FORCES LAW GAZETTE

(Dec 2011) ISSUE 1 Available for free download and distribution from www . lawgazette . net Published quarterly by Major Navdeep Singh, Advocate, Punjab & Haryana High Court, for free online distribution and non-commercial usage. Informal and meant more for general reading than use in Courts, this Gazette reflects pro bono public service and is a tribute to the men & women (serving & former) in uniform around the world, irrespective of service or nationality. Queries for information more than what is published, or for full text of judgements, would not be entertained please. Honorary Editorial Board : Maj Navdeep Singh Advocate, Chetan Gupta Advocate Contributors : Michelle Lindo McCluer Former Judge Advocate US Air Force & Former Executive Director National Institute of Military Justice, Capt Sandeep Bansal Advocate, Col MS Jaswal (Retd) Advocate, Maj Gen Raj Mehta (Retd)
Introduction : Being published towards the end of 2011 and being the first volume, this issue of the FLG would cover the entire 2011 and also some important developments of 2009 and 2010. Subsequent issues of the Gazette would be published at the frequency of three months and would continue to remain available for free download and distribution in pdf format. The FLG would consist of three broad sections : (1) Law Related to Uniformed Services, (2) Developments and Miscellaneous, and (3) Contributions & Articles. The disclaimer with other important information is provided on the last page. The Contributions & Articles section would not be limited to the uniformed services and could include write-ups on other legal or topical administrative issues as well. I would be failing in my duty if I do not express my thanks to the contributors of material to the debut issue. I would also like to whole heartedly thank Mr Eugene R Fidell, co-founder and former President of the National Institute of Military Justice (US), for inspiration, ideas and inputs. Will not waste further space for ceremonial talk and we hope to continue providing you material in this arena which we feel would be worthwhile for a whole array of readers.

LAW RELATED SERVICES: Pension:

TO

UNIFORMED

Petitioner suffered injury in operations and declared battle casualty. Discharged as inefficient soldier with endorsement services no longer required on account of red ink and black ink entries. Denied
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disability pension on the pretext of Army HQrs policy stating that disability pension would not be given to such cases and to cases of voluntary discharge. Held that person given disability pension for attributable / aggravated disabilities persons who acquire disability to be given disability pension and that is the spirit of law. Differentiation suggested by UOI held to be unreasonable, injudicious, arbitrary
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and illogical. Claim for disability pension is de hors the administrative discharge. Petition allowed (Jaggar Singh Vs UOI, Punjab & Haryana HC, 11th May 2009) Question whether findings of medical board can be ignored ?, Held - Medical Board is an expert body, findings must be given due weight and credence personal and family history of Respondent revealed that he was forced to leave education and join army. Possibility of disability due to family stress and pressure not ruled out. Respondent did not assail the opinion or validity of medical board and on the contrary, Respondent placed reliance on medical board. Respondent held not entitled to disability pension (Secretary, MoD Vs Damodaran AV, Supreme Court, 20th Aug 2009) Question examined whether a person is entitled to disability pension on seeking voluntary retirement. Whether counter affidavit required in cases involving settled legal position ? Held : Yes Respondents acting against settled legal position. Petitioners being compelled to approach Courts, there was unnecessary resistance to writ petition and counter affidavit not required. No basis for Respondents attitude in forcing individuals to resort to litigation once position is settled. Attitude almost contemptuous apart from unnecessarily burdening dockets of Courts. Costs allowed to Petitioner @ Rs 25,000 to be recovered from officer who took stand inconsistent with settled legal position (Singheswar Singh Vs UOI, Delhi HC, 28th Aug 2009) Whether there could be any distinction made between a widow of a person, who died by reason attributable to or aggravated by military service (Special Family Pension) and a person who had died just in service (Ordinary Family Pension), since the problem faced by both the widows are identical ? Held that wife who lives a common life and continues to support the
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other living eligible heirs, the entitlement to claim family pension could not be denied - various judgements discussed claim of the petitioner upheld and to be given the benefit of the family pension as provided under the Family Pension Scheme, 1964 (Tej Kaur Vs UOI, Punjab & Haryana HC, 21st Dec 2009) Normally Court does not interfere with declaration of medical board, however Court can see whether medical board conformed to rules and regulations or not. Case law of SC and HCs discussed. IHD mentioned in rules as a disease which is affected by stress and strain of service. Opinion of medical board is not in conformity of rules and regulations SC cases distinguished. Petitioner held entitled to disability pension with 12% interest. Costs of Rs 5000 awarded. Petition Allowed. (Waryam Chand Vs UOI, Chandigarh AFT, 01st Jan 2010) Disability pension is to be calculated based on the rank held on retirement / discharge and not on the basis of the lower rank held on the date of injury / disease. Pension Regulation 180 discussed. Petition allowed with interest (AR Chandran KR Vs UOI, Chandigarh AFT, 02nd Feb 2010) Husband of Petitioner who was in low medical category with neither attributable / nor aggravated disability, was released after more than 10 years of service so as to enable him to earn invalid pension. Later it was discovered that Respondents had counted service incorrectly and he fell short of 10 years for earning invalid pension. Later he died. Held that husband of Petitioner entitled to invalid pension and Petitioner entitled to ordinary family pension from date of death since she could not be penalised for any mistake or error in calculation on the part of the Respondents (Krishna Devi Vs UOI, Chandigarh AFT, 03rd Mar 2010)

Point determined whether family of a missing soldier is entitled to family pension ? Held, Yes, husband of the Petitioner missing till date. Various government circulars discussed. Petitioner held entitled to family pension from 1992 with 6% interest. Application allowed (Parvati Devi Vs UOI, Jaipur AFT, 10th Nov 2009, also held by the same Bench in Munni Devi Vs UOI and by the Chennai AFT in Sarbjeet Kaur Vs UOI 04th Mar 2010)

