Indian Military : Service Benefits and Issues

Time 2020-12-17 14:05:10

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Feel free to contribute on burning issues concerning the armed forces. Contributions would be acknowledged - Use the 'Comments' tab or email navdeepsingh.india[at]gmail.com. No operational/business/commercial matters to be discussed please. Legal advice/litigation related issues would strictly NOT be published or discussed or entertained. Information on this blog is opinion based and is neither official nor in the form of an advice. This is a pro bono online journal in public service related to issues, policies and benefits, and the idea behind it is to educate and not to create controversy or to incite. Be soft in your language, respect Copyrights.One of the lesser realised aftershocks of theEmergency was tribunalisation as it exists today. A blow so hard that despitemultiple efforts by our High Courts and the Supreme Court, includingConstitution Benches, to wipe out the deleterious consequences, the ruinousscars remain. Tribunals in the present form were introducedthrough the 42nd Constitutional Amendment when the concept was employedas a tool by the executive of the day to blunt-out judicial functioning and itwas probably thought that by creating such bodies some of the subjects oflitigation could be taken out of the purview of the independent judiciary withthe said bodies functioning under and manned by the executive. Though theSupreme Court put its judicial weight against such blatant attempts throughvarious landmark decisions such asRK JainVs Union of India1993 AIR 1769, L Chandra Kumar Vs Unionof India (1997) 3 SCC 26, Union ofIndia Vs R Gandhi (2010) 11 SCC 1, MadrasBar Association Vs Union of India (2014) 10 SCC 1 and Rojer Mathew Vs South Indian Bank Limited 2019SCC Online SC 1456, yet, despite such heavy dicta favouring independence oftribunals and streamlining of their functioning, the practical situationremains almost the same as it did without these judicial milestones.In the latest Constitution Bench decision in RojerMathew (supra), the Supreme Court set aside the Tribunal, Appellate Tribunal and other Authorities (Qualifications,Experience and other Conditions of Service of Members) Rules, 2017 promulgated by theGovernment which gave the Government unbridled power in the functioning andcontrol of tribunals. The Court directed the Government to institute freshrules in line with its decisions pertaining to independence of tribunals. Newrules were then framed earlier this year by the Central Government but thesecarry out only superficial changes to the earlier rules and directly contravenelaw laid down by the Supreme Court. Let us scan a few examples. The new rules do not correct the currentdispensation of tribunals functioning under parent administrative ministriesagainst which they have to pass orders. This contravenes the Seven Judge Benchdecision in L Chandra Kumar as well as the Five Judge Bench in RGandhi wherein it was held that tribunals must not function under theministries against which they have to pass orders and neither should theMembers be granted facilities by such ministries. Hence, for example, the ArmedForces Tribunal today functions under the Ministry of Defence which is thefirst party in all litigation before it and against which it has to pass allorders. But reflecting a complete conflict of interest, the Ministry alsohappens to control its infrastructure, finances and staffing. Ditto is the casewith the National Green Tribunal and other tribunals which have to pass ordersagainst the Government and its instrumentalities. To top it all, complaintsagainst Members of tribunals are also to be routed through the same Ministries.Even if it is taken only as a perception, the visible and invisible strings insuch a scenario and the impact on the psyche of litigants can hardly beignored.The new rules also provide for the Secretaryof the Ministry/Department to sit in the Selection Committee for Members oftribunals. Therefore, the person against whom orders are to be passed, alsoselects his/her adjudicators. This arrangement was deprecated and called mockery of the Constitution in Madras Bar Association. In fact, theSelection Committee has been incorporated in such a manner that it can functioneven in the absence of judicial representation whereas the Supreme Court has repeatedlycalled for primacy to judicial representatives in such selections. In R Gandhi, the Constitution Bench hadcalled for a minimum tenure of 5 to 7 years for Members of tribunals, howeverunder the new rules, the tenure prescribed is 4 years with an upper age of 65years, which also is theoretical. In case a retired High Court Judge is to beappointed, he or she gets a maximum of 3 years in chair since the retirementfrom the High Court is at 62 years. Practically, the tenure would be evenlesser since only in rare circumstances is a Judge appointed soon afterretirement. In such a situation, the non-judicial members get a longer tenure incomparison since they join tribunals at an earlier age. Interestingly, underthese rules, the prohibition imposed on Members