had directed a longer tenure for tribunal members without a provision for re-appointment to ensure independence, the new rules have decreased even the existing tenure to 3 years and have provided for re-appointment by a selection committee, of which the Defence Secretary is a member. This, despite the fact that the Defence Secretary is the first respondent party in all litigation in AFT.
While the existing provisions barred the post-retirement employment of members with the government, the new rules specifically allow such employment. Under the new rules, any advocate with 10 years of practice can be appointed as the AFT Chairperson while the lower appointment of Judicial Member can only be held by a High Court Judge.
Chairman of All Indian Ex-servicemen Welfare Association and a practising advocate at AFT’s Chandigarh bench, Bhimsen Sehgal, said that the amendment to rules was wrong and it will degrade the status of the appointees. “Nobody will come forward to become a member of the AFT in view of such rules. Further, the AFT should come under the ambit of the Minstry of Law and not Ministry of Defence. It cannot function independently as all infrastructure is provided by MoD,” he said.
Sources say that the government had notified the rules even when the Punjab and Haryana High Court had directed the central government in 2012 to place the AFT under the Law Ministry and also to recast the selection committee. When the UPA Government had approached the SC with a Special Leave Petition, the apex court had refused to stay the judgement and had only agreed to stay the contempt proceedings in the HC.