granted from 1971 with 6% interest. Application allowed (Kishore Singh Vs UOI, Jaipur AFT, 04th May 2010) Point determined that if there is conflict between two medical boards on attributability or aggravation then which board is to prevail ? It was held that when there are contrary opinions expressed by two bodies of experts then beneficial opinion prevails. Application allowed. Disability pension granted from date of discharge in 1998 (Lachhman Singh Vs UOI, Jaipur AFT, 07th May 2010) Whether family of a person who dies during desertion is entitled to family pension when a person died before dismissal from service in 1987 when actually the dismissal (after 10 years of desertion) was to be actually effectuated under the rules in 1984 which was delayed by the authorities ? It was held that the soldier deserted in 1974 and order of dismissal passed on 02-05-1987, hence soldier died before dismissal on 10-04-1987. Desertion before dismissal did not lead to cessation of service. Late mother of Petitioner held entitled to family pension from date of death of the soldier with 12 % interest (G Yesupadam Vs Madras Engineer Group, Chennai AFT, 18th Jun 2010) Disability pension formula for pre-2006 retirees should be same as post-2006 retirees. Cut-off date of 01 Jan 2006 struck down. Case law discussed and distinguished (PK Kapur Vs UOI, Principal Bench AFT, 30th Jun 2010) Bilateral Hearing Loss incurred due to mortar firing on Line of Control. Claim for war injury pension rejected on the ground that there was no documentary proof. Held that there were enough documents to show the incident and in fact the unit had internally accepted the disability to be a battle casualty. Petitioner to be granted disability pension and to be treated as
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Congenital diseases, though not defects, may be service connected, if they are aggravated by service. Defects are stationary in nature, while diseases may progress or improve. Remanded for determination whether appellant had a disease or defect and consequent finding as to aggravation. Unless there is clear and unmistakable evidence to the contrary, it must be presumed that a person enters service in sound shape except or defects, injuries or diseases expressly noted or where it shown that his condition existed before service and was not aggravated by service. (Regis M Quirin Vs Erin K Shinseki, US Court of Appeals for Veterans Claims, 10th Mar 2010) Person in low medical category at the time of release is to be treated as invalided out of service for the purposes of disability pension. Granting disability pension to post2006 voluntary retirees but refusing the same to pre-2006 retirees is not proper (A Shihabudeen Vs PCDA, Kochi AFT, 22nd Mar 2010) During medical board a statement was given by Applicant that injury on eye was suffered while firing blank ammunition in military exercise. This was supported by opinion of Commanding Officer. Delay of no consequence since Applicant had been regularly agitating claim. Disability pension
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invalided out (Paramjit Singh Vs UOI, Chandigarh AFT, 13th Jul 2010) Second family pension in this case is from a trust fund and not from a government source. Similar case allowed by High Court and affirmed by Supreme Court. Petitioner entitled to family pension from army as well as from bank. Petition allowed (Radhamony Amma Vs UOI, Kochi AFT, 28th Jul 2010) Ordinary family pension made admissible on re-marriage for post-2006 cases only, pre2006 cases remarried widows not made eligible for continuance of pension on remarriage. No such cut-off date prescribed for Special Family Pension. Cut-off date held to be artificial and struck down. Held that such conditions should not be imposed for policies related to emancipation of women (Saroj Devi Vs UOI, Principal Bench AFT, 04th Aug 2010) Court examined whether a handicapped child is entitled to ordinary family pension from the Army after the death of his parents and after attaining majority even if he is married. It was concluded that such a right cannot be taken away by the Govt administratively through a circular since it had been allowed by a Presidential sanction (Vinod Kumar Vs UOI, Chandigarh AFT, 01st Oct 2010) It is an admitted fact that the disability of the appellant was assessed as more than 20%. Moreover, it is not the case of the respondents that the appellant/plaintiff received injury as a result of his negligence. The accident took place under the circumstances which were not under his control. Therefore, in our view, the injury inflicted as a result of accident should be deemed to be attributable to military service. Apart from it, the injury was sustained by
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the appellant in the year 1969, whereas he was discharged in Low Medical Category after 10 years of the accident for the same disability. Under the circumstances, it is also deemed to be aggravated as a result of military service (Kartar Singh Vs UOI, Chandigarh AFT, 01st Oct 2010) Medical board opinion vague regarding schizophrenia. Entitlement Rules 18 to 20 discussed. Delhi High Court judgement relied upon in which held that unless there is family history of an illness normally it is assumed as attributable / aggravated. Delhi HC judgement affirmed by Supreme Court in absence of justified reasons by Medical Board the disability to be taken as attributable / aggravated by military service. Petition allowed (Krishna Singh Vs UOI, Principal Bench AFT, 01st Oct 2010) Condonation for grant of service pension for second spell of service in DSC refused on the basis of an Army HQ letter issued by Adjutant General in 1962 which provides condonation not to be given for second spell. Held that Adjutant General is persona non grata and not competent to alter Pension Regulations which contain no stipulation disallowing condonation for second spell. Rejection quashed. Orders issued to condone the shortfall (Shamsher Singh Vs UOI, Chandigarh AFT, 11th Nov 2010) No reason given whatsoever by medical board for reaching conclusion as to why disability not connected with service. Disability assessed at 15-19% - admitted by respondents that now even in cases where disability is assessed at 1% disability pension is admissible. Petition allowed (Uday Kumar Vs UOI, Kochi AFT 07th Dec 2010) Petitioner, a short service commissioned officer with previous service in ranks not granted pension on the pretext that he was 5
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days short of qualifying service. His terminal leave period not counted as qualifying service. Held that all kinds of leave are to be counted as qualifying service for pension in accordance with Regulation 26 of Air Force Pension Regulations. Also with effect from 1983, service of 3 months or more is to be treated as 6 months for purposes of qualifying service. Petition allowed (NS Kadian Vs UOI, Chandigarh AFT, 11th Dec 2010) Is a soldier entitled to disability pension in case he suffers injury while on annual leave. Conflicting Judgements : Held No (Jagtar Singh Vs UOI, Chandigarh Bench, 02nd Nov 2010), Held Yes (Raj Pal Vs UOI, Chandigarh AFT, 15th Dec 2010) Petitioner approached the Court after 33 years but documents destroyed earlier than due by Respondents. Disability of Pleuri syc effusion can safely be concluded as related to military service since it is listed in list of diseases affected by service in the entitlement rules. Since no proof of disability percentage is available, Petitioner entitled to service element with effect from 1971 with 6% interest (Rafiq Ahmed Vs UOI, Jaipur AFT, 03rd Jan 2011) Board must provide statement of reasons or basis of its conclusion related to disability (Frank E Buczynski Vs Eric K Shinseki, Secretary Veteran Affairs, US Court of Appeals for Veteran Claims, 06th Jan 2011) Special Family Pension policy only provides continuance to remarried widows in cases occurring after 01-01-1996. Cut-off date of 01-01-1996 held discriminatory (Shanti Devi Vs UOI, Jaipur AFT, 13th Jan 2011) Injury while handling a weapon is definitely attributable to military service. Single Bench rightly granted disability pension. Appeal (LPA) dismissed (UOI Vs Kuldeep Singh, Punjab & Haryana HC, 21st Jan 2011)
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Petitioner faced a parade of administrative miseries. Disability compensation benefits granted from a back date. Red-tapism discussed and Petitioner allowed costs and fee of $11,715.49 (Cleveland D Harvey Vs Eric K Shinseki, US Court of Appeals for Veteran Claims, 25th Jan 2011) Medical Board must provide proper reasons for rejecting claim of attributability to service or aggravation by service. Otherwise presumption shall be in favour of the claimant. Declaration of disability neither attributable, nor aggravated by service by the Medical Board rejected. Supreme Court decisions distinguished. Disability Pension allowed (Idrish Khan Vs UOI, Jaipur AFT, 03rd Feb 2011) Officer died while on duty during admission period in Military Hospital due to sudden cardiac arrest. Death is attributable to service, hence Special Family Pension directed to be released (Shamim Begum Vs UOI, Jaipur AFT, 03rd Feb 2011) Is gratuity or pension forfeited in the event of retirement of a Commissioned Officer ? Held, No. Gratuity or pension as admissible to be released to an officer who has resigned his commission (Salil Singh, Chandigarh AFT, 08th Feb 2011) Soldier electrocuted while on duty. Family entitled to ex-gratia compensation of Rs Ten Lacs as per existing policy (M Parvathi Vs UOI, Chennai AFT, 24th March 2011) Disabled personnel who superannuate or are released on completion of terms of engagement are also entitled to broadbanding / rounding-off of disability or war injury element (Vijay Oberoi Vs UOI, Chandigarh AFT, 04th Aug 2010 and KJS Buttar Vs UOI, Supreme Court, 31st Mar 2011, UOI Vs Paramjit Singh, Supreme Court, 04th Apr 2011)
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Rounding off / Broad-banding of disability element of disability pension. Policy introduced for post-1996 retirees with effect from 01 Jan 1996 but extended to pre-1996 retirees with effect from 01 July 2009. Cutoff date and various qualifications prescribed for post-1996 retirees set-aside. Case law discussed (Balbir Singh Vs UOI, Chandigarh AFT, 31st Mar 2011) Can disability pension be denied to commissioned officers who retire voluntarily after completing pensionable terms of engagement ? Held that disability pension cannot be denied to voluntary retirees of the commissioned officer category, especially those commissioned officers who have sought retirement after completing pensionable terms. Judgment of the Supreme Court in UOI Vs Ajay Wahi distinguished (SS Ahluwalia Vs UOI, Chandigarh AFT, 20th Dec 2010 and AC Prem Vs UOI, Chandigarh AFT, 31st Mar 2011) Husband served in operational areas despite being diagnosed with cancer. Later invalided from the Army while in a delicate state from the Military Hospital directly and died 9 days later. Widow held entitled to Special Family Pension since the disease is to be deemed as attributable / aggravated since it fulfils such conditions in light of the Guide to Medical Officers Military Pensions (Nirmala Devi Vs UOI, Chandigarh AFT, 13th Apr 2011) Unchecked competence of (US) Department of Veterans Administration has gone long unchecked. Veterans should not be compelled to perish while govt fails to perform obligations. Suicides amongst veterans higher than general public. Veterans suffering and dying heedlessly and needlessly. Held that Constitution confers just and timely adjudication of disability claims (Veterans for Common Sense Vs
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Department of Veterans Administration, US Court of Appeals, 11th May 2011) Appeal Medical Board has no jurisdiction to go into attributability or aggravation once the Release Medical Board has declared a disability as attributable or aggravated (Bali Ram Vs UOI, Chandigarh AFT, 27th Jul 2011) AFT restricted arrears of Special Family Pension to a widow to 3 years preceding filing of Petition. No proof that rejection order by appellate authority was ever served upon her in 2000. Widow pursuing her claim within her limited means. Restriction of arrears held not proper. Arrears to be released within 12 weeks (Kamla Devi Vs UOI, Delhi HC, 02nd Sep 2011) Soldier died due to illness in a notified operational area in Siachen (OP Meghdoot). Family is entitled to liberalised family pension in terms of Category E of Govt of India letter dated 31st Jan 2001. Also entitled to ex-gratia payment (Hellan Sagayamony Vs UOI, Chennai AFT, 05th Sep 2011) Diabetes declared neither attributable nor aggravated by service by medical board. Held to be improper and direction issued to grant disability pension. Late husband of the claimant was in the Navy and in absence of reasoning by the board and presumption being in favour of the late sailor, he was to be given the benefit of attributability. Rules and medical guidelines discussed (Subhash Chand Vs UOI, Principal Bench AFT, 21st Sep 2011) Petitioner who was serving in the Air Force invalided out on account of schizophrenia which was declared not connected with service by authorities on the ground that the disability was incurred in Naliya (Gujarat) which was a peace station. Held that Naliya has been declared modified field area and the fact is also recorded in the medical
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board. Rules discussed, Petition allowed and Petitioner held entitled to disability pension (JP Yadav Vs UOI, Chandigarh AFT, 30th Sep 2011) Grant of pension of Regular Naib Subedars to Honorary Naib Subedars cut off date of admissibility only to post-2006 retirees held to be discriminatory in Virender Singh Vs UOI by Chandigarh AFT. SLP dismissed. However in another similar case, while dismissing UOIs SLP, it was observed by the SC that the benefits shall be admissible to those Havildars who were granted rank of Honorary Naib Subedar prior to retirement. Held that the Honorary rank of Naib Subedar is only granted after retirement according to regulations and hence the observation of the SC without referring to regulations was not a binding precedent. Moreover, SC had affirmed orders of Chandigarh AFT in all SLPs. Case law discussed (Bhagwan Singh Vs UOI, Chandigarh AFT, 18th Oct 2011)