for further employment with theState and Central Governments has been removed. Again in R Gandhi, vague qualificationcriterion for Members such as experience in economics, business, commerce,finance, management etc was eschewed and struck down. Still, in the new rules,the said criterion has strangely again been introduced for tribunals such asthe Armed Forces Tribunal and the TDSAT, the logic and legality both of whichis suspect. For efficient delivery of justice, tribunalscannot function as stand-alone entities in vacuum without being configured withan efficient countrywide justice delivery system and our Constitutional Courts.Time and again the Supreme Court has emphasized on reducing the burden on thehighest Court of the land but there seems to be no end to routine, innocuousand sometimes frivolous litigation reaching its gates. A Constitution Bench in BiharLegal Service Society Vs Chief Justice of India 1987 AIR 38hadobserved that the Supreme Court was only meant for exceptional cases and inmost matters the High Court must remain the final arbiter. It was repeatedthereafter in many decisions that the highest Court of the land must onlyinterfere in Constitutional matters of general public importance or ones with panIndia implication, however the Court is on the contrary burdened by mundaneappeals and issues such as consumer and matrimonial disputes and direct appealsfrom tribunals which should not otherwise find themselves at the entranceinvoking the majesty of the highest Court of the largest democracy. Today, theterm Special in Special Leave Petition itself has become almost otiose andredundant. Even otherwise, access to the Supreme Court remains difficult and unaffordablefor most litigants as also observed in RK Jain, L Chandra Kumar andrecently again in Rojer Mathew. There could be a few suggested practical solutionsto the conundrum:(a) In line with theoriginal thought behind the availability of Special Leave to Appeal under Article136, the matters reaching the Supreme Court by their very nature must be veryrare, involving points of law of general public importance or interpretation ofthe Constitution, pan nation implication or where there is a major conflict ona point of law between two or more High Courts. The Division Benches of the jurisdictionalHigh Court, an equally efficacious Constitutional Court, must be the finalarbiter as observed in Bihar Legal Service Society, LChandra Kumar and Rojer Mathew. Of course, jurisdictionssuch as the exclusive and advisory jurisdiction of the Supreme Court cannot beexercised by any other Court. (b) Tribunals mustfunction only under the Ministry of Law Justice and not under parent administrativeministries and with the best possible facilities to Members to attract theoptimum talent, with a sufficiently long tenure and under the aegis of an overarchingbody such as the National Tribunals Commission as suggested by jurists like MrArvind Datar and also observed by Justice DY Chandrachud and Justice DeepakGupta in their separate observations in Rojer Mathew. The Income TaxAppellate Tribunal is a shining and successful example of a Tribunal functioningunder the Ministry of Law Justice. (c) Excessivetribunalisation must be avoided except in highly technical areas sincelitigants are known to express more faith in the regular judiciary. Wheneverinstituted, tribunals must not be laden with vague eligibility criteria such asexperience in economics, business, commerce, finance, management etc therebymaking all and sundry eligible. Rather than creating more tribunals, the HighCourts need to be strengthened. Giving stable rosters to High Court Judges canalso bring in more understanding in various specialised branches of law. (d) Tribunals can alsobe created within the regular judicial system with existing judges since thereis a view prevalent, and not without valid basis, that non-judicial experts appointed as Members carry over to the tribunal with them a certain over-familiaritywith the subjects which can breed subjectivity. Calling specialized bodies acause of decadence and decay, American jurist Judge Simon Rifkind, way back in1951, stated that it intensifies the seclusion of that branch of law andfurther immunizes it against the refreshment of new ideas, suggestions,adjustments and compromises which constitute the very tissue of any livingsystem of law . There is yet another reason for the regular Court system beingmore robust, and that is that Courts never stop functioning even when facingcritical shortage of judges, while tribunals and other quasi-judicial bodiescome to a complete standstill because of non-appointment of Members or retirements.Interestingly, in certain classes of litigation, the pendency has ratherincreased after creation of tribunals. (e) Widening of theintra-court appellate jurisdiction of the High Courts for appeals from Single Benchdecisions to Division Benches, thereby giving finality within the same HighCourt in more subject matters, must be given due thought so as to provide anaffordable and accessible remedy and to unburden the Supreme Court fromhackneyed cases. This could be more practical than