Ajai Shukla: The judiciary and the military

BROADSWORD

Samuel Huntington, the American political philosopher famous for his provocative "Clash of Civilizations" thesis, initially shot to fame with his 1957 study of civil-military relations, "The Soldier and the State". In that seminal work, Huntington concluded that "objective civilian control" over the armed forces keeps the military out of politics, by granting it a sphere of "autonomous military professionalism". Granting the military control over its own realm, reasoned Huntington, motivates it to excel professionally as well as to stay out of the political space where civilian institutions hold sway.

Since independence, India's civilian hierarchies have adhered to the Huntingtonian philosophy, stabilising the country as a stable democracy. Both sides justifiably claim credit. The military, while earning respect for its professionalism, has nurtured an apolitical ethos, even through provocations like the 1975-77 Emergency and the BJP's attempt to identify itself with the army in its electoral campaign after the 1999 Kargil victory. The civilian institutions, on their part, have provided reasonable political leadership, avoided politicising military promotions and selections, and granted the armed forces functional autonomy within the military sphere.

This unwritten separation is being increasingly tested, most recently by a Delhi High Court order of March 19, 2007, which is a potentially troublesome judicial intrusion into the structure of the military hierarchy. Ruling on a writ petition filed by a serving army officer, Brigadier S B Chail, a two-judge bench has directed the army to consider his request for creating a major general's vacancy for him. The court has ordered the Defence Secretary to personally meet the brigadier to understand his point of view. And, for the first time, the court has guarded against the military's proclivity to kill such petitions by stonewalling them until the petitioner retires, after which a case against supersession becomes invalid. Aware that Brigadier Chail was retiring on March 31, the Delhi High Court directed the army to consider his request to continue to remain in uniform beyond March 31 on the "supernumerary strength" of the army.

In this order the courts have crossed a Rubicon, intervening decisively on a matter relating directly to personnel management within the armed forces, and the structure of the officer cadre. Furthermore, by effectively placing Brigadier Chail on the army's supernumerary strength, the courts have added teeth to their award. The mechanism of "supernumerary strength" allows an officer to continue in service beyond his retirement date by creating a special vacancy for him, over and above the vacancies already sanctioned by the government for the armed forces.

It is hard to believe that the Delhi High Court has jolted a finely balanced civil-military relationship without serious thought. The fact is that Brigadier Chail's petition had merit that was difficult to overlook. As the Principal Records Officer of the Indian Army, he headed an independent organisation of over 500 officers, who ran 51 Records Offices that handled the policies and records related to the postings, promotions, pensions and salary entitlements of over 1.3 million soldiers. The Records Offices handle as much responsibility, a greater workload, and have far more officers than several other army departments headed by major generals (such as the Corps of Military Police, the Army Education Corps and, ironically, the Judge Advocate General's Branch). The courts concluded that there was a prima facie case for the Records Offices to be headed by a major general. As the senior-most serving officer in the Records Office, Brigadier Chail would be entitled to that promotion.

The Delhi High Court faced a Hobson's choice between respecting, on the one hand, the traditional hands-off policy towards military hierarchies and, on the other, issuing a decision because it believes the present structure is patently unjust. Putting off a decision, the court lobbed the ball back into the MoD's court, giving it the opportunity to solve the issue internally. But MoD inflexibility has not helped. Having heard Brigadier Chail, as directed by the court, the Defence Secretary has decided that the MoD will continue to oppose his promotion before the Delhi High Court. The court, therefore, might be left with no option but to direct a change in the army's internal hierarchy, an interventionist judgment by Huntington's standards.

None of this is necessary. The Delhi High Court is deciding this case only because of parliament's delay in passing the Armed Forces Tribunal Act, which was placed before it in 2005, for setting up a specialised quasi-military higher court to review cases relating to the military. The Armed Forces Tribunal Bill, 2005, will create an appellate mechanism, manned by retired heads of the MoD's Judge Advocate General's Branch and retired judges from the higher judiciary. This body will take over the 8,500 military cases pending before the higher judiciary, allowing judges sensitised to military matters to rule on sensitive issues like court martial reviews, promotions, supersession and the military hierarchy. And since the Armed Forces Tribunals will be viewed within the armed forces as much military judicial bodies, civil-military separation will be reinforced.

For now, though, the Armed Forces Tribunal remains just a proposal. Parliament's Standing Committee on Defence has sent the draft Bill back to the MoD for clarifications and review. While the debate over "judicial activism" and "judicial intervention" raises dust and hackles, a mechanism to create an efficient and non-confrontationist judicial alternative gathers dust.

ajaishukla.blogspot.com