The Supreme Court and Judicial Legislation: The Case of the Armed Forces Grievance Redressal Commission

“Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors…  Recently, the Courts have apparently, if not clearly, strayed into the executive domain or in matters of policy. For instance, the orders passed by the High Court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorized schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhities breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines etc. In our opinion these were matters pertaining exclusively to the executive or legislative domain. If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it.”

So said Justice Katju in Divisional Manager, Aravali Golf v. Chander Hass, in  judgment dated 6^th December, 2007: (2007) 14 SCALE 1: (2008) 1 SCC 683. In that same judgment, in a paragraph later approved in Official Liquidator v. Dayanand, a three judge Bench, it was stated, “The court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organisation. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and the first appellate court to create the posts of tractor driver and regularise the services of the respondents against the said posts cannot be sustained and are hereby set aside.”

Given this backdrop, and the discussions in Aravali in Justice Katju’s judgment, it is surprising that the same Hon’ble Judge thought it fit to direct the Executive to issue a notification to create an Armed Forces Grievance Redressal Commission. In a judgment in Pushpa Vanti v. Union of India [W.P. (Civil) No. 291 of 2010, order dated 15^th November, 2010] which cites no Article of the Constitution (there is no reference even to that repository of all rights, Article 21) and no statutory provision, a Bench of Justice Katju and Justice Misra stated, in detailed observations which I reproduce below:

6. In a recent panel discussion `We The People’ on NDTV channel some of these grievances (of Armed Forces personnel) were highlighted.  

7. Our courts of law are flooded with cases relating to members, both serving and retired, of the armed forces e.g. cases relating to pension, promotion, etc and the obvious reason is that the armed forces personnel have a feeling that their grievances are not being properly addressed.

8. The great Prime Minister of Magadha, Chanakya, told Emperor Chandragupta Maurya: “Pataliputra rests each night in peaceful comfort, O King, secure in the belief that the distant borders of Magadha are inviolate and the interiors are safe and secure, thanks only to the Mauryan Army standing vigil with naked swords and eyes peeled for action, day and night, in weather fair and foul, all eight praharas (i.e. round the clock), quite unmindful of personal discomfort and hardship, all through the year, year after year. To this man, O Rajadhiraja, you owe a debt: please, therefore, see to it, suo motu, that the soldier continuously gets his dues in every form and respect, be they his needs or his wants, for he is not likely to ask for them himself. The day the soldier has to demand his dues will be a sad day for Magadha; for then, on that day, you will have lost all moral sanction to be king!” 

9. Today our ex-soldiers have not only been demanding but are agitating to get their legitimate dues… The armed forces personnel should have a feeling that their grievances are heard by an independent body.  Even if some of their demands are not accepted, they will have a feeling that they were given a proper hearing.

10. We, therefore, direct the Central Government to set up within two months from today a Commission which shall be called the Armed Forces Grievances Redressal Commission.

11. This Commission will look into any grievances (sent to them in writing or by e-mail) by serving or former members of the armed forces (i.e. Army, Navy and Air Force) or their widows or family members and make suitable recommendations expeditiously to the Central Government in this connection. 

12. The Commission will also frame and recommend to the Central Government a scheme for proper rehabilitation of discharged soldiers.  At present the position is that a soldier is ordinarily recruited at the age of about 18 years, and if he does not rise above the rank of Jawan he is discharged after 15 years of service.  If he is promoted, his tenure is extended on each promotion.  Thus, if he reaches the rank of Havildar but no further he will retire after 22 years of service, i.e. at the age of 40.  Thus a soldier is retired when he is in the prime of life.  During his service he spends only about 2 months per year with his family.  There is no doubt a Resettlement Directorate in the Army Headquarters, but we are informed that it is not a very effective body. If a soldier is discharged between the age of 35-45  how will he support his family?  At that age he is likely to have a wife and children.  Hence he should be given alternative employment so that he can support his family.  The Commission will go into this matter also in detail and suggest appropriate schemes for rehabilitation of ex-armed forces personnel who are retired at a relatively young age.

