SHRI P. CHIDAMBARAM (CONTD): But, whether collateral security should be taken for one kind of loan or not, I do not think it is for us to say. Where we have got a genuine interest, namely, educational loans, PMRY, weaker sections, we have dispensed with collateral security. But, I think, the banking system has also to function. It cannot become a bankrupt system. If it becomes a bankrupt system, there will be no money to lend.
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SHRI P. CHIDAMBARAM: Under PMRY -- it is my recollection. I will correct myself if I am wrong -- if an asset is created, that very asset will stand security. That is very normal. If you create an asset under PMRY, that asset stands the security for the loan, which is very normal thing. There is nothing unusual about it.
Sir, some question was asked about stock exchanges. Stock exchanges are not doing payment and settlement of bank transactions. Stock exchanges are only platforms in which securities are traded. The payment and settlement is done only through the banking system. There was no need to bring stock exchanges in this Bill. As I explained, stock exchanges are regulated by SEBI, and SEBI will regulate the purchase and sale of securities. The payment is not through the stock exchanges. The payment is through the banking system.
Sir, I think I have answered most of the questions.
SHRI SHANTARAM LAXMAN NAIK: There is a provision regarding punishment in clause 25.
DR. E.M. SUDARSANA NATCHIAPPAN: Section 138 of the Negotiable Instruments Act gives punishment of only one year, but this clause 25 of this Bill gives two years' punishment....(Interruptions).
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): Hon. Minister will answer the clarification sought.
DR. E.M. SUDARSANA NATCHIAPPAN: Sir, under section 138 of Negotiable Instruments Act, lakhs of cases are pending before Magistrate Courts and High Courts. Now, if clause 25 is also applied, then more cases will come. Is the Finance Ministry making arrangement to compensate the cost of the judicial system? I am raising this point because a large backlog of cases is there. Will separate courts be constituted and will the cost of judicial system be borne by the Ministry of Finance?
Then, regarding credit cards, more charges and usurious interest are asked for, that is, more than 36 per cent, 72 per cent. This is going to be regulated through this payment system. Now, it is contemplated. Is RBI going to regulate that system also?
Finally, there are plenty of cases relating to cyber crimes which are coming up in the banking system. When this system of electronic transfer of funds is operationalised, will the cyber crimes be curtailed by way of any regulation, or is there any rule going to be made in this respect?
SHRI P. CHIDAMBARAM: Sir, it is true that there is difference in the punishment under section 138 of Negotiable Instruments Act and clause 25 of the Payment and Settlement Systems Bill, 2007. Under section 138, what we are talking about is the dishonour of a cheque payment. In clause 25, we are talking about dishonour which occurs in an electronic funds transfer. If you see the definition of 'electronic funds transfer' in clause 2(1)(c), it says, "electronic funds transfer' means any transfer of funds which is initiated by a person by way of instruction, authorisation or order to a bank to debit or credit an account maintained with that bank through electronic means and includes point of sale transfers, automated teller machine transactions, direct deposits or withdrawal of funds, transfers initiated by telephone, internet and card payment;". (continued by 4o - sk)
SHRI P. CHIDAMBARAM (CONTD.): These are systematically large or systematically more damaging violations. That is the reason, why I am told, they have put a two-year limit. But, I take this on board, let us pass this Bill. If necessary, we will amend it on a suitable occasion. If we think that two years is too much, we will certainly bring it down to one year. But, I think, they think that this is a systematically more damaging violation if there is dishonour through electronic funds transfer and they have put two years. But, I will take a second look at it later.
ÁÖß ²Ö®Ö¾ÖÖ¸üß »ÖÖ»Ö ÛÓú”û»Ö : ÃÖ¸ü, ‹Ûú ¯ÖÏ¿®Ö ¸üÆü ÝÖµÖÖ Æîü ×Ûú ÃÖÖÓÃÖ¤üÖë ÛúÖê »ÖÖê®Ö ®ÖÆüà ..(¾µÖ¾Ö¬ÖÖ®Ö)..
SHRI P. CHIDAMBARAM: That does not have anything to do with this Bill. ...(Interruptions)..
DR. E.M. SUDARSANA NATCHIAPPAN: Sir, I sought a clarification regarding cyber crimes. ...(Interruptions)..
SHRI P. CHIDAMBARAM: Sir, cyber crimes are not concerned with this Bill. Cyber crimes are concerned by cyber crime laws. I think, the penal code has been amended to deal with some of the cyber crimes. This Bill deals only with payments and settlements through new modes of payment and settlement which have come about. We only know about checks. At least, most of us grow up knowing only cheque payment and receiving by cheque. Now, new modes of payment have come and this Bill deals only with that. Cyber crimes are dealt with by separate law and I am not ...(Interruptions)..
DR. E.M. SUDARSANA NATCHIAPPAN: Sir, during the course of the debate ...(Interruptions).. If there is a cyber crime committed, whether this Bill will deal with that? ...(Interruptions)..
SHRI P. CHIDAMBARAM: No. This Bill will punish anyone who violates the provisions of this Bill. But, if he commits a cyber crime ...(Interruptions)..
DR. E.M. SUDARSANA NATCHIAPPAN: No, no, within the Bill, transaction within the Bill ...(Interruptions)..
SHRI S.S. AHLUWALIA: Sir, he is not talking about the cyber crimes. He is talking about electronic transfer of funds. ...(Interruptions)..
SHRI P. CHIDAMBARAM: Yes, that is punishable under this Bill. ...(Interruptions).. Section 25 talks about payment and settlement using any electronic mode. That is precisely why section 25 is there. Section 25 starts by saying, "Where an electronic funds transfer initiated by a person from an account ...". If he uses modern technology, electronic technology, to transfer funds, and there is dishonour and he commits an offence under this Act, it will be punished. But, if he commits some other crime like cheating, that will be punished under the ordinary law. If he commits any other crime of forgery, that will be punished under the ordinary law. This section will be read, that is, he will be prosecuted for an offence under section 25 of this Act, read with corresponding sections of the penal code. The penal code is not replaced by this law. In fact, penal code laws will continue to remain. But, if he commits an offence and there is a dishonour of a transfer under electronic funds transfer, section 25 is attracted and he will be punished. So, I request the hon. Members to kindly pass the Bill.