set aside, Petitioner directed to be considered afresh for the rank of full Colonel (SD Pokhriyal Vs UOI, Chandigarh AFT, 12th Jul 2010) Permanent Aviation corps cadre formed. No other Major General could have been brought in to the post of ADG Aviation which was to be legally manned by an officer of the Aviation Corps. Petitioner who was a Brigadier was entitled to the rank of Major General in Aviation Corps (UOI Vs Narinderjit Singh Sidhu, Supreme Court, 29th Sep 2010) Adverse report provided for period beyond the one covered by the ACR. Quashed. Petitioner to be considered afresh for promotion (AK Singh Vs UOI, Principal Bench AFT, 16th Dec 2010) Since order of discharge was illegal and reinstatement had been ordered, Petitioner ordered to be considered for notional promotion (Jaswant Singh Vs UOI, Principal Bench AFT, 04th Jan 2011) Annual Confidential Report written at a particular point of time cannot be reviewed based on a fresh policy. Expunging remarks of one officer in order to enable him to steal a march in promotion over another, held not proper (Pradeep Bhargava Vs UOI, Principal Bench AFT, 20th Jan 2011) Officer inducted in DGQA and assured consideration for higher promotions. Later policy changed retrospectively and Petitioner informed that he was not eligible for higher promotions. Though Respondents can alter policy, they cannot do it retrospectively to the detriment of the Petitioner and the same can only be done prospectively. Petitioner to be considered for further promotions as per policy applicable to him prior to implementation of new policy which shall only operate

ACR & Promotion: ACR initiated before finalisation of disciplinary case. Respondents stated that ACR was initiated after finalisation of Court of Inquiry. Held that the term finalisation used in the relevant orders referred to finalisation or closure of the entire case and not merely conclusion of Inquiry. A Confidential Report also not communicated to Petitioner and kept on record without Officers signatures or authentication, Held not proper. Respondents also took plea of case being time barred. Held that petition was directed towards the very topical inclusion of an invalid report in a recently held promotion board hence the claim was not time barred. Held that passage of time would not legitimize patently illegal action of Respondents and they cannot take benefit of their own wrongs. The Courts cannot close their eyes to a wrong. Rejection order
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prospectively (GS Grewal Vs Chandigarh AFT, 15th Apr 2011)

UOI,

ACR quashed being biased and subjective. Officer given 6 show cause notices while he was in ICU. This shows how he was treated by IO and RO. Petition allowed (Subodh Shukla Vs UOI, Principal Bench AFT, 02nd May 2011) Petitioner who was commanding an SSB Battalion asked to command two battalions 1200 kms apart. On his pointing out the practical difficulties supported by chain of command, the DG directed adverse entry in his ACR. Held that the term operational performance not upto mark was totally subjective and not supported by objective facts. Subjective satisfaction cannot be whimsical. Also held that though the DIG resisted the subjectivity, the IG was not a man of steel and buckled under the pressure of DG. Adverse remarks quashed and costs awarded (Upendra Prakash Balodi Vs UOI, Delhi HC, 24th Feb 2011 and UOI Vs Upendra Prakash Balodi, Supreme Court, 06th Jul 2011)

many years before seeking the writ. both Courts could determine belated challenge to ineffective assistance when averred that the accused would not have pleaded guilty to charges had he known that pleading guilty would result in deportation proceedings (United States Vs Denedo, US Supreme Court, 08th June 2009) Provisions requiring reasons in support of District Court Martial verdict missing in Air Force Rules but available in Army Rules. This anomaly requires immediate attention of Ministry of Defence (Deepak Kumar Das Vs UOI, Kolkata AFT, 20th Apr 2010) Question examined whether in view of the provisions of Sections 160 and 161 of the Navy Act which provide for review of a court marital by the JAG of the Navy, the AFTs jurisdiction could be said to be excluded save where there is perversity or an error of jurisdiction? And whether the AFTs powers of review qua the Navy are identical to the powers of the HC under Art. 226 and similarly confined? Held, No, the objects of the AFT Act make clear that it is meant to provide a forum with a judicial member to review the findings of the Govt. The AFT Act being a special Act would also override the prior general provisions of the Navy Act, particularly in view of Section 39 of the AFT Act which gives the Act overriding effect. No, the AFT is entitled to review evidence and findings of fact. The AFT Act makes this clear and no further external aid is required on this point (Vikrampal Singh Vs UOI, Principal Bench AFT, 26th Apr 2010) Officers dismissal ordered when Court Martial failed on technical grounds of limitation. Respondents took a plea that in view of SC decision in Harjeet Singh Sandhus case, order under Section 19 of
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Discipline & Court Martial :