13. The aforesaid Commission shall consist of the following members:

A retired Judge of the Supreme Court of India as the Chairman of the Commission. The   first   Chairman   shall  be  Hon’ble Mr. Justice  Kuldip Singh, former Judge, Supreme Court.

A former Chief Justice of the High Court as the Vice Chairman of the Commission.  The Vice Chairman will officiate as the Chairman in absence of the Chairman.

The   first   Vice  Chairman    shall   be  Hon’ble  Mr.   Justice  S.S.  Sodhi,  retired  Chief  Justice   of   the  Allahabad High Court.

A retired Chief of Army staff as a Member of the Commission. We  appoint  General  V.P.  Malik,  retired  Chief  of Army staff, to be a Member of the Commission.

Any retired Chief or Vice Chief or Deputy Chief of the Army, Navy or Air Force as a Member of the Commission. In the first Commission we appoint Lt. General Vijay Oberoi,  retired  Vice  Chief  of  Army  Staff,   to   be a Member of the Commission(General Oberoi is the Douglas Bader of the Indian Armed Forces, his one foot having been shot and later amputated due to a burst of machine gun fire in the 1965 Indo-Pak war, when he was a young Captain.  Despite this he rose to become a Lt. General and Vice Chief of the Army).

A civil servant, whether serving or retired, as a Member of the Commission, to be appointed by the Central Government, at its discretion.

14. The term of the first Commission will be for two years from the date of its constitution but it will be renewable at the option of the Central Government.  The subsequent Commission members (after the two year term of the first Commission has expired) shall be appointed by the Central Government.

15. Since most of the aforesaid members in the first Commission are based in Chandigarh hence we direct that the headquarters of the Commission shall be at Chandigarh.  For this purpose a suitable building will be allotted at the earliest at Chandigarh by the Union Territory of Chandigarh in consultation with the Central Government which will be used as the office-cum-secretariat of the Commission.  This building must have sufficient rooms to provide an office for each member of the Commission.  The Central Government will allot adequate secretarial and other staff and infrastructure and equipment (including computers, telephones etc.) for the office and members of the Commission as desired by the Chairman.

16. In addition to the headquarters of the Commission at Chandigarh there will also be set-up offices of the Commission at Delhi and such other places as the Chairman of the Commission may direct. The Central Government and concerned State Governments/Union Territories will provide the necessary staff and infrastructure as the Chairman may direct for this purpose.

17. All the members of the Commission shall sit together whenever issues of general importance are to be considered.  However, in any matter relating to individuals or a few persons only the Chairman can appoint a smaller Committee consisting of one or more members as he decides.

18. The first four members of the Commission will be given the same salaries, benefits and allowances which they were getting on the last day when they were in service.  They will also be given traveling and such other allowances as the Chairman decides if they have to travel to other places away from Chandigarh.  The fifth member, if a retired person, will also get the same.

…

20. We further direct all authorities in India, Civil or Military (including the Secretary, Defence, Union of India, and the Chiefs of the Army, Navy and Air Staffs) to extend all cooperation to the Commission to enable it to discharge its functions effectively.

21. The notification constituting the Commission as provided above will be issued by the Central government forthwith. 

22. The claim of the petitioner in this case shall stand referred to the Commission.  The Registry of this Court shall send copies of the papers of this case forthwith to the members of the Commission nominated by us, and the petitioner’s claim shall be considered expeditiously.  Claims of other armed forces personnel (serving or retired) should also be considered expeditiously.

23. List this case again on 7.2.2011.

The Court also stated that the directions of the Commission will recommendatory in nature but will be entitled to “due weight”. It appears that the law of the land is that the Supreme Court cannot direct creation of additional posts, but can direct the setting up of a Commission, can specify its term, membership, seat, conditions of service etc. And surprisingly, the claim of the Petitioner in the case – when the Petitioner had a right under Article 32 of the Constitution to judicial remedies by the Supreme Court – will now be heard by a non-judicial, recommendatory body. With respect, the jurisprudence of the Supreme Court on its powers qua the executive/legislature continues to be as unclear as ever.