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): I think no more clarifications are there. The Minister has replied to the hon. Members' questions and clarifications sought.
The question is:
"That the Bill to provide for the regulation and supervision of payment systems in India and to designate the Reserve Bank of India as the authority for that purpose and for matters connected therewith or incidental thereto, as passed by Lok Sabha, be taken into consideration".
The motion was adopted.
THE VICE-CHAIRMAN: We shall now take up clause-by-clause consideration of the Bill.
Clauses 2 and 3 were added to the Bill.
THE VICE-CHAIRMAN: There are three amendments (No. 1 to 3) by Shri Tapan Kumar Sen.
SHRI TAPAN KUMAR SEN: Sir, in view of the assurance given by the hon. Minister, I am not pressing my amendments.
Clause 4 was added to the Bill.
Clauses 5 to 38 were added to the Bill.
Clause 1, the Enacting Formula and the Title were added to the Bill.
SHRI P. CHIDAMBARAM: Sir, I move:
That the Bill be passed.
The question was put and the motion was adopted.
(Followed by YSR-4P)
MESSAGE FROM LOK SABHA
THE RAJIV GANDHI INSTITUTE OF PETROLEUM TECHNOLOGY BILL, 2007
SECRETARY-GENERAL: Sir, I have to report to the House the following message received from the Lok Sabha, signed by the Secretary General of the Lok Sabha:-
"In accordance with the provisions of rule 120 of the Rules of Procedure and Conduct of Business in Lok Sabha, I am directed to inform you that Lok Sabha, at its sitting held on the 3rd December, 2007, agreed without any amendment to the Rajiv Gandhi Institute of Petroleum Technology Bill, 2007, which was passed by Rajya Sabha at its sitting held on the 30th November, 2007."
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): Now, let us take up the Armed Forces Tribunal Bill, 2005.
THE ARMED FORCES TRIBUNAL BILL, 2005
THE MINISTER OF DEFENCE (SHRI A.K.
That the Bill to provide for the adjudication or trial by Armed
Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 and also to provide for appeals arising out of orders, findings or sentences of courts-martial held under the said Acts and for matters connected therewith or incidental thereto, be taken into consideration.
The question was proposed.
DR. GYAN PRAKASH PILANIA (RAJASTHAN): Sir, I am grateful to you for having given me an opportunity to speak on this very important Bill. This Bill deserves very careful consideration, studied deliberations, and not hurried disposal. But the House is nearly empty.
At the fag end of the day, I would like to bring to the kind notice of the hon. Defence Minister that this Bill has been lying in the cold storage for the past one-and-a-half years and I congratulate the hon. Defence Minister, Shri A. K. Antony, to wake up the Government from its slumber.
I may mention that this Bill was introduced in the Rajya Sabha on 20th December 2005. It was referred to the Standing Committee on 27th December, that means, seven days after its introduction in the Rajya Sabha. The Report of the Standing Committee was received on 16th May 2006, and since then, the Government did not do anything about it. However, better late than never.
mention that this Bill deserves very careful consideration because it deals
with our Armed Forces. It deals with our
guardians of frontier,
the Army, the sentinels of sky, the Air Force, and the hawks of the seas, the
Navy. These are the three wings of the
Armed Forces the nation is proud of and on whose valour and sacrifice the
security, the sovereignty, and the territorial integrity of the nation remains
assured. Because it
deals with very basic servicemen of our country who are
It may be worth telling that there were five agencies which recommended that such kind of a Bill should be brought forward.
(Contd. by RSS/4Q)
DR. GYAN PRAKASH PILANIA
(CONTD.): Number one, it was the
Law Commission, which in its 169th report, recommended for providing
an appropriate appellate forum to entertain appeals against final orders passed
by the Court Martial. Number 2 was the Supreme Court, which in its verdict in a
case, enjoined upon the Government to take steps to provide for, at least, one
judicial review in service matters. The third institution was the Estimates
Committee of Parliament which, in their 19th report, also advised a
constitution of such a Tribunal. The fourth was the Department-related
Parliamentary Standing Committee on Defence, who in their 20th
report, gave example of
(contd. by 4r)
DR. GYAN PRAKASH PILANIA (CONTD.): It appears surprising that such a disciplined people of the three Armed Forces were prompted to resort to the court for getting justice. Mr. Vice-Chairman, this is the time for the hon. Defence Minister, who is very sympathetic, who is very considerate, as a man of his wisdom and erudition should be, to consider what ails our Armed Forces and what is wrong therein. Why is it that those who are serving in the Armed Forces, particularly, the constabulary, the lowest rank, are not feeling satisfied? Why is the existing system of delivering justice to their grievances or redressing their grievances not good enough? What is wrong in the State of Denmark? That has to be looked into. This is the occasion for doing that. As is often said, and very rightly said, the Armed Forces move on two points. There are two strong pillars on which the Armed Forces operate and excel. They are ijjat and iqbal. If there is no ijjat, if there is no iqbal of the Armed Forces, they would not be worth their name. Ijjat is that which has to be earned and iqbal is that which has to be maintained. Ijjat has to come, if the officers treat their men rightly. They will get proper honour, proper respect and proper salutations from the heart of their subordinates, if they look into their grievances, if there is sunvayee. If there is no sunvayee, a man is not able to give expression to his peeda, and till he is able to tell that, there would not be right redressal. I am reminded, Mr. Vice-Chairman, of an instruction which is written on the facade of Chestwood House. It is worth reading and it tells its officers, "The safety, the honour and welfare of your country comes first, always and every time". I repeat it again, "The safety, the honour and welfare of your country comes first, always and every time. The honour, welfare and comfort of your men you command come next. Your own ease, comfort and safety come last, always and every time". If that sane advice, if that parting motto, which is given to every officer, when he is equipped with tips as a lieutenant, when he leaves the academy, is kept in mind, then, I think, most of the ills which are now visiting our Armed Forces regarding inner discipline and regarding redressal of grievances would be nearly sorted out. Men's requirement should come first and officers should sacrifice their own requirement for them.
