Defence tribunal raps government, seeks civil contempt powers

Expressing "helplessness" over getting its directions