Held that provision of Section 34 of Army Act is mandatory and there had to be an interval of 96 hours between information of charge to accused and his arraignment. The rule is absolute. Pleading of guilty by accused is immaterial. Court Martial proceedings vitiated. High Court had rightly set aside the Court Martial (UOI Vs AK Pandey, Supreme Court, 16th Sep 2009) Court of Appeals for the Armed Forces (CAAF) and the Navy-Marine Corps Court of Criminal Appeals (NMCCA), courts of limited jurisdiction have statutory subjectmatter jurisdiction over a foreign servicemembers writ of error coram nobis, even if the service-member had been discharged
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Army Act was justified. Held that right of Respondents is not unfettered and Petitioner was not responsible for delay in initiation of disciplinary proceedings. It was inaction of the Respondents which was responsible for the delay. Termination under such circumstances amounted to colourable exercise of power and abuse of provisions. Also held that dismissal order was not genuine and was actually brought into existence after superannuation of Petitioner and was ante-dated. Petitioner ordered to be reinstated and deemingly superannuated (SL Sharma Vs UOI, Chandigarh AFT, 29th Apr 2010) Admitted position is that the deceased had misbehaved with the wife of one Officer and he was taken by the accused persons for interrogation. He made an attempt to run away, in which he was caught. Again he was taken in the gypsy vehicle, from which he jumped off. The prosecution has been able to establish only the fact that the deceased was seen in the company of the appellantaccused and other co-accused. No overt act was attributed to the appellant-accused. In the absence of evidence, the case against the appellant-accused cannot stand. Appeal allowed. GCM set aside (MS Mandher Vs UOI, Principal Bench AFT, 14th May 2010) Point determined whether administrative termination after GCM amounted to double jeopardy ? Held : GCM of the Petitioner held, reprimand awarded. Revision ordered by confirming authority, not confirmed Show Cause Notice issued for administrative dismissal for sexual harassment. Respondents claimed that charges were different. Held that charges essentially the same earlier GCM proceedings not placed before COAS or COAS did not apply mind. Executive authority cannot disregard GCM with the stroke of a pen. Show Cause Notice set aside and quashed. Respondents restrained from taking any action on basis of the show cause notice. Petition allowed
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(Debashis Mitra Vs UOI, Kolkata AFT, 20th Jul 2010) Whether a person can be discharged on the basis of departmental enquiry (Court of Inquiry) when later acquitted by a Court of Law for the criminal offence ? Held Yes. Petitioner not discharged purely on the basis of criminal case but on the basis of domestic enquiry rules and procedures were followed. Petition dismissed (SC Pardhan Vs UOI, Chandigarh AFT, 26th Jul 2010) Whether the discharge of an individual from Indian Air Force on the ground that his wife accepted employment in a hospital abroad is legal and proper ? Held, Yes (Binu Augustine Vs UOI, Kochi AFT, 20th Aug 2010) Petitioner helping brother in his sinking business. Petitioner not himself indulging in business violation of Air Force Order alleged but not examined by Court of Inquiry or Summary of Evidence. Nothing on record to show allegation of Petitioner being potential security threat. Seems proceedings initiated with predetermined mind. Decision of Court Martial suddenly dispensed with and Petitioner dismissed administratively. Cheque bouncing does not amount to moral turpitude. Dismissal order set aside, dismissal converted into voluntary discharge with all consequential benefits. Petition allowed (George Mathew Vs UOI, Kochi AFT, 30th Sep 2010) Petitioner was a medical officer charged with outraging modesty of patients. Procedural lapses at pre trial stage would not vitiate trial. Touching of breasts necessary during the particular examination allegation of touching of private parts came in at a subsequent stage and mitigated the offence. Punishment of cashiering not only disproportionate but also impermissible. Conviction converted into discharge with a