Mr. Vice-Chairman, I am reminded of one incident in this connection which deserves, with your kind permission, a mention. That incident is about our Field Marshal Cariappa. When Air Marshal Nanda Cariappa, the son of the Field Marshal, was taken as a prisoner of war by the Pakistan forces in Khemkaran in 1965, President Ayub Khan conveyed to General Cariappa that his son would be released, if he so wished. It was a point of test for the General. He replied, "All the Indian prisoners of war are my sons; look after them all rightly". He did not get his son released because the highest man in the Armed Forces felt that the lowest man in the cadre was his son. If that is the attitude, then, the Armed Forces' ills will be sorted out; otherwise, there will be high attrition rates as there are now. This needs consideration.
(Contd. by VK/4S)
GYAN PRAKASH PILANIA (CONTD): This needs consideration. Why is the high attrition rate in Armed
Forces? Why are Colonels and Lieutenants
leaving the Armed Forces, who are the persons who lead the battalions on the
battle front? Why is constable
resigning? Why is attrition rate so
high? What is the reason? This is one point which needs consideration in the
light of what I have said should be the motto for officers. Why is the suicide rate so high? Why should there be suicides in the Armed
Forces? Why aren't men rightly looked after? What prompts them to kill themselves? There is a limit of despair. Why should it happen? Then fragging,
which you cannot bear at all,
when a constable kills his own Colonel, is an unheard of thing.
These are the points which show that there is something wrong in the
administrative system of the Armed Forces.
There is something which needs to be taken care of. Then, apart from this,
never unheard, scams in the Army.
The Army was considered to be pure, pristine, glorious, free from usual corruption charges. But now we find so many scams and ghotalas in the Army which we never earlier heard
of. There is the ration scam where senior officers eat ration of their Jawans, dal scam, meat scam which have all been reported. They are all facts which have come to the
notice of the higher echelons of the Armed Forces. The hon. Defence Minister is well aware of
them. Then there is the egg scam about
the size of an egg which should have been supplied. A smaller size of eggs has
been accepted. Then there is the liquor
scam where diversion of liquor meant for CSD canteens has taken place. Then there are fake gallantry encounters and
recently the passports scam. Brigadiers
and Major Generals are involved in this.
One Lt. General which is the highest post next to the General,
has been involved in these scams. At
least, Caesars' wife should be above suspicion.
We could never think that our glorious Army of which we are so proud,
could be beset with
such kind of scams and scandals.
There are court-marshals going on.
I think, ultimately, they will be punished. But the very existence of
scandals is something which makes us think what has happened to our Armed
Forces. There are
fake gallantry encounters which we could never think of, any Army officer worth
his name would like to get into it. Lastly, women officers being, what should I say, maltreated.
There are accusations of sexual overtures towards them and women officers are committing
suicides. It was highlighted in
newspapers. If the Gangotri
of the Armed Forces is not pure, from where will we get
So far as the constitution of a Tribunal is concerned, I would like to make one or two points. (Contd. by 4T)
DR. GYAN PRAKASH PILANIA (contd.): Sir, in the Bill, it is stated that in the matter of appointment of Chairperson and other Members, the Chairperson will be a retired Judge of the Supreme Court or a retired Chief Justice of the High court; there must be one judicial member and one administrative member. The Administrative Member can be a person of the rank of Major General or above. But what will be the collegiums which will recommend the appointment of Chairman and the Member? That is what has been mentioned in clause 7 of Chapter II, and I read: "No appointment, under this sub-section shall be made except after consultation with the Chief Justice of India." It is fine; the Chief Justice of India should be consulted when the Chairperson has to be either a retired Judge of the Supreme Court or a retired Chief Justice of the High Court. But what about consultation with the Chiefs of Services? You are making this Tribunal for the Armed Forces. There are three Chiefs of Armed Forces. Would they be consulted in this matter at all? Don't they have a stake in this Tribunal? Should we not take their advice? They are the guardians of their Forces. They are the Heads of their Forces. They are the people who are there to ensure Ijjaat and Iqbal of the Army, Navy and the Armed Forces. Should they not be consulted at all? Should it not be mandatory on the Government that their advice is taken, like the way the advice of the Chief Justice of the Supreme Court is taken? This Bill doesn't make any mention of it. I think the Defence Minister, at his leisure, may give a thought to it. This Bill is being made for regulating them in a better way, for giving them a better opportunity to ensure their service matters, to give them a fair trial for redressal of their grievances. But their Chiefs have no say at all in this. It seems surprising how they have been ignored, whether intentionally or they have been overlooked.
Sir, I won't take more time of the House because it is late in the evening now. But, at the end, I will mention that whatever I have said about the sagging morale of the Forces, the attrition rate, the suicide rate, fragging, the ill-treatment of women officers, the scams and ghotalas in Army, all these are only a tip of the iceberg. The affairs of the three Forces are shrouded in mystery and also shrouded in a clock of silence. General public and even the hon. Members of both the Houses of Parliament rarely get an occasion to go deep to know about that. So, whatever I have mentioned and submitted for consideration of the hon. Defence Minister is like a tip of the iceberg. Nine-tenth is hidden, and it needs some kind of proper administration of drugs to bring better health to the ailing Armed Forces, and I know, as a doctor, our Defence Minister will be able to do justice to the job. Sir, I thank you very much for bearing with me for so long and for giving me so much time for putting forth certain submissions on this very important Bill which, I again, say deserves careful consideration and there should have been more prolonged discussion by this House on this issue.
