The Supreme Court interrupted the governments script in the legal battle against Army Chief General V K Singh,asking the Ministry of Defence to consider withdrawal of its December 30,2011 order fixing the Generals date of birth as May 10,1950 and save itself from the possible embarrassment of having the court quash the executive command.
In a charged hearing today,a bench of Justice R M Lodha and Justice H L Gokhale declared that the very route the government took to arrive at the December order would not even prima facie satisfy principles of natural justice and that the decision-making process was vitiated.
The court asked why the ministry had twice consulted the Attorney General once,before passing the July 21 and 22 orders,originally fixing the year of birth of Singh as 1950,and then again before the December 30 order on the basis of Singhs statutory complaint.
Justice Lodha said it was a fundamental flaw on the part of the defence ministry to seek legal opinion on the statutory complaint from the very authority (Attorney General) who had given a committed opinion on an earlier occasion that Singh was born in 1950.
Attorney General GE Vahanvati,flanked by Solicitor General Rohinton Nariman,was representing the defence ministry.
Addressing Vahanvati,Justice Lodha said: You have given an opinion. Orders (July 21/22) is passed on that. Then a statutory complaint is filed (by the Chief). Again you give an opinion,based on which the ministry issues the December 30 order. I find this whole decision-making process legally unsustainable and ultra vires.
To this,Vahanvati said: I gave the opinions completely on merits. Day in and day out this is done.
If the matter had ended with the first opinion,there would have been no problem. But the ministry comes back to you on a statutory complaint that is filed against the very order passed in consultation with you… and you,the authority who had already expressed a committed opinion on the issue. In a writ petition filed under Article 32,this assumes great importance, Justice Lodha pointed out.
But the AG said the reference to him for a legal opinion can hardly be termed consultation.
So you are saying that legal opinions given are just material placed before the Raksha Mantri,who analyses it and takes an independent decision? Justice Gokhale intervened.
Vahanvati replied in the affirmative: Yes,The order passed is entirely by the Raksha Mantri. Everything is independently examined. Justice Lodha intervened at this point to ask: But your opinion as highest law officer would have definitely been taken into consideration.
It is the duty of the Attorney General to give legal advice. Your Lordships remark is off-mark. So the defence ministry goes to AG,what else can they do… If courts start saying that you should not have given that opinion or this opinion…Why he (Singh) is referring to the opinions of four former CJIs on every occasion, Vahanvati said.
But Justice Lodha stood firm that the procedure followed was indeed flawed and declared that I am of the prima facie view that materials placed on record will not stand the test of the principles of natural justice.
Then it is perfectly all right if Your Lordships think that Raksha Mantri should have taken an independent decision,but the setting aside of the order (December 30) should not lead to him (Singh) getting a declaration that he was born in 1951, Vahanvati responded to the judges statement before seeking time to get instructions on whether the government should withdraw the December 30 order
Then addressing senior advocate U U Lalit,who appears for Singh,the court charted the future course for the General in case the government decides to withdraw the December order. Noting that if the withdrawal happens,the court said that the entire case of the General boils down to the legality of the earlier July 21/22 orders.
Disagreeing with the governments contention that the Supreme Court should leave it to the Armed Forces Tribunal,the court said the Tribunal is manned by army men, and Singhs case would be probably end up being tried by someone who was his junior or former boss.
The whole thing of July 21/22 orders giving the date of birth as 1951 has to be examined by a judicial forum. Besides,he has hardly four months left,remedy before the Tribunal may not be efficacious. So let him be here, the Bench said,posting the next hearing for February 10.