deliberating upon a Courtof Appeal sandwiched between High Courts and the Supreme Court. The issues concerning tribunalisation andinterconnected delivery of justice are not ones which cannot be tackled. It seemsthat though the political will to harmonise these issues was never lacking, dueto some reason or the other, and want of consensus amongst stakeholders includingopposition by various ministries, we remain stuck in a whirlwind of total chaos.As back as on 2nd August 2001, the then Law Minister, late Mr ArunJaitley, had stated in Parliament that the Government was moving towards implementationof the decision in L Chandra Kumar by creating a separate Central TribunalsDivision. Something that has not fructified. More recently, the current Law Ministerhad also appreciably alluded to the decisions of the Supreme Court dealing withtribunals in his opinion piece for the Indian Express on 20th April2017. The Prime Minister had also red-flagged issues related to tribunals in aspeech rendered on 4th April 2015.With the political executive having shown itswillingness to tackle these vexed issues, and on the strength of existing dictaof the Supreme Court, there should be no reason why these matters should not beresolved to the full satisfaction of all stakeholders, including the litigatingpublic, at the earliest. It would rather be in the fitness of things to robustlyoverrule opposing voices that are not letting the vision of the politicalexecutive, the spirit of the Constitution and the decisions of Constitutional Courtstake full effect and shape. -----JusticeVirender Singh is Former Chief Justice, High Court of Jharkhand FormerChairperson, Armed Forces Tribunal.MajorNavdeep Singh is a lawyer at the Punjab Haryana High Court Member of the InternationalSociety of Military Law and the Law of War.Lt Gen Satish Dua and I have co-authored thisopinion piece for The Sunday Guardian where we argue why the term martyr isnot appropriate for fallen soldiers, and in fact it is unsoldierly. The op-edcan be accessed here at the official website of The Sunday Guardian. MILITARYPENSIONS:Commentary, Case Law Provisionsis a treatisecontaining easy-to-understand commentary on various types and modalities ofpension with the law governing the subject and a range of applicable policies,rules and official letters, including some rarely available ones.Instead of publishing ThreeVolumes on Paperback, we decided to have it all in one big volume. It isalarge format Hardcover ReferenceBookwith 33 Chapters covering the length and breadth of the subject.More details of the book are available atwww.navdeep.infoThe book has beensoft-launched and isnow available for order/pre-orderathttps://notionpress.com/read/military-pensions(Usethe Coupon CodeVICTORYfor limited period launch discount). You mayorder it now and the book shall be delivered soon after deliveries arepermitted to commence by the Government.A formal global launch withavailability on all channels shall be initiated soon, in better times, afterthe lockdown is lifted.The Reference Book is pricedat Rs 1299/- and is available at 15%limited period discountasabove.Part of the proceeds shallgo towardsmilitaryveteran welfare.My opinion piece for The Asian Age (23rd Feb 2020) on women in the military, in the backdropof the Supreme Court decision on the subject:Won tbe talking point a few years down the lineConstitutional Courts propel equality in themilitaryNavdeep Singh The decision of the Supreme Court of Indiagranting women the same career progression as men in the Indian Army, hasgenerated quite a debate. The Apex Court has upheld the judgement of the DelhiHigh Court which had asked the Ministry of Defence to consider women for grantof Permanent Commission (PC) at par with male officers. Till that point oftime, women officers were only allowed Short Service Commission (SSC) under the Women Special Entry Scheme upto a maximum of 14 years, while male SSCofficers were eligible to be considered for PC. The minimum service required toearn a pension in the defence services being 20 years, women officers weremandatorily released from service at crossroads in mid 30s, without a permanentcareer, without financial backup or social security and at an age when familyand other commitments are at peak. The debate on the subject however seems tohave veered off the mark. Many commentators, including some military veterans,have questioned the physical ability of women to command troops in frontlinecombat, while others have raised a worry about a situation if a woman officeris taken Prisoner of War (POW) by the enemy and some have even spoken as to howwould women give 100% to their job considering there might be maternity breaksin between. Much of these discussions are otiose. Firstly, the issue before the SC was notfrontline combat but simply grant of PC and command appointments instead of staff appointments and that too in earmarked posts. While the litigation waspending, the government had issued a policy allowing women to be considered forPC with a caveat that they will not hold command positions at par with menand would only hold specified posts. The policy also