(Followed by 4U)
SHRI SILVIUS CONDPAN (ASSAM): Mr. Vice-Chairman, Sir, first of all, I congratulate the hon. Defence Minister for having brought forward this very good piece of legislation, the Armed Forced Tribunal Bill. I will not take very long, Sir. I would like to express my satisfaction over the fact that this Tribunal will now oust the jurisdiction of all courts, except the Supreme Court, whereby the resources of the Armed Forces in terms of manpower, material and time will be conserved, besides resulting in the expeditious disposal of cases and reduction in the number of cases pending before various courts. Ultimately, it will result in speedy disposal of cases with less expenses, and members of the Armed Forces will get relief. This is my observation. I would also like to remind the hon. Defence Minister that he knows that there were a good many tribunals functioning in our country. The tribunals should be functioning in the manner in which they were intended to function. But they are not functioning in that manner. I would like to cite an example. There is the Labour Tribunal. It was intended that the poorest of the poor will be given justice against the treatment meted out to them by their employers. It does not function regularly because there are no personnel or Presiding Officers available to preside over the tribunals. So, the tribunal should not suffer from this kind of disease. It should also not suffer on account of the fact that Government or the Supreme Court has not given the appropriate number of members to the tribunal, and so, as a consequence, for want of quorum, the tribunal does not function. Sometimes, the Chairman is not available and so, the tribunal does not function. These types of problems are there with many of our tribunals that exist in our country. Once upon a time, as a lawyer, I remember, we had suffered for our clients and our clients had suffered because, for want of Presiding Officer or member, there was no quorum and the tribunal was not functioning. I would like to caution our hon. Defence Minister who has very sincerely, with a great hope to give better legal relief to the Armed Forces personnel, has brought forward this Bill, that this tribunal should not suffer from the same problems. Sir, I do not want to repeat what our learned and senior friend, Shri Pilania, has already said in his submission very beautifully and excellently. So, for want of time, I do not wish to repeat them.
With these words, I support the Bill.
SHRI P.R. RAJAN (KERALA): Sir, thank you for having given me an opportunity to speak on this Bill at this late hour. I welcome this Bill as it is a step forward especially in the Defence department to redress the grievances of the Defence staff. At present, on going through the Bill, it may be seen that the present system of administration in different wings of our Defence forces, the Army, the Air Force and the Navy, is different. The Army and the Air Force provide the right to statutory complaints for the redressal of their grievances relating to service matters and the Court Martial; but, in the Navy, the aggrieved personnel has the right to be heard before the Advocate General in the Navy in regard to findings of the Court Martial before it comes to the Chief of the Naval Staff. A uniformity in the dispensation of justice is, therefore, required.
(Contd. by 4w/tdb)
SHRI P.R. RAJAN (CONTD.): That is why I am welcoming this Bill. It is one step forward to bring a uniform Bill like this. At present, there is no independent adjudicatory system to present a complaint. Therefore, this Bill has been brought forward on the lines of the CAT Act. Now, the Central Government employees are enjoying the benefits of the CAT Act. So, establishment of this Tribunal will also be on these lines.
Sir, I would like to make certain suggestions on the provisions of the Bill in order to have a correction and to make the Bill more efficient and effective. One, the preamble of the Bill says, "To provide for the adjudication or trial by Armed Forces Tribunal of disputes and complaints..." It is stated in the preamble that the Tribunal is an adjudicatory and appellant authority. My suggestion is, the word 'trial' may be removed from the preamble. Trial means a practice that is going on in the Army. My next suggestion is this. Again in the definition, the retired persons are not specifically defined here. It is not clear and specific. So, it should be specifically defined as to who would be the retired persons, as the retired persons include persons discharged, released and dismissed. So, my suggestion is, they may also be brought under the definition of retired persons. Sir, my next suggestion is, grievances relating to transfers, etc., may also be included in the Bill. It should come under the purview of the Tribunal because sometimes it may be done as a case of harassment. So, as a special case, it may be brought under the purview of the Tribunal.
Sir, my next suggestion is about the timeframe in regard to the disposal of appeals. My point is, the timeframe has not been fixed in the Bill. My suggestion is that it should be limited to six months; otherwise, the very aim of the Bill to establish the Tribunal will be defeated.
Sir, I would also like to say something about the qualifications for appointment of the Chairperson and other members. It has been mentioned in the Bill that the Chairperson should be a retired Supreme Court or High Court judge. This is all right. I welcome it. But, as regards the members, the Bill says, "A person shall not be qualified for appointment as an Administrative Member unless he has held or is holding the rank of Major General or above for a total period of at least three years in the Army or equivalent rank in the Navy or the Air Force." My suggestion is, one of the Administrative Members may also be from the judiciary. It is expected that by doing this justice will be done. The staff will be more confident and happier if the Members are especially from the judicial side. So, my request to the hon. Minister is that these suggestions may also be included in the Bill. With these suggestions, I once again welcome this Bill. Thank you, Sir. (Ends)
(Contd. by 4x-kgg)
SHRI N. JOTHI (TAMIL NADU): Sir, firstly, I would like to congratulate the Minister for having brought in this Bill after so many years. From 1982, I have been waiting. However, I feel, certain suggestions are really required which the hon. Minister and the officers would look into it. Sir, there are some anomalies which I want to point out. It is better before it goes to Lok Sabha that we look into them. I would start with clause 39. Clause 39 deals with the overriding effect of this Act on any other Act of this nature. Sir, you are very well aware that separate independent enactments for Army, Navy and Air Force are there. All the Acts do contain a provision wherein the fundamental rights guaranteed under Part-III of the Constitution of India are suspended. The fundamental rights are not available to the Armed Forces. It is available under article 33 of the Constitution itself. Article 33 says, "Parliament may, by law, restrict or abrogate the fundamental rights to armed forces in order to ensure proper discharge of their duty and maintenance of discipline amongst them."
Taking spirit from article 33, these 3 enactments --- Army Act, Navy Act and Air Force Act -- do contain a provision saying that fundamental rights are not available to them. If you make this Act, with clause 39, there will be a problem in courts. Kindly look into that. I suggest to the hon. Minister that clause 33 can be couched in such a way that the overriding effect provision will be subject to any enactment or any provision made by virtue of article 33. You must bring in the spirit of article 33 based on which the three enactments have been made which should be kept intact while you are dealing with clause 39. I think, I am a little clear on this.
