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Friday, January 11, 2013

To ensure independence, bring AFT under justice ministry: HC

The Punjab and Haryana high court ruled on Tuesday that the Armed Forces Tribunal (AFT) be brought under the union ministry of law and justice, taking it out of the purview of the ministry of defence (MoD), to ensure independence in its functioning. The court directions came on a petition

In its ruling, thus, the HC said the administration of justice is a subject matter of the department of justice under the ministry of law and justice as per the Constitution's allocation of business. As the petition also questioned the logic of having two serving bureaucrats on the selection committee examining the suitability of serving or retired HC judges to be appointed to the AFT, the court directed that after bringing the tribunal under the law and justice ministry, suitable amendments in the selection committee could also be carried out.

The bench of chief justice AK Sikri and justice Rakesh Kumar Jain said that in India, "unfortunately tribunals have not achieved full independence". "The secretary of the concerned 'sponsoring department' sits in the selection committee for appointment. When the tribunals are formed, they are mostly dependant on their sponsoring department for funding, infrastructure and even space for functioning. The statutes constituting tribunals routinely provide for members of civil services from the sponsoring departments becoming members of the tribunal and continuing their lien with their parent cadre," the bench added. "Unless wide-ranging reforms as were implemented in United Kingdom and as were suggested by Chandra Kumar (a Supreme Court judgment) are brought about, tribunals in India will not be considered as independent."

The court also directed that all vacancies of judicial members' posts in the Chandigarh bench of AFT be filled up in the near future.

(Source-Hindustan Times)

Law Ministry to control AFT: High Court

Chandigarh, January 8
The Punjab and Haryana High Court today ordered that the Armed Forces Tribunal (AFT) be shifted from the administrative control of the Ministry of Defence to the Ministry of Law. Taking stock of the legal position and earlier directions by the Supreme Court, a Division Bench comprising Chief Justice AK Sikri and Justice RK Jain ruled: “Insofar as the Armed Forces Tribunal is concerned, there is hardly any issue that it be brought under the control of Department of Justice in the Ministry of Law and Justice. Mechanism for control over the Armed Forces Tribunal can be worked out by the Department of Justice. Accordingly, we issue a direction to this effect.”

Stating that the AFT Act does not specify as to which ministry should wield control over it, the Bench observed that tribunals in India have not achieved full independence. “The apex court has observed that unless a wholly independent agency of all such tribunals is set up, it is desirable that all such tribunals, as far as possible, be under a single nodal ministry, which will be in a position to oversee the working of these tribunals. For a number of reasons that ministry should appropriately be the Ministry of Law,” the Bench said.


 The judgment, according to legal experts, would go a long way in establishing the independence of judicial functioning through separation of the Judiciary from the Executive. At present, the AFT functions under the MoD, which is a respondent in all cases filed before the tribunal. A public interest litigation filed by Navdeep Singh, a local lawyer, had pointed out that the Supreme Court had already held that tribunals could not be made dependent on the sponsoring or parent ministries and to ensure their independence they could only be supervised by the Law Ministry. The petition had contended that all orders by the AFT were to be passed against the MoD and the same ministry had been made the parent controlling ministry of the tribunal, wielding all pervasive control over the AFT, including appointments, funding, rule-making and infrastructure, thereby making it seem more of an extension of the state rather than an independent judicial body. The petition also pointed out that non-appointment of judicial members after their retirement had resulted in absolute absence of judicial remedy to serving and retired personnel at some places. The Chandigarh Bench, having the largest jurisdiction of five states was also partially functional with only one judicial member appointed out of three. The petition had sought provisioning of proper infrastructure, accommodation and courtesy to the institution of AFT and its members.

Big change

  • Currently, the AFT functions under the MoD, which is a respondent in all cases filed before the tribunal.
  • The judgment, according to legal experts, would go a long way in establishing the independence of judicial functioning through separation of the Judiciary from the Executive.
  • A PIL filed by Navdeep Singh, a lawyer, had pointed out that the SC had already held that tribunals could not be made dependent on the sponsoring or parent ministries and to ensure their independence they could only be supervised by the Law Ministry
  • (Source-The Tribune) 

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