unreasonably requiredwomen to provide the option for PC within 3 to 4 years of service while therewas no such condition imposed on men. It was the contention of the litigantsthat they could not be slotted in specific posts when there were no suchfetters on their male counterparts. It may be noted again that the issue wasnot command in combat arms on the battlefront but regular appointments involvingcommand of troops in branches in which women were already serving as SSC Officers.In any case, such a policy was absurd on the face of it since it allowed themto hold myriad appointments while they were SSC Officers but restricted theiremployability as soon as they became permanent. In certain quarters there was afear that women would usurp soft appointments leading to additional pressureon males who would remain deployed in tougher areas. However, theiremployability on varied (rather than restricted) appointments should now ratherterminate this fear since it is known to all that it would be a level fieldhereafter, without any favour based upon gender. Secondly, when there is no deployment ofwomen on frontline combat, there is no question of them being taken POW. Andeven if hypothetically they were so deployed, they are soldiers first and thenwomen, and our concern should be regarding an Indian soldier taken POW, and nota woman. In any case, to raise an issue which is an impossibility just tocreate some kind of an emotionally chilling effect does not seem judicious.Thirdly, the bogey of maternity leave is quite lame. It is well known that thisis likely to emanate during the younger years and not during the later yearswhen such officers are granted PC. When this has not posed a problem during SSC,why would it interfere during PC when the incidence, on the contrary, is likelyto be very low? Members of other uniformed organisations, such as the Policeand the Central Armed Police Forces, have accepted them with open arms withoutany impediment and it is painful to hear such regressive comments from membersof the military community. Needless to state, some of these organisationsdeploy women in much tougher roles and in lower ranks. I have always maintained that women in thedefence services are not meant for parades and showcasing in events but must beplaced in responsible positions in multiple roles to the greatest extentpossible. The switch-over would result in some churning and may require somefine-tuning but a few years from now, this will not even remain a talking pointwith women men well assimilated in a system characterised only by meritand competence. he positive and very mature statements of the Raksha Mantri andthe Army Chief only point towards an egalitarian and progressive time ahead forthe military aided with some practical and well-chiselled policy interventionsin the near future.- - - author is a lawyer in the Punjab Haryana High Court and Member of theInternational Society of Military Law and the Law of War. My oped for the Times of India:Burgeoning Military Pension Bill- the needfor practical solutionsThereis a need for ingenious solutions rather than vilification of concepts likeOROP or Disability PensionMajor Navdeep SinghDefence spending is again in news, and withit the common censure of the allocation being consumed mostly by pay andpensions. While we may choose to weigh in with emotional calls of soldierlypride and sacrifice et al, dispassionately seen the hazard the pay and pensionbill poses is not easy to ignore. But then the solution does not lie in amaladroit approach of demonising concepts such as One Rank One Pension (OROP)or disability benefits. The heavy bill and its ascension with everypay commission is indeed a cause of worry. Though the defence services havebeen trying to shed some of their manpower, it is unlikely that this modestcurtailment would result in significant savings. So what is the solution?The straight response would be to drasticallyexpand the concept of Short Service Commission (SSC), making it more attractiveand less exploitative, and also introduce a Short Service Engagement scheme at jawan level with contributory pension,while concomitantly reducing the permanent staff under the existing definedpension (OROP) system. This arrangement can result in maintenance of militarystrength at the current levels but greatly reduce the pension bill.Currently, officers are being offered SSC of10 to 14 years after which they are compulsorily released without any pension,except those who opt (and are selected) for permanent commission. Previously,officers were allowed to exit after 5 years. Needless to state, the currentstructure leaves them at crossroads without pension or guaranteed employmentalmost in middle age with peak family commitments. The way out of the quagmireis simple. Such SSC officers must be made members of a contributory pensionscheme under the National Pension System (NPS) as is now applicable to civilianemployees. Officers under the Short Service Appointment scheme of Indian CoastGuard are already members of NPS, denying the same to their militarycounterparts is anyway incongruous. There is also a requirement to protecttheir