In short, you shall not abrogate in such a way what was already available in the parent Acts, namely suspension of non-availability of the entire Part-III. Fundamental rights are not available to the Armed Forces. Please retain that in view of the discipline to be maintained. This is what I wanted to submit. Otherwise, if you pass this Bill, as it is, there would be arguments and counter-arguments in courts and that would be a problem and you would have to come with an amendment Bill thereafter. This is what I would like to submit.
Secondly, Sir, there is an anomaly regarding the service of the members. A Supreme Court judge retires at the age of 65. There is a four-year term available once a member is appointed, whether he is a principal member, a chairperson or other members. A four-year term is available for service. A Supreme Court judge retiring at the age of 65, added with four years, would be 69. You can go up to 70 years also according to this Bill. That way, he would complete his full-term whereas a High Court judge who is retiring at the age of 62, even if he is appointed as a member, cannot complete his full-term because he has to retire at the age of 65, as per this Bill. So, no High Court judge retired, or, even if he is appointed on the date of his retirement, can complete his full-term because he attains the age of 65 within three years. So, a four-year term advocated in this Bill, first of all, he cannot fulfil. Only the chairperson can fulfil it. This is the anomaly, Sir.
About administrative members, it is still worse! So, kindly look into this anomaly, where the completion of the term of four years is not possible with respect to members other than the chairperson. What you should say is, 'whichever is later'. The wording should be, instead of 65 years with respect to High Court judges, instead of 65 years with respect to administrative members, it should be a 4 year-term or 65 years, whichever is later. That way, they can complete a four-year full-term. This is what I wanted to suggest.
Then, coming to one important factor, I appeal to the hon. Minister as well as the officers who are here watching this, to look into an ordinary matter. If a man is arrested, and thereafter he spends 10 days or 20 days or one month in jail and trial takes place; after a year, the trial comes to the conclusion with a conviction of six months, the initial period of 15 days or 20 days or one month when he was in jail will be counted in his entirety of punishment period, the setoff will be given.
(Contd. by kls/4y)
SHRI N. JOTHI (CONTD): The correct terminology is setoff -- whereas
no such setoff is available to Army men, to Navy men or Air Force men. Even when a person is arrested and court
martial takes place and comes to the conclusion of one year, on a particular
period of three months after his arrest, the one year period does not setoff of
the three months for which he was already in quarter-guard. He has to continue one year period from the
date of judgement. Sir, this setoff is
not available to the Army people. Kindly
consider of bringing the normal procedure available through the Criminal
Procedure Code to Army men also, to people in Armed Forces also. Sir, I am saying that two judgements are
available, one Jesuratnam vs. Union of India,
delivered by the Delhi High Court and one T.S. Ramani
vs. Union of India delivered by the Madras High Court in
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): Your time is over. ...(Interruptions)... Mr. Jothi, your time is over. ...(Interruptions)...
SHRI N. JOTHI: Only two minutes. This important legislation is coming after so many years. ...(Interruptions)... Kindly bear with me. ...(Interruptions)... Sir, I was counsel for Army also for nine years that is why I am telling. Sir, coming to yet another point, I would request the hon. Minister to kindly look into clause 18. This clause speaks of awarding of cost. Hon. Chair can also look into clause 18. Suppose an Army personnel comes before this Tribunal and he loses his case, the cost can be awarded. Sir, I can understand this matter with respect to service matters but not on court martial matters. Normally in criminal matters when a person is appealing against his conviction, either his appeal will be dismissed or it will be allowed or it will be modified and no question of any cost is there for being awarded against him whereas this particular provision, clause 18 is Tribunal awarding cost and penalising the person for having the appeal before the Tribunal. That concerns with respect to civil matters, namely, promotion or other service matters not with respect to court martial. The court martial is as against punishment. So, do not penalise him further for having the appeal. For having the appeal and losing the case, by this he is already in difficulty. Do not add it to further by adding cost. Kindly delete the applicability of court martial cost, which is provided by means of clause 15, and cost is being awarded in clause 18. Clause 18 needs a re-look with respect to corresponding appeals with regard to clause 15. Sir, this is what I would like to submit to the hon. Minister.
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): Any other point. ....(Interruptions)...
SHRI N. JOTHI: Two more points only.
THE VICE-CHAIRMAN: Two more points! Only place the points.
SHRI N. JOTHI: Under clause 30 ...(Interruptions)... Narayanasamy Sir, please do not disturb me please. ...(Interruptions)... When the Minister is looking at me, please do not disturb him. ...(Interruptions)... Minister Sir, kindly look at me. ...(Interruptions)...
SHRI V. NARAYANASAMY: You kindly look at the Chair. ...(Interruptions)...
SHRI N. JOTHI: Sir, under clause 30 no appeal is permitted as against the interim order and I do not want to read it in order to save time. Appeal can be permitted to Supreme Court only against final orders not against interim orders. It is again a problem because there are so many interim orders, which are worse than the final orders. So, kindly delete this. It is left to the Supreme Court to look into whether it is interim order or final order or they need not entertain it. Why do you worry about that? So, as against interim order also, let the person appeal to the Supreme Court, it is the concern of the Supreme Court and it is not your concern. (Contd by 4Z)
SHRI N. JOTHI (CONTD.): So, Supreme Court may either entertain it or throw it out. So, kindly delete, "there shall be no appeal as against interrogatory order". Kindly delete that provision. I humbly request you because the appeal provision is left to the Supreme Court. The Supreme Court will decide whether to entertain that matter or not to entertain. So, don't say, 'don't go there.' It is left to him to go there, to be entertained or not to be entertained. Don't be afraid of any appeals. When once you say, 'there can be an appeal to the Supreme Court' please allow him to go as against final order or against an interim order. So let the matter be left to that stage. Sir, only two minutes.
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): Another two? This is the problem with a lawyer who speaks on a tribunal matter.