fine of Rs 50000 (SS Bedi Vs UOI, Principal Bench AFT, 01st Oct 2010) Whether the disallowance of certain questions in cross examination and the requirement that questions be put in writing to witnesses amounted to a violation of Army Rule 180 with respect to a Court of Inquiry (CoI) and whether it was permissible for the Army to annex additional documents as annexures to the report of the CoI without giving the Petitioner access to the same during the course of the CoI? Held- No, a large volume of evidence was recorded and the Presiding Officer was within his rights in curtailing the length of the inquiry by requiring questions to be submitted in writing. Also held - No, an additional CoI was directed to be convened giving the Applicant the opportunity to cross examine witnesses on the basis oft these additional documents as the CoI is a fact finding body, the observations of which could prejudice the future trial of the officer (Sanjay Jethi Vs UOI, Principal Bench AFT, 08th Oct 2010) Question considered whether Court of Inquiry, constitution of which was contrary to Rule 177(3) of Army Rules, 1954 and in violation of the provisions of Para 518 of the Regulations for the Army, 1987, can be sustained ? Held, No the whole proceedings are illegal and unsustainable. Court of Inquiry proceedings against a Lt Gen and all further proceedings thereto setaside (Gurjit Singh Dhillon Vs UOI, Kochi AFT, 26th Nov 2010) Shown that Court of Inquiry proceedings not attached with show cause notice. Authorities ought to have given him the documents. Non furnishing court of inquiry fatal. Dismissal set aside and converted into discharge with full benefits. Appeal allowed (RN Panday
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Vs UOI, Principal Bench AFT, 01st Dec 2010) Confession while under custody was not voluntary. Such confessional statement, which was subsequently retracted by him, cannot form the sole basis for the charges levelled against him. Merely convicting him on the basis of the extra judicial confession does not inspire confidence and the appellant cannot be held guilty. Appeal allowed. Appellant deemed to have been discharged from service from the date of the impugned order and entitled to all pensionary benefits from the date of his discharge (Jai Prakash Rana Vs UOI, Principal Bench AFT, 01st Dec 2010) Not signing plea of guilt but stating that a person does not want to serve the Army cannot be taken as a substitute of plea of guilt. In the circumstances plea of guilt should have been converted into plea of not guilty resulting in full fledged trial SCM set aside. Appellant deemed to be in service till minimum pensionable service. Appeal allowed (Naresh Chand Vs UOI, Principal Bench AFT, 08th Dec 2010) Officer being investigated for Malegaon Blast case. Petitioner not granted full opportunity of examination of witnesses. Army Rule 180 violated. Additional CoI ordered. (Prasad Purohit Vs UOI, Jaipur AFT, 09th Mar 2011) Jawans deserting en-route and abandoning goods entrusted to them is a serious matter and punishment of compulsory retirement was not disproportionate (Dinesh Kumar Atri Vs UOI, Delhi HC, 10th Mar 2011) Penalty of dismissal by BSF authorities not shocking since Petitioner had already been punished 8 times before in service, moreover the offence was during duty at Border Outpost (Jagraj Singh Vs UOI, Delhi HC, 15th Mar 2011)
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Appeal against Summary Court Martial (SCM) filed after 23 years. Highly belated hence dismissed. Case law discussed (KS Tiwari Vs UOI, Delhi HC, 01st Apr 2011) Petitioner dismissed by Summary Trial. Navy did not provide opportunity to opt for court martial. Once besides other punishments, the CO had come to the conclusion that reduction of rank had to be effectuated, accused had to be given opportunity of court martial under Naval Statutory Regulation 30 (c). procedure not followed. Punishment set aside, Petition allowed (PK Parida Vs UOI, Chennai AFT, 17th Sep 2010 and UOI Vs PK Parida, Supreme Court, 07th Jul 2011) Railway Protection Force personnel inflicted with 2 major and 5 minor penalties in the force. Was incorrigible. Past conduct also needs to be seen. Petition dismissed (Raman Bihari Lal Vs UOI, Delhi HC, 28th Apr 2011) CRPF staffer attempted to commit suicide due to a broken heart. Plea for re-induction refused but penalty of dismissal from service watered down to removal (Sachin Kumar Vs UOI, Delhi HC, 25th March 2011) Procedural lapses in dealing with disciplinary action against CISF staffer. Inquiry officer or disciplinary authority did not apply mind. Dismissal set aside, reinstatement ordered (Onkar Singh Vs UOI, Delhi HC, 17th Mar 2011) Deputy Commandant of BSF in Insurgency affected area charged with accepting gifts assessed at a higher side @ Rs 980. Petitioner was expected to be friendly with locals and to win their confidence. Charges quashed. To be considered for promotion consequentially even though he has retired (HD Chakraborty Vs UOI, Delhi HC, 21st Mar 2011)
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Air Force officer held guilty of theft and other related charges. Enough evidence available, witnesses support the charges. Court of Inquiry was not mandatory. Petition dismissed (S Pandey, Principal Bench AFT, 01st Apr 2011) Displeasure expressed over callous manner in filing submissions in the Court by CRPF. DG CRPF directed to take steps to strengthen the legal department of the force (Kishor Kumar, Delhi High Court, 04th April 2011) Person serving in the BSF convicted by Force Court for intoxication. Admitted being intoxicated. Cannot be granted relief on merits (Jandel Singh Vs UOI, Delhi HC, 08th Apr 2011) Role of appellant being overall controlling officer was limited. Punishment of dismissal was shockingly disproportionate for his interpretation of a particular rule and for the lapses of his junior officer and breach committed by the contractor. Dismissal setaside and replaced by 8 years loss of service for pension and severe reprimand (Bodupalli Gopalaswami Vs UOI, Supreme Court, 12th Sep 2011) Officer terminated from service and pension forfeited. Court of Inquiry was carried out to enquire into allegations of misappropriation of canteen funds. Army Rule 180 not invoked against the Petitioner but Show Cause Notice issued for termination of services after CoI. Held that it was admitted that Army Rule 180 not complied with despite observation to the effect by convening authority, Petitioner punished totally on the basis of the CoI. Judgements quoted by the Respondents that shortcomings in CoI will not vitiate trial as long as the accused gets opportunity of defence, distinguished. Held that in this case the accused did not face a trial but faced
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administrative action based solely on CoI. Termination and forfeiture of pension set aside (BK Mall Vs UOI, Principal Bench AFT, 22nd Sep 2011) Petitioner court martialled for charge under Army Act Section 38(1) that he had failed to rejoin on expiry of leave and voluntarily surrendered thereafter. Held that if the Petitioner had re-joined voluntarily then he ought to have proceeded against under Section 39 and not under Section 38(1) (S Sakthivel Vs Commanding Officer, Chennai AFT, 05th Dec 2011)

been equated with Colonels of Army for status but only for disciplinary powers. The apprehension of the Petitioner, a Colonel of the Army, are misplaced (Nagendra Singh Vs UOI, Delhi HC, 22nd Jan 2010) Question before Tribunal whether retiral benefits could be withheld from the Petitioner on account of Discipline Vigilance (DV) ban imposed on him? It was found that DV ban against the Petitioner had been lifted and therefore he was entitled to all retiral benefits with 12% interest. While Rule 3-B of the Pension Regulations for the Army, 1961, Part-I empowers the respondents to reserve their right to withhold or reduce the pension of a personnel against whom any departmental or judicial proceedings are pending or instituted after retirement in respect of an event which took place not more than 4 years before such institution, no action has been pursued against the Petitioner (Narender Kumar Yadav Vs COAS, Principal Bench AFT, 12th Mar 2010) Whether a non-commissioned officer serving in the Assam Rifles, who was the recipient of a Sena Medal, could be denied the one time cash award to be awarded to all defence personnel who were recipients of such medals? Held, No. The Petitioner is subject to the Army Act subject to modifications, and serves in a para-military force. The Respondents cannot be allowed to prevaricate and quibble about the definition of defence personnel and make the Petitioner, who is a gallant soldier, chase after them for policy clarifications. Benefit directed to be released within 4 weeks (Jasbir Singh Vs UOI, Punjab & Haryana HC, 19th Mar 2010)

Policy, Benefits and Others:

Totally irrational to grant preference to wards over defence personnel themselves. Ex-servicemen cannot be placed at a disadvantageous position than wards. Petition allowed (Harsh Vivek Singh Vs State of Punjab, Punjab & Haryana HC, 23rd Jul 2009) Question examined whether defence Union Territory pool quota can be pooled together with All India quota ? Clubbing of quota held to be entirely incorrect. Incongruous parts of prospectus set aside and held unconstitutional. Petition allowed (Avnit Hira Vs UT Administration, Punjab & Haryana HC, 07th Aug 2009) Service in UP Power Corporation to be treated as Group A service for the purposes of determining promotion etc in the BSF. Reference to Group A, B etc only denotes particular responsibility. Pay scale held earlier was even higher than BSF. Petition allowed (Lalit Kumar Jain Vs UOI, Delhi HC, 19th Jan 2010) Superintending Engineers of General Reserve Engineering Force (GREF) have not
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Applicant got himself treated in a Private Hospital being the member of ECHS Emergency and type of disease will not wait for empanelled hospital and it is only the treatment, which is to be given priorityApplicant held entitled for reimbursement of medical bills given at the time of his treatment (Om Prakash Yadav Vs UOI, Jaipur AFT, 18th May 2010) Petitioner a 100% disabled soldier suffered injury in Kargil area during operational movement in a jeep accident. Ex-gratia payment (Haryana Govt) refused on the ground that Petitioner had not suffered injury in a heroic act but in a motor accident in operational area. Held that heroism is a wrongly exaggerated expression and there is no requirement of a person actually placing his finger on the trigger to be entitled to payment. Policy covers battle casualties and Army has declared the said casualty as Battle Casualty. Petitioner held entitled to the amount (Arvind Kumar Suhag Vs State of Haryana, Punjab & Haryana HC, 24th May 2010) Commanding Officer not competent to discharge. Discharge order passed in 1998 held to be illegal. Discharge order directed to be modified to discharge in 2004 rather than 1998 so as to enable Petitioner to earn pension by completing pensionable service (Badri Koteshwar Rao Vs UOI, Chennai AFT, 23rd Jun 2010) Army units located in Jammu & Kashmir are also amenable to the RTI Act passed by the Central Govt though the Act does not apply to J&K (UOI Vs Veena Kohli, Delhi HC, 28th Jul 2010) Non-Pensioner ex-servicemen refused limited medical treatment in Military Hospitals and Medical Entitlement Cards issued to them not honoured. Held, not proper. Rules and regulations cover entitlement of non-pensioners in Military
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Hospitals and there is a provision for reimbursement of medical expenses of nonpensioners by Kendriya Sainik Board, whereas pensioners are fully covered by ExServicemen Contributory Health Scheme (ECHS). Difference of opinion between administrative and medical authorities Medical facilities being an essential service often critical in making difference between life and death should not be allowed to degenerate into whimsical personality-based interpretation. Non-Pensioner ESM continue to be entitled to medical facilities (AN Chopra Vs UOI, Chandigarh AFT, 17th Sep 2010) Average entries were to be conveyed to the JCO/NCO concerned even though the policy laying down the same was promulgated later, since the reasons behind the said policy was pre-existing (Ghanshyam Jha Vs UOI, Lucknow AFT, 28th Sept 2010) Petitioner discharged with only 5 years + service in 1953. Petitioner discharged by authority not competent to discharge and without referring to invaliding Medical Board as per rules. Discharge of the Petitioner null and void. Petitioner notionally to be discharged on completion of 15 years of service. Arrears restricted to 3 years prior to filing of Petition. Petition allowed (N Subbaiah Vs UOI, Chennai AFT, 08th Oct 2010) Petitioner due to retire on 30.6.2009, two years prior to the date of superannuation, the Government changed the policy for giving extension of two years service. Words 'past case' means that persons who had already retired would not be entitled to seek reopening of their case. Respondents had enough time to reconsider the case of the petitioner and take a decision before his retirement. Petitioners eligibility is to be considered again within a period of one month (BC Barua Vs UOI, Kochi AFT, 29th Oct 2010)
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Forces cannot divorce themselves from National AIDS Control Policy. Discharged person to be re-examined in view of the policy and re-instated if falling within acceptable limits (Jagdish Singh Mahara Vs UOI, Lucknow Bench AFT, 02nd Nov 2010) Units should have been more diligent in publishing occurrence reports, even cancellation of discharge on withdrawal of request of discharge was illegally denied. Applicants statement that he shall not withdraw request of discharge is of no consequence since there is no estoppel against statutory provisions which permit such withdrawal delay of 6 years immaterial since Applicant had been regularly representing. Application disposed with direction to take corrective measures of granting relief to the Applicant (Lavhate Sharad Baran Vs UOI and others, Kochi AFT, 09th Nov 2010) Consider pre-mature retirement request of IAF officer despite not being finally superseded (Sharan Choudhri Vs UOI, Principal Bench AFT, 07th Jan 2011) Petitioner entitled to, and to be paid foreign allowance with interest at par with First Secretary (KM Sreedharan, Chennai AFT, 13th Jan 2011) Can ECHS re-imbursement be denied in case of a medical emergency happening outside India ? Held No. In case of such an emergency, the pensioner concerned would have to be re-imbursed at Indian rates. Medical reimbursement held akin to Right to life (TS Sekhon Vs UOI, Chandigarh AFT, 28th Feb 2011) Bank could not insist on the same level of qualifying marks as general quota for the reservation quota for ex-servicemen
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candidates. Petition allowed (Dayal Chand Vs Oriental Bank of Commerce, Punjab & Haryana HC, 03rd March 2011) Concealment of information regarding minor criminal case in enrolment form for Delhi Police. Candidature cancelled. Selection restored by Supreme Court. Held that lenient view should be taken since it may not have been disclosed by the candidate thinking that his candidature may be cancelled. Youth often commit indiscretions, should be condoned (Commissioner of Police Vs Sandeep Kumar, Supreme Court, 17th March 2011) Discharge of Petitioners, staffers of various para-military forces, on account of colour blindness set aside. Cut-off date in policy also set aside. Historical evidence of colour blind soldiers being used to the benefit of the army in special ways discussed. Relief granted. (Sudesh Kumar Vs UOI, Delhi HC, 22nd March 2011) Officer denied pay and allowances of Lt Col for about 7 years and decision on administrative action also delayed inordinately. Repeated queries did not elicit any response. DV ban allowed to remain in force for an unduly long period. Held that gross injustice had been done and Petitioner allowed costs of Rs 50,000 and 10% on interest of pay and allowances. Army HQ directed to investigate matter and initiate action against officers responsible for the lapses (GS Josan Vs UOI, Chandigarh AFT, 30th Mar 2011) Removal of naval officer from Aviation cadre held not proper. Petitioner directed to be reinstated to a non-flying post in the aviation cadre and also to restore the Observers Badge (Anup Kumar Vs UOI, Kochi AFT, 31st Mar 2011) Regimental Commissioned Officers not allowed change in retirement age or terms of
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engagement in line with the promotion policy applicable to rest of the Army. Authorities had shown laxity and did not take proposal to logical conclusion. Petitioners entitled to notional benefits of promotion to the rank of Lt Col (Rabindra Singh Vs UOI, Kolkata AFT, 04th Apr 2011) Can Counter Insurgency allowance as admissible to Regular Army personnel be denied or recovered from those Regular Army personnel who are posted to Border Roads Organisation (BRO) units?. Held that the military pay and allowances of Army personnel are protected under Regulation 18 when they are posted to BRO. Moreover, bullets of militants do not discriminate between Army personnel posted in BRO in counter-insurgency areas vis--vis those posted to other army establishments (AK Bhutani Vs UOI, Chandigarh AFT, 04th Apr 2011) Held that cadre of administrative officers of Border Roads Organisation should be granted formal encadrement. Special Pay / HQ Allowance also to be released to Petitioners (KL Noatay Vs UOI, Delhi HC, 26th Apr 2011) Decisions rendered by AFT would be amenable to writ jurisdiction of the High Court. Case law discussed. Other examples discussed. AFT not truly a judicial body (AD Nargolkar Vs UOI, Delhi HC, 26th Apr 2011) Notification by Delhi Govt allowing Army College of Medical Sciences the benefit of 100% admission for wards of Army personnel held to be ultra vires of the Constitution of India. (Indian Medical Association Vs Army College of Medical Sciences, Supreme Court, 12th May 2011) Ministry of Defence has not implemented Dynamic Assured Career Progression (DACP) Scheme for Army doctors despite
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the fact that govt order was issued 3 years back. This is clearly detrimental to the interests of AMC officers. Respondents directed to implement scheme (Sanjeev Sehgal Vs UOI, Chandigarh AFT, 18th Jul 2011) IPS officer challenging cadre allotment to candidate lower in merit in 2001 while the allotment was made a few years back. High Court correct in holding that such review of cadre allotment at a belated stage may not be conducive to public interest (G Srinivas Rao Vs UOI, Supreme Court, 19th Jul 2011) Bank is amenable to the jurisdiction of AFT. Bank is the agent of the Army and hence the Army is vicariously liable. Despatching the Pension Payment Order to the Bank but not ensuring payment would not be a discharge of duty by the employer. AFT decision holding Bank not liable, quashed. Application allowed, Petitioner to be paid 12% interest (IS Roperia Vs UOI, Delhi HC, 09th Aug 2011) Delhi High Court had ordered reinstatement of Women officers who were released on completion of short service commission terms. UOI challenged the judgement before the Supreme Court which issued notice in the matter and stayed the contempt proceedings. Officers however not reinstated. Application filed by officers before Supreme Court Held that only contempt proceedings before High Court were stayed and not the judgement and the officers were entitled to reinstatement in terms of the High Court order and hence directed to be reinstated (Secretary Ministry of Defence Vs Babita Puniya & others, Supreme Court, 02nd Sep 2011) There was evidence that a person declared a deserter intended to join back but was not allowed. Desertion and dismissal set aside. Petitioner directed to be taken back by treating him notionally in service (Anup
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Kumar Pradhan Vs UOI, Principal Bench AFT, 06th Sep 2011) Husband of Petitioner, a mentally ill soldier, wandered out of unit and held safely by Govt Railway Police. Military authorities kept writing to each another but did not collect him from GRP authorities. Shown on leave from a back date. Found dead in a Well. Court of Inquiry held after 11 years. Held that authorities acted callously and negligently. In view of SC decision in Charanjit Kaurs case, widow held entitled to Special Family Pension and exemplary costs. Special Family Pension ordered with interest and Rs 10,00,000 compensation (Navindra Devi Vs UOI, Chandigarh AFT, 08th Dec 2011)