status or seniority if they opt for civil government employment afterrelease. Similarly, there is a need to introduce a Short Service Engagementscheme for recruitment at lower ranks- individuals who will serve for 10 yearsand then released with NPS benefits and ex-serviceman status . Obviously,these Short Service schemes would be voluntary and concurrent to regularentries which shall continue to be on OROP dispensation. However, gradually thenumber of the former may be amplified and the latter reduced. The establishment would have to findingenious, albeit practical and non-exploitative ways, to reduce the bill, anddemonising OROP or disability pensions is not one of them. OROP is mandated bythe Cabinet and was promised by successive governments to cater to themassively curtailed tenure of defence personnel who start retiring in their30s. There is no going back on it. The way out is to reduce future OROPbeneficiaries by rationalising permanent staff. Similarly, the recent furore over disabilitypensions was unpleasant. Frequent transfers, regimented lifestyle, curtailmentof freedoms and inability to cater to domestic commitments result inaggravation of common medical conditions in soldiers, a reality all militariesface globally. Finding ways to reduce disability benefits is a cloddishapproach which will not curtail the incidence of disability. Rather, theattempt should be to introduce policies to reduce stress strain, providecomfort and succour to soldiers to reduce the prevalence of disability andconsequently disability benefits. It would be imprudent and indeed irrationallyunique for us as a nation to attempt to vilify military disabilities to savepennies rather than making lives of soldiers better. Lateral induction of soldiers to otherorganisations such as Central Armed Police Forces (CAPFs) has also beenpropagated by successive pay commissions but opposed by the Ministry of HomeAffairs (MHA). Perhaps the reason might be valid to an extent. CAPFs would notwant military veterans parachuting into their ranks and blocking their careerprogression. But then there could be a solution by simply raising a separateorganisation of military veterans under the MHA and employ them for dutiesconfiguring with their past expertise or utilize them for nationalreconstruction roles or executing government schemes. The military pension bill is not an unrulymonster, however what is required to tame it is a balanced but determined andhumane political executive, and it seems the current Raksha Mantri might just fit that description. Ms Ratna Viswanathan and Ihave co-authored an opinion piece for The Print titled Problem isn t taxing disability pension of Armed forces, butdemonising disability , which covers the raging controversy on the issue of disabilitypension, the vilification and demonising of military disabilities and theissues of concern that relate to low medical category soldiers in the military.EXPLAINER ON THE CONCEPT OF DISABILITY PENSION, INVALIDATION AND THE RECENT CONTROVERSY OVERTHE TAX EXEMPTION THEREUPON, VIEWED HISTORICALLYThough I would be soonwriting a detailed opinion piece again on military disabilities and our faultyapproach on the same, it becomes important to put out some data and a few historical facts on the recentcontroversy. The CBDT Circular: TheCBDT has recently issued a circular stating that Income Tax Exemption on disabilitypension would only be allowed to those disabled personnel who are invalided frommilitary service and not to those who are released on completion of tenure orsuperannuation. It seems that the term invalided has been taken by the CBDTto mean those who are medically boarded out prematurely from military servicebefore their actual retirement, discharge or superannuation. The controversyover this term is however not new. However, it becomes important to clarifythis issue in its historical perspective since some of this information wouldnot be available with the Finance Ministry, the CBDT, the Ministry of Defenceand even the Defence Services. History of DisabilityPension: Wound, Injury and Disability Pension has remained applicableto military personnel (combatant as well as non-combatants and even privateservants of officers during old times), in one form or the other since thedays of the Crown. As the terminology suggests, it was granted for disabilitiessuffered during the course of service or illnesses incurred while in service. The term Invalid : Theterm invalid or invalided in military parlance simply referred to a person whobecame an Invalid (disabled) while in military service. It had no connectionwith invaliding out prematurely from military service . A person who wasdisabled while in military service was termed as an Invalid and when such aperson was discharged, whether prematurely or on completion of his terms, hewas discharged through a medical board and termed invalided from service (andnot invalided out of service). Exemption of Income Tax, 1922: IncomeTax was exempted in the year 1922 for invalid soldiers and the same terminologyas above was used in the applicable military instructions as well as the exemptiongranted by the Finance