SHRI N. JOTHI: Please, Sir, only two minutes. Sir, in respect of tribunal matters going straightaway to the Supreme Court by way of an appeal, there is a problem. The problem is this: Sir, in cases where the Chairperson himself is a party to the Bench because the Chairperson is always a Supreme Court judge or the Chief Justice. But, you are enabling other benches also to function with High Court judges. If you make it compulsory that all appeals would lead to the Supreme Court, then, Supreme Court will be further burdened. Sir, already in Chandra Kumar versus Union of India case, a judgment was delivered by the Supreme Court that a tribunal is a tribunal amenable to the jurisdiction of the High Court under article 227 of the Constitution of India. So, hon. Minister you can think about those matters. Any appeal in which the Chairperson is not a party can go to the bench of the High Court itself. Why do you burden the Supreme Court? If a Chairperson is not a party to the bench on deciding the issue, then, the decision with respect to the bench can go to the High Court itself consisting of a division bench minimum. This is the spirit of Chandra Kumar case. Sir, kindly look into that. Don't drive everybody to the Supreme Court. Have a parallel jurisdiction to the High Court also.
THE VICE-CHAIRMAN: Mr. Jothi, you have spoken for eleven minutes. Your time was only for five minutes.
SHRI N. JOTHI: Sir, I am coming to the last point. Sir, do not bring this Act, notifying it
without the rules being framed properly and placed on the table of the House
and approval is given. There are problems in making the notification of the Act
first and rules coming thereafter.
Kindly bring everything together only.
Finally, after Administrative Tribunal Act, 1985 came into force; a lot
of indiscipline has come among Government servants. This is the experience of Tamil Nadu
Administrative Tribunal. This is the
same situation with respect to all over
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THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): Next speaker is Smt. N.P. Durga. You have three minutes.
SHRIMATI N.P. DURGA (ANDHRA PRADESH): Sir, I welcome the Bill which seeks to...
SHRI V. NARAYANASAMY: Be brief.
SHRIMATI N.P. DURGA: I am a lady Member. The Chair is always more considerate towards women Members.
...establish an Armed Forces Tribunal to adjudicate and give quick relief on disputes relating to promotion, pension and verdicts of courts-martial of members of the three Forces of the country. This gives one more opportunity for armed personnel to appeal against the courts-martial, which, sometime, criticized for either giving harsh penalty or showing discrimination. The proposed move, I am sure, will breathe in a new life into the military justice system. The Parliament should have passed this legislation long back. But, the problem with our political system is that it will not accede to the requests made either by the sufferers or by the public representatives, unless some 'superpower' pokes it to do or directs it to do. In the same way, the present decision of the Government to form the tribunal is not the decision of the Government or has been acceded to the request of armed forces personnel or the public representatives, but is based on a Supreme Court directive to set up such a body. Sir, in 1983, consequent to the decision of the Supreme Court in Lt Col PP Singh case, the service headquarters were asked to examine the need for the constitution of a Court-Martial Appeals Court. The issue remained dormant for almost ten years. In 1992, the Army Act was amended but the Government did not consider the recommendation of the Supreme Court relating to an appellate court. The Estimates Committee of the Parliament in 1992 desired that the Government should constitute an independent statutory body or tribunal for Service personnel. It is only then, the proposal has gained some momentum.
Sir, at present, over 9,500 appeals filed by Armed Forces personnel are pending in various high courts and 125 applications are pending before the Supreme Court. I am confident that once the Armed Forces Tribunal is set up, all cases pending before High Court and the Supreme Court will be transferred to it and will be disposed of quickly.
There is no doubt that law should be strict enough to enforce discipline, but, at the same time, it should not be so oppressive as to have a demoralising effect on the soldier. There is also a need to revise the relevant service Acts immediately so that revised common Acts could be in place before the establishment of the armed forces tribunal. Otherwise, the purpose of establishment of Armed Forces Tribunal becomes redundant.
Sir, the first point I wish to make is, now, the incidents
of terrorism in the country are rising like anything. There is a need to contain this menace. Otherwise, it will not only ruin the country
but also disturbs the secular fabric of the country by creating a rift between
some sections of the community which is more dangerous than terrorism. The other problem is, in view of cases of
terrorism being tried by regular courts, there is an enormous delay in getting
the final judgment. So, why cannot the Ministry think of permitting all the
cases of terrorism by the proposed Tribunals, so that trial is completed
quickly and the culprits are punished. This move will also work as deterrent to
terrorists. And, more over, the appeals
from this Tribunal lie only to the Supreme Court, unlike the existing procedure
where the case starts from the trial court and has to cross the barriers of
various courts and benches and finally to the Supreme Court. Even in the
Sir, the next point I wish to make is, under Clause 5, you
are setting up Benches of Tribunal. But,
you have not specified where these Benches would be situated. Sub-Clause (4) of the Bill says that Benches
would sit at
Sir, the next point I wish to make is that the moment this Bill is notified does not mean that the person aggrieved by an order pertaining to any service matter may make an application to the tribunal to redress his grievance. Clause 21 of the Bill says Tribunal will not admit application unless all the avenues are exhausted under relevant Sections of the Army Act, 1950, Navy Act, 1957, and the Air Force Act, 1950, are exhausted. So, first, these Acts have to be amended, because the aggrieved person has to exhaust all the avenues available to him under these Acts. So, it would have been better if the Minister has brought both these together and pass them together so that all will be notified and the spirit of amendment is fulfilled.
The last point I wish to make is that there is no limit for Tribunal to adjudicate an application. The final outcome of any adjudication is at the sweet will of the Tribunal. I think, this is not fair and there must be some limitation with regard to pronouncement of judgment. Sir, even the Standing Committee has recommended that six months time-limitation should be kept within which the Tribunal has to give its verdict. Nothing of that sort has been mentioned in the Bill. So, I would like to know from the hon. Minister what are the reasons for not accepting this recommendation of the Standing Committee. I want that this limitation be included in the Bill so that adjudication becomes faster and quick.
With these few point, I support this Bill. Thank you.