Clarification of inclusion of NPA for pension purposes issued (MoD, 16th Mar 2010) More categories added for the purposes of ex-gratia payment @ Rs 15 lacs (MoD, 04th Jun 2010) Clarifications issued with regard to Child Care Leave (DoPT, 30th Dec 2010) Revised pensionary orders issued for TA and EC/SSC officers who retired between 01 Jan 1996 and 31 Dec 2005 (18 Jan 2011) Revised letter issued for grant of casualty awards such as Disability / Special Family and Liberalised Family Pension etc for pre2006 retirees based on 6th CPC post-2006 scales (15th Feb 2011) Monetary allowance attached to gallantry awards enhanced (MoD, 04th Mar 2011) Rule 11(a) of the Leave Rules for the Army amended (Apr 2011) Gratuity recovered on account of abrogation of weightage system in respect of officer who retired after 01 Jan 2006 to be paid back to affected personnel (MoD, 27th Jun 2011) Orders issued regarding encashment of accumulated leave (MoD, 12th Apr 2010 and 18th Jul 2011) Orders issued that family pension being released to a person would not be included as income to calculated dependency criterion for grant of family pension (DoPPW, 30th Nov 2011)

DEVELOPMENTS AND MISCELLANEOUS : New pension scales issued for personnel from the rank of Sepoy to Subedar Major (MoD, 08th Mar 2010) New Rules issued for ex-servicemen reemployed in civil capacity with regard to fixation of pay (DoPT, 05th Apr 2010) Policy issued for revision of rules regarding stay in Hotel by govt employees (MoF, 11th Jun 2010) Orders issued for regulating the pension of govt employees on extraordinary leave, suspension and unauthorised absence as on 01 Jan 2006 and who retired or died thereafter without joining duty (DoPPW, 15th Jun 2010)

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CONTRIBUTIONS AND ARTICLES :

To Prove Consent or Not - Is that an Element? The United States Militarys New Sexual Assault Statute Problems

Michelle Lindo McCluer

On October 1, 2007, the sexual offenses previously scattered throughout the Uniform Code of Military Justice (UCMJ), the basis for United States military jurisdiction over service members, were consolidated into fourteen offenses under a new Article 120. This new approach to sexual offenses in the military was the result of Congress mandate that the Department of Defense (DoD) submit ideas for modernizing its sexual assault code. DoDs response to Congress can be summarized as Thanks for asking, but our system is doing just fine without any changes. Given the lack of input from those who would prosecute and defend the new statute, Congress drafted its own convoluted sex crimes code to replace the old one, incorporating offenses that had not previously been enumerated and changing the elements needed for convictions of others. Perhaps most notably, the new Article 120 deleted consent from the list of elements the United States must prove for most sexual offenses. In doing so, Congress followed a broader, civilian trend of shifting the focus of sexual assault cases from the complainants behavior to that of the accused. One of the new offenses has caused quite a bit of litigation since its implementation. Before 2007, the offense of aggravated sexual assault, per se, didnt exist in the Uniform Code of Military Justice, although the underlying behavior could have been punished anyway. Article 120(c)(2), UCMJ, now defines aggravated sexual assault as follows: Any person who engages in a sexual act with another person of any age if that other person is substantially incapacitated or substantially incapable of (A) appraising the nature of the sexual act; (B) declining participation in the sexual act; or (C) communicating unwillingness to engage in the sexual act; is guilty of aggravated sexual assault and shall be punished as a court-martial may direct. Article 120(r), UCMJ, lists aggravated sexual assault as an offense for which consent can be an affirmative defense. Subsection (t) of Article 120 lists the definitions for consent and affirmative defense. Notably, Article 120(t)(14)(B)(ii)(I) states A person cannot consent to sexual activity if substantially incapable of appraising the nature of the sexual conduct at issue due to mental impairment or unconsciousness resulting from consumption of alcohol... A physical inability to decline to participate in the sexual activity or a physical inability to communicate such unwillingness to engage in the sexual activity also precludes consent. Article 120(t)(14)(B)(ii) and (iii).

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In American criminal trials, including courts-martial, the government has the burden under the Due Process Clause of the Fifth Amendment to the Constitution of proving beyond a reasonable doubt every element of a crime. However, the law may require an accused to shoulder the burden of persuasion on affirmative defenses. Even so, defense counsel, trial counsel, and military judges at the trial level have all struggled with the double-burden shift that accompanies the new Article 120 provisions. The definition of affirmative defense in Article 120(t)(16) assigns the burden of proving the defense on the accused. The accused must prove consent by a preponderance of the evidence, and then the prosecution must disprove the affirmative defense beyond a reasonable doubt. As the current statute reads, under Article 120(t)(16), the government would still have the opportunity to prove an accuseds guilt after the defense proved the affirmative defense by a preponderance of the evidence. However, this requires the impossible. How can the finder of fact find the accused guilty of taking sexual advantage of an incapacitated individual after determining that the defense proved consent (which requires the capacity to do so)? Cases raising these issues are now making their way through the military appellate courts, where the highest United States military court, the Court of Appeals for the Armed Forces (CAAF), recently noted the impossibility described above with regard to the double burden shift. Defense counsel have also argued that placing on the accused the burden of proving consent unconstitutionally shifted the burden of proving the element of force to the defense because consent is the other side of the force coin. That is because, while consent is no longer an element of most sexual assault offenses under the revised Article 120, it is undeniable that consent is related to the element of force, which is still part of the statutory framework of sexual offenses. This is particularly true when constructive force comes into play, as it does in cases such as those arising under Article 120(c)(2). In those aggravated sexual assault fact patterns, the force element necessary to convict is supplied by the sexual act itself. The language of the incapacity section of the revised Article 120 emphasizes the integral nature of consent to proving the elements of the crime by including the requirement that the complainant be unable to communicate unwillingness to engage in or be incapable of physically declining participation in the charged sexual activity. That consent is completely incompatible with proving the substantially incapable element of the offense is made clear through the use of the phrase A person cannot consent to sexual activity if substantially incapable... By putting the burden of proving such consent on the accused, he must, of necessity, prove that the complainant was substantially capable of verbally, physically, or otherwise manifesting her unwillingness to engage in the sexual activity. Recognizing the problems, some military judges have chosen to instruct court members using instructions from the previous version of the statute as an attempt to save the statute from its self. That is the second constitutional deficiency inherent in Article 120(c)(2). There is simply no way to read Article 120(c)(2) in conjunction with the applicable portions of Article 120(t) as valid allocations of the burden of proving the elements of the offense of aggravated sexual assault. Because Article 120(c)(2), read in conjunction with the applicable defenses and definitions, shifts the burden of proof of an element of the offense of aggravated sexual assault to the accused, this portion of the new Article 120 is facially unconstitutional. While the plain language of the same recent CAAF case that struck down the double burden shift did not find a facially deficient Article 120, it came close in declaring that the interwoven provisions of it
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unconstitutionally shift the burden of proving an element to the accused in an aggravated sexual assault case in which capacity to consent was an issue. Even before CAAFs most recent decision, the last session of Congress saw an attempt to remedy some of the defects of the new Article 120. Unfortunately, the legislature chose not to implement new provisions. For now, we are stuck with the deficient language; however, another attempt to cure the defects is in the works in the current Congress.

Michelle Lindo McCluer is on the board of Advisors of the National Institute of Military Justice (NIMJ) and is also its former Executive Director

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AFSPA : Its removal is currently unthinkable Thoughtful reflection needed instead Maj Gen Raj Mehta (Retd) The ongoing remove Armed Forces Special Powers Act (AFSPA) from Kashmir Valley selectively campaign is, in reality, a no-holds-barred war on the minds of the Kashmiri awaam, politicians, media experts, academics and human rights activists which has driven Indias governance in Kashmir and Delhi to virtual paralysis. The methodology used reeks of skilled extrapolation of the age old techniques of deception and propaganda. Deliberately left untended, unexplained and unimproved is the real issue of indifferent governance; gross Institutional neglect to take a call on development and growth; and a genetic reneging (since 1953) on Government promises made but never or notionally kept. In all fairness, two left handed compliments need to be paid with reference to the AFSPA conundrum: Firstly, to the astonishing success of the separatist agenda of driving India to the point of marginalizing its last bastion of sovereignty and nationhood the Armed Forces by seriously contemplating withdrawal of the protective shield of AFSPA in part or in full from them. Over three brief months of stone throwing, the separatists succeeded in making it the sole state agenda and made Delhi grimly reflect on its options in this regard. Emotions ran high to the extent that people forgot that the Army, which is the key beneficiary of AFSPA protection was nowhere near the confrontation which the intezamia had with the stone pelters and did not therefore fire on any stone thrower simply because town management (except partly in Sopore) is not its charter, nor did the State Government indent for its employment. Secondly, by failing to create the right political environment that would, itself, have ensured automatic removal of the disturbed area tag from Kashmir, successive governments at centre and state levels have unwittingly provided the enabling circumstances for the separatist agenda to succeed. To add fuel to the separatist engineered fire, it is, ironically the state government itself that has pressed the self-destruct button by demanding the selective removal of AFSPA and/or watering down of its draconian provisions.
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There is no coherent effort to explain to the Army and the country at large as to whose responsibility it will be if Army convoys passing through districts where AFSPA has been lifted (such as Srinagar) get targeted while carrying warlike materials such as ammunition. The responsibility for the carnage and destruction that would follow from such an attack has not been thought through. Two issues are relevant here. Srinagar and Budgam; the two districts that are sought to be cleared of the Army, also house bases and communication hubs of strategic importance. These include the Air Bases, International Airport, the Corps Headquarters, and the Logistics Depots that sustain the military. If the State police Chief says (on 12 December 2011) that he will need additional training and an increment of force of 20,000 more police personnel, whose case is it to hand over these districts to a force that has honestly stated it isnt prepared, trained or equipped just yet to take over? The recent attack in Srinagar on a senior ranking Cabinet Minister in which one of his entourage died due to terrorist attack clearly indicates that all is not well as has been surmised. Blaming such an attack on the military as has been suggested by a senior ruling party functionary is a puerile lie that has no takers even in the Valley, leave along elsewhere in the country. This article has spoken of deception and propaganda. Deception is the art of propagating beliefs that are either not true, or are not the whole truth. Its connected sub set; Crowd Manipulation, is the skilled use of propaganda principles such as addressing appeals to the masses, not intelligentsia; targeting emotions; keeping the message simple; preparing audiences for worst-case scenarios; and, finally, repeating the message constantly. Crowd manipulation thus creates a rhetorical battle space in which activists employ words, images, and sounds rather than physical forceto promote their agenda, as well as instigating the use of force both by crowds as well as by those in authority. Even a casual Kashmir watcher would agree that the separatists have skillfully employed both deception and crowd manipulation while governance has watched helplessly or reacted with excessive force, leaving the instigators rubbing their hands with glee. What does AFSPA actually do? Once the Government publishes a gazette declaring an area to be disturbed, the act allows Army officers to take punitive action under Sections 4 and 5 of the Act. This includes the right to open fire, arrest suspected criminals and enter and search without warrant. Section 6 states that legal proceedings against such officers can only be instituted after previous sanction of the Central Government. By implication, therefore, a soldier who has acted in the national interest is protected by law from the consequences of his actions. The separatists, however, see these powers as strong enough to cripple their malevolent designs. They therefore, desperately want its revocation/dilution/selective lifting at all costs. The oft repeated issue of AFSPA misuse by the Army arises and begs honest answers. Yes, there have been times when the Army has been at fault. These instances are well documented and severely punished. For instance, in the Major Rehman Hussain case, in 2005, the officer was promptly tried by a military court and cashiered for proven misdemeanours. That notwithstanding, pending cases of misuse of the Act must be fast tracked and dealt with as per the law of the land. The need for improving the pre-induction, on induction as well as on-the-job training and education of all ranks and its correct ground implementation is something the Army is working on. However, what remains off the radar is that the same soldiers, who sometimes have to fire,
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also spend quality time in doing Sadbhavna or development activities which have added quality to the lives of villagers in remote areas where the civil administration rarely visits due to risk to life and poor access. Such activities bring in an element of humanity in the soldier that has to be seen to be believed. In conclusion, the writer feels that, in order to unravel the extremely complex Kashmiri Gordian knot, you actually need the AFSPA, not surrender it because some elements legislate that you should. Ayn Rands take: You can avoid reality, but you cannot avoid the consequences of avoiding reality is apt. Instead of disturbing the AFSPA, the focus should shift instead, to the main issue; uplifting the Kashmiri masses and keeping promises made earlier, by dint of better, hands-on governance. That Omar Abdullah has, as of 14 December 2011, accepted that the lifting of AFSPA cannot any longer be placed on a timeline is a positive development which indicates that the reality of lifting it prematurely and the consequences thereof have come home to roost and have registered fully in the psyche of Governance at the State and Centre both. This should allow the Army the much needed respite and Institutional support it needs to consolidate its gains from what has been a very successful year in controlling terrorism in the valley and replacing it with continuing to work in concert with other Government agencies for State and national good; in line with the expectations of the awaam that is praying for peace, prosperity and a return to the Golden Age of Budshah Zain Ul Abidin, when Kashmir was a truly role model state in India.

Maj Gen Raj Mehta (Retd) is a former Armoured Corps officer who has commanded a Division and a Rashtriya Rifles Sector in the State of Jammu & Kashmir --------Abbreviations used in the Gazette : AFT Armed Forces Tribunal, CAAF - Court of Appeals for the Armed Forces, CoI Court of Inquiry, DCM District Court Martial, DoPPW Department of Pension and Pensioners Welfare, DoPT Department of Personnel & Training, GCM General Court Martial, HC High Court, MoD Ministry of Defence, SC Supreme Court, SCM Summary Court Martial, SGCM Summary General Court Martial, , UOI Union of India, US United States

Disclaimer and other information : The Gazette or the Editors do not claim technical correctness or veracity of any of the information provided and would not be liable for any loss caused because of the same. The Gazette may not necessarily subscribe to the views of the Contributors. Readers are suggested to check original certified sources and may not quote this Gazette as authority. The Gazette is meant for free non-commercial usage and may be distributed electronically free of charge without the requirement of any permission from the Editors or the Publisher. Contributory articles are welcome and may be mailed to navdeepsingh . india @ gmail . com. Queries for detailed judgments or policies mentioned in the Gazette, or those related to legal work linked with information published in the Gazette, would not be entertained or replied to. Readers may visit www . lawgazette . net or www . indianmilitary . info for updates. Thank You The Editorial Team. FLG Issue-1 21

NOTES

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