Department. Governor General s Orders of1926: Disability Pension attained exalted status in the year1926, when GM Young, the then Secretary to the Government of India, ArmyDepartment, issued a notification in the name of the Governor General inCouncil stating therein that no public claim or public debt shall be recoveredfrom the Wound, Injury or Disability Pension of an officer or soldier. It maybe noted that this was applicable to disability pension across the board andthe term invalided was not even pressed into service.Confusion caused by 1940Regulations: The confusion on the term invalided howeverraised its ugly head when Pension Regulations, 1940, were published. Here, theterm invalided was used in provisions related to disability pension giving animpression that the term applied only to those who were prematurely boarded outof the military. Although, the same regulations in the same breath also statedthat a person retiring on completion of service limits would be grantedbenefits as if he had been invalided , again multiplying the confusion. Corrective action byGovernment of India to clear the confusion: The problem createdby the original (correct) definition of invalided as also signified by the notification issued by the Secretary,Army Department, and the one that came to be incorrectly understood by militaryaccountants due to the publication of Pension Regulations 1940, however wasresolved by the Government of India once and for all in the year 1950 when the EntitlementRules, 1950, were promulgated and it was specifically underlined and providedthat the term invalidation for thepurposes of disability pension shall mean all military personnel who at thetime of release from service are in a medical category lower than the one inwhich they were recruited. Meaning thereby, all Low Medical Category personnelwho were fit at the time of entry into service were conclusively declared to befalling under the category of invalidation thereby bringing the definitionback to its origins. These Rules of 1950 were officially appended with theexisting Pension Regulations by the order of the Central Government. This wasfurther provided in Ministry of Defence Letter No A/22255/AG/PS4 (d)/2725/Pen-Cdated 05 November 1969. The same was reiterated later in the form of Rule 4 of EntitlementRules, 1982. Needless to state, this action was very important and requiredsince there can be multiple categories of disabled personnel within the Armyand to perpetuate discrimination amongst them based upon the type of exit fromservice would amount to hair-splitting. Some such categories are- those who areprematurely boarded out since they are unable to cope up with life in the militaryafter getting disabled, those who opt to continue and serve despite the disabilityand then retire on regular completion of terms/service limits, those who are dischargedsince no sheltered appointment is available, those who opt out of servicebecause of lack of promotion due to disability, those who are not promoted andhence retired early at the age prescribed for lower ranks etcLitigation: Thediscrimination between disability benefits between those who are prematurely medicallyboarded out and those who opt to continue to serve the nation despite thedisability also became a subject of many a litigation. Some such examples areCivil Writ 2967/1989 Mahavir Singh Narwal Vs Union of India as affirmed by theSupreme Court in SLP 24171/2004 disposed on 04 Jan 2008 wherein the Delhi HighCourt explained and interpretation the term invalidation and the decision ofthe Supreme Court in Civil Appeal 418/2012 in Union of India Vs Ram Avtar andof course in Civil Appeal 5591/2006 KJS Buttar Vs Union of India.Going back to the confusionof 1940: The term invalidation is hence adequately defined bythe Rules of the Government and interpreted by Constitutional Courts. The CBDT,it seems, has however restrictively interpreted the term as per its confused definitionas it existed between 1940 (When Pension Regulations, 1940 were promulgated)and 1950 (When Entitlement Rules, 1950 were put into force to clarify the term invalidation ).Demonisation of militarydisabilities: What we also see today is unnecessary demonisationof military disabilities. The incidence of aggravation of disabilities inmilitary personnel is much higher than civilian employees simply due to the reasonof frequent movements and unsettled life (which ironically continues even in peacefamily stations due to an extreme shortage of family accommodation), regimentedlifestyle and barrack life away from family, inability to cater to domesticcommitments, inability to fulfil sexual desires, curtailment of freedoms, applicabilityof a disciplinary code 24X7, exposure to stressful situations including operationalareas etc. Disability hence is not a sign of weakness and even the bravest ofthe brave battle-hardened soldier can fall prey to it. As far as the rumour ofGenerals cornering disability claims is concerned, the incidence of a disabilityincurred in-service is bound to be higher in senior ranks simply because theyretire in their late 50s (upto the age of 60) while soldiers start