(FOLLOWED BY USY "5B")
SHRIMATI PREMA CARIAPPA (KARNATAKA): Thank you very much, Sir, for having given me an opportunity to speak on the Armed Forces Tribunal Bill, 2005.
I rise to support the Bill. Our utmost priority is the well being of our Armed Forces. They are guarding our frontiers and we must see that they do not have any problems. One important area is the pending court cases relating to their service matters, we must ensure that they get speedy justice. A large number of cases, relating to service matters of the members of Armed Forces have been pending in the courts for a long time. As many as 125 cases were pending in the Supreme Court and nearly 9000 cases were pending in High Courts as on 31st October, 2005. This Bill seeks to establish an Armed Force Tribunal to adjudicate on disputes, relating to service matters and appeal, arising out of verdicts of courts -- martial of members of the three forces.
Establishment of an independent Armed Forces Tribunal will strengthen the trust and confidence amongst the members of three services in the system of dispensation of justice in relation to their services matters.
The Standing Committee on Defence have already gone through the Bill and submitted their report. It is good that no civil court shall exercise jurisdiction of service matters falling within the jurisdiction of the Tribunal and alls pending cases shall be transferred to the Tribunal, once it is established. The Tribunal would function on the lines of the Central Administrative Tribunal (CAT).
Both, the Law Commission and the Supreme Court, have already emphasised the need for setting up an independent adjudicatory forum for defence personnel.
With this, I support the Armed Forces Tribunal Bill, 2005.
(Followed by 5c -- VP)
SHRI RAJEEV CHANDRASEKHAR (KARNATAKA): Sir, I thank you for giving me this opportunity to speak on the Armed Forces Tribunal Bill, 2005.
Sir, as my senior colleague on the right said, the Armed Forces are one of the highly respected institutions of our country. We all recognise that. They are respected for demonstrating abilities of professionalism and patriotism. Indians today, from all walks of life, remain inspired by the stories of valour and unflinching patriotism demonstrated by many personnel of the Armed Forces. Sir, I am myself the son of an Air Force Officer. I believe it is our duty to do whatever we can to continue, to sustain the dignity of the Services and of the men and women who serve in it.
Sir, while the Armed Forces remain a professional and committed family of men and women, it is inevitable that there would be disputes and issues that need resolution. So far, these disputes were being settled within their respective Services. In recent times, there have been increasing instances where its personnel have been dissatisfied with the internal disputes or the legal processes, and have chosen to appeal to High Courts.
This Bill aims at creating a smoother, quicker, and a more dignified way of adjudicating these appeals; and I welcome it wholeheartedly. I completely and wholeheartedly support the objectives of the Bill. I only wish, as my colleagues have also mentioned, this Bill ought not to have taken two years to pass, especially, when there are so many similar other tribunals that have been enacted through Parliament. I would urge, through you, Sir, the Parliament and the Government that the Bills that deal with the issues of the Armed Forces and other Services are focussed on with more urgency so that we don't subject them to such delays in the future.
Sir, the objectives of the Bill and the Tribunal are two-fold. One is to expedite the adjudication of appeals, and the second is to create a bench that understands better the nuances of disputes arising in the Armed Forces because they are usually very different from the normal civil, criminal or contractual disputes that crowd our courts.
Sir, for these two objectives to be realised, the main issues will be that of the people who make up the Tribunal, the capability and capacity that is built into the Secretariat and its infrastructure in order to handle the necessary volumes of cases to ensure speedy disposal.
Sir, we all know and our experience with some other tribunals or regulators, formed by Parliament with strong support in law, has been less than stellar. I believe the main reason has been the lack of focus on these practical issues.
Therefore, Sir, may I recommend, through you, to the Minister three specific points in connection with the operationalisation of this Bill. Firstly, Sir, I seek assurances from the Minister that he will staff the Tribunal and the Secretariat with only the most capable and committed people. I also seek an assurance from the Minister that this Tribunal will not be another parking place for political favourites or retirees looking for a relaxed place of work. Additionally, I would urge him to make an amendment in Section 6(1) that the Chairman of the Tribunal could also be a retired Chief of one of the Services, subject to one of the members being a retired Justice. This will help achieve the objective of section 4 of the Objects and Reasons of the Bill, that is, of fortifying the trust and confidence of the Armed Forces in this Tribunal. I also believe, Sir, that this is a very practical suggestion since the appeal of this Tribunal will, eventually, anyway, lie in the Supreme Court. I further second my senior colleagues suggestion that consultation with the Chiefs should be mandatory under this Bill for selecting the administrative members of the Tribunal.
I urge the Minister to ensure that the Secretariat, its infrastructure capacity and its budget for this Tribunal are planned at this stage itself. That should be large and significant enough to handle the large number of cases that are already existing, and those that will arise, so that there are no people or infrastructure-related capacity constraints that come in the way of ensuring that the adjudicatory work of the Tribunal is expeditious.
Sir, the last point is this. I would recommend that for the first one or two years of the Tribunal, the Ministry tracks the performance and operations of the Tribunal from a point of view of pro-actively working towards ensuring its speedy and smooth operationalisation.
Let me end by saying again that I support this Bill completely and wholeheartedly, and hope that the Minister will take note of my suggestions. Thank you, Sir. (Ends)
THE MINISTER OF DEFENCE (SHRI
That apart, coming to the Bill, at present, nearly 12,000 cases are pending in the Supreme Court and various High Courts of the country. Every year, cases are piling up. The available remedy, at the moment, is administrative remedy, either from the Government, or, mainly, from the services themselves. So, every year, the number of cases is increasing; that is why, of course, I agree, not only at the initiative of the Government, but after the intervention of the Supreme Court we decided to bring forward this Bill. Many hon. Members, while participating in the debate, gave very valuable suggestions.