retiring intheir 30s. The allegation of fake or feigned disabilities (though not thereason for the CBDT Circular) is also laughable since the incidence of disabilityis first endorsed by an Initial Medical Board, then by re-categorizationmedical boards and then finally by the Release Medical Board at the time ofretirement. There are hence multiple doctors, all different and at differentlocations in the country, who endorse the existence of a medical condition andits percentage. So far as the thought as to why aggravated disabilities such asheart disease, hypertension, depression, neurosis, psychosis etc are eligiblefor disability benefits is concerned, the same is not some kind of a favour toour soldiers since it is provided in pensionary rules for military as well asother uniformed personnel that such disabilities are affected by stress andstrain of service and eligible for disability benefits. Rules for disability benefits in IndiaDisabilities in otherdemocracies, their incidence and tax status: In this context, itwould be instructive to examine military disabilities in other nations. An aptexample would be the US which also has an operationally committed military andthe pension rules are pretty much similar to ours and numerically the activeduty personnel are roughly the same. As per the official data maintained by theGovernment, the incidence of disability in the military has gone up in the US by117% from 1990 to 2018. Also, a total of4.75 million veterans in the US are in receipt of disability benefits (See official data here).In our country, the number of disabilitypensioners is estimated to be less than 0.2 million. The disability pension and compensation in theUS is exempted from Tax as provided by Publication 525 of the Internal RevenueService.Should we be concerned about the rise of incidence of disability in our soldiers and theirdeteriorating health profile and provide them with comfort, care and succour, or shouldwe denigrate those who are suffering from illnesses and rather count pennies? Morethan others, I ask this from the serving military fraternity. Veterans with Disability Benefits in the USTax Exemption to disabled veterans in the USThe above is meant toclarify the technical and factual details on the subject since most of thedebate on the matter was following an emotional track. Emotions and highsounding words like sacrifice etc etc aside, the matter has to be dealt underthe right technical perspective and I am personally sanguine that the politicalexecutive would be able to address this issue if provided the correct inputsand data. ThanksNavdeep.I write for The Quint on theunfortunate helicopter crash which is being speculated to have been caused byfriendly fire and wherein it was hinted in the media that the concerned officersmay be tried for culpable homicide.Budgam Helicopter Crash: Fog of War and CulpabilityMajorNavdeep SinghThe Budgam helicopter crashincident of 27th February in which we lost precious lives of airforce personnel, is again in the news. There were reports in themedia that the chopper came down on account of friendly fire and that the AirForce was contemplating trying the officers responsible for the incident for culpable homicide. I even saw reportsand comments on social media that the pensionary and other benefits of the familiesof the fallen would be determined as per the conclusions reached in theinvestigation. I personally find the abovequite odd for a variety of reasons.Firstly,while the hint of the friendly fire aspect might be true, I do not feel that aconclusion of all attendant circumstances quathe fixing of the blame can be reached until the statutory Court of Inquiryconvened by the Air Force under the Air Force Rules renders its report. Secondly, incase someone connected with the procedure has casually stated that the officerswould be tried for culpable homicide, the statement seems irresponsible simplydue to the fact that till now the Court of Inquiry has not reached a conclusionor ascribed blame and hence it would be absolutely reckless and immature forany person officially associated with the proceedings to make such a statement.Thirdly,the decision to take action against the guilty, if any, is of the concerned competentauthorities under law and not that of the Court of Inquiry, which is simply a factfinding body and recommendatory in nature. Fourthly, evenbefore the conclusion of the Court of Inquiry, and establishment of culpability,it would totally be inappropriate to prejudge the matter and far-fetched tocomment upon the sections of law under which a person would be tried. In fact, thisis one aspect that the defence services, dehors the instant case, need to be quite alive about, since statements suchas the concerned official(s) shall be given exemplary punishment start flyingleft, right and centre even from senior officers on any unfortunate happeningor alleged crime, which clearly gives rise to the fear of institutional biasand prejudgement.Fifthly,the incident, though extremely unfortunate, can plainly be ascribed to fog ofwar and battle ambiguities, albeit highly undesirable in a limited conflictsituation, and would at the most be a case of negligence leading to death(Section 304-A Indian Penal Code), and cannot, by any stretch of imagination,be termed as culpable homicide (Section 299 Indian Penal Code), which requiresan element of intention or knowledge . In any case, there are specificprovisions related to such incidents available under the Air Force Act, such asSection 62 (Offences in relation to aircraft and flying) which again grade the wrongdoinginto higher and lower category based upon the fact whether the action waswilful or otherwise. Sixthly, itwould be inane to tag the issue with release of benefits to the families ofthose who unfortunately passed away in this incident. The grant of benefits tothe families would have no connexion whatsoever with the culpability of theconcerned employees. The families of the fallen are casualties in anoperational area and are eligible to full and liberalized pensionary benefitsand ex-gratia as is available to deaths in operations. The locale of theincident is a notified operational region. While the incident wasextremely unfortunate, it is hoped and expected that the Court of Inquiryreveals the nuts and bolts of the happenings of that fateful day, not only toestablish the truth, but also to ensure that such mishap never happens in thefuture. I am confident of the factthat not only would the Air Force go into the very minute details of the matterwithout prejudging any guilt of any personality involved, but would alsodisplay the moral courage expected of it in unravelling the truth. Irrespective of theregrettable circumstances surrounding this incident, the nation and the defenceservices firmly stand behind the families of those whom we lost that day inFebruary.I am all for enforcement of legal rights andfully believe that one of the most precious privileges of a citizen in our democracyis the ability to challenge the might of the State. However a recent phenomenonof fanning litigious tendency in the military, that too, based upon hearsay orperceived injustice, is quite alarming. A false picture is embedded in many mindsthat litigation or creating an uproar coupled with notional and emotional callsis the answer to everything, forgetting in the bargain that Courts cannot interveneunless there is infringement of a legal right or policy or rule or when thereis a patently perverse and arbitrary action. Every time a matter comes to note,many within the military community take recourse to commenting upon it, withouteven checking its background and veracity, displaying a tendency that goes beyondeven trade unionism. Some even start floating calculation sheets based upon intended litigation, again on tittle-tattle,thus raising expectations without reason which might ultimately result in dejectionand frustration.While it is true that the system of redressalof grievances in the defence services leaves much to be desired, and I have written on itearlier, this disruptive tendency might succeed in drawingeyeballs on social media but only a graceful approach, that too limited to realand solid issues, can help in resolution- institutionally or legally. Many membersof the military community also start deriding senior military leadership onsocial media by creating a hullabaloobut take no steps to institutionallyresolve a matter by even putting it in writing to the concerned quarters or finallytaking it to its logical legal conclusion. Again there might be instanceswherein senior leadership would have taken actions that were not well-roundedbut that may not always be the case. And where there is actual injustice, againthe way to address is to take legal recourse in a refined manner, with malicetowards the anomaly, not against the personalities involved. Not just seniors, even civil servants continue to bear the brunt of the military community on social media. Most ofthis anger emanates from the real and perceived acts of bureaucracy in the Ministryof Defence. But one must not forget that the actions of elements in the DefenceMinistry are not reflective of the entire civil services and neither should one svision be so restricted that the impression of the entire civilian staff of theRepublic of India is tagged with what happens in some corner of a table of a juniorstaffer of one ministry in Delhi. The projection that goes out on social mediais that the military is being persecuted, which we all know is not the case andone can imagine the negative impact this has on the morale of the rank andfile, almost bordering on disaffection. This fastest finger first syndrome is also spilling into other domains.Certain messages with communal undertones are also spread on military groups,some injected by the adversary, and these are further embellished with utterlyimmature comments not expected from someone who has worn the uniform. We fail to realise that this subtle injectionof hate is meant to divide our society and this subtle injection ofdisaffection is meant to neutralize the strength of our military and createschisms. Be aware. Be careful. Be wise. Thanks,Navdeep.

TAGS:Service Military Indian 

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