(Contd. by 5E/SKC)
Some hon. Members, while supporting the Bill, had raised issues about some malpractice in the Armed Forces and also about the rising cases of accretion, suicide and other things. When we talk of accretion, we must look around us. If we compare the pay packets that we are now giving to the Armed Forces with equally qualified persons outside, we find that there is no comparison. There was a time when joining the Armed Forces was a matter of pride for the younger generation. That feeling is gradually declining. Joining the Armed Forces is no more the first choice of our younger generation. We need to address this issue. The most important thing to do now is to give them better pay packets. I hope the present Pay Commission will do justice to the Armed Forces.
Secondly, suicide and other such incidents are tragic. But, of late, we have been able to arrest this tendency. I won't say that we have done away with suicides completely, but we are gradually arresting the incidence. One of the major reasons for this suicidal tendency among them is, distance from their families. They operate in difficult terrains, thousands of miles away from their families. They are always worried about their families. There was a time when even though the Armed Forces personnel were far away, at the frontiers, the State Governments and District Administration used to take interest in redressing the genuine grievances facing their families. Now, that kind of attention is not being paid. The Union Government and State Governments must together resort to that practice of the olden days and the families of the Armed Forces must be given priority in finding solutions to their immediate problems.
There are other issues also. We advise the officers repeatedly saying that they should set better examples, they should look after the jawans and pay proper attention to their grievances and wherever possible, redress those grievances. From the Government side also, we have taken certain minor steps. We have increased their number of leaves; previously, they were being given two days' leave, now we have increased it to three. We have increased it to two where it was one previously. In the same way, we have tried to make some other improvements. We are constantly trying to improve their living conditions in their barracks in areas where they are operating. Thus, we are trying our best.
I am sure, this tribunal, when operationalised, would go a long way in reducing the number of court cases and they will be able to find a solution to some of their major grievances. Some of the hon. Members spoke about consulting the Service Chiefs in this regard. Actually, our idea is to make it an independent body because after all, this tribunal is meant to give redressal of problems arising out of the decisions given by the Services, such as court martial; it is for a summary trial. So, we thought, unless we have an independent tribunal, it won't be able to give people confidence about its impartiality. So, not only are we not involving the Service Chiefs in this, but also the Government cannot unilaterally appoint a retired Chief Justice or Supreme Court Judge.
(Contd. by 5f/hk)
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): The question is:
That the Bill to provide for the adjudication or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 and also to provide for appeals arising out of orders, findings or sentences of courts-martial held under the said Acts and for matters connected therewith or incidental thereto, be taken into consideration.
The motion was adopted.
THE VICE-CHAIRMAN: Now, we shall take up clause-by-clause consideration of the Bill.
Clause 2 was added to the Bill.
THE VICE-CHAIRMAN: Now, we shall take up clause 3. In clause 3, there are four amendments (Nos.3 to 6) by the hon. Minister.
CLAUSE 3 -- DEFINITIONS
3. That at page 2, line 16, after the words and figure "Navy Act, 1957", the words "including the disciplinary courts constituted under the Act" be inserted.
4. That at page 2, for lines 37 and 38, the following be substituted, namely:-
"(iii) summary disposal and trials where the punishment of dismissal is awarded"
5. That at page 3, line 1, for the bracket and roman numeral "(v)" the bracket and roman numeral "(iv)" be substituted.
6. That at page 3, for lines 5 and 6, the following be substituted, namely:-
46 of 1950
62 of 1957
45 of 1950
"(ii) transfers and postings including change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950;
(iii) leave of any kind;
(iv) Summary Court Martial except where the punishment is of dismissal or imprisonment for more than three months."
The questions were put and the motions were adopted.
Clause 3, as amended, was added to the Bill.
(Followed by 5g/KSK)
Clauses 4 and 5 were added to the Bill.
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): Now, we shall take up clause 6. There are three amendments no. 7-9. Hon. Minister to move the amendments.
CLAUSE 6 - QUALIFICATIONS FOR APPOINTMENT OF
CHAIRPERSON AND OTHER MEMBERS
That at page 3, for lines 37 and 38, the following be substituted, namely:-
"(2) A person shall not be qualified for appointment as a Judicial Member unless he is or has been a Judge of a High Court."
That at page 4, lines 1 to 6 be deleted.
That at page 4, for lines 7 to 9, the following be substituted, namely:-
"3. A person shall not be qualified for appointment as an Administrative Member unless-
(a) he has held or has been holding the rank of Major General or above for a total period of at least three years in the Army or equivalent rank in the Navy or the Air Force;
(b) he has served for not less than one year as Judge Advocate General in the Army or the Navy or the Air Force, and is not below the rank of Major General, Commodore and Air Commodore respectively."
The questions were put and the motions were adopted.
Clause 6, as amended, was added to the Bill.
Clause 7 was added to the Bill.
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): Now, we shall take up clause 8. There is one amendment no. 10. Hon. Minister to move the amendment.
CLAUSE 8 - TERM OF OFFICE
That at page 4, for lines 18 and 19, the following be substituted, namely:-
"8. The Chairperson or a Member shall hold office for a term of four years from the date on which he enters upon his office and shall be eligible for re-appointment."
The question was put and the motion was adopted.
Clause 8, as amended, was added to the Bill
Clauses 9 to 43 were added to the Bill
THE VICE-CHAIRMAN (SHRI PRASANTA CHATTERJEE): Now, we shall take up clause 1. There is one amendment no. 2. Hon. Minister to move the amendment.
CLAUSE 1 - SHORT TITLE AND COMMENCEMENT
That at page 1, line 4, for the figure "2005" the figure "2007" be substituted.
The question was put and the motion was adopted.
Clause 1, as amended, was added to the Bill.
THE VICE-CHAIRMAN: Now, we shall take up the Enacting Formula. There is one amendment no. 1. Hon. Minister to move the amendment.
That at page 1, line 1, for the word "Fifty-sixth", the word "Fifty-eighth" be substituted.
The question was put and the motion was adopted.
The Enacting Formula, as amended, was added to the Bill
The title was added to the Bill
That the Bill, as amended, be passed.
The question was put and the motion was adopted.
VICE-CHAIRMAN: The House is
The House then adjourned at thirty-three minutes past
seven of the clock till eleven of the clock on
Tuesday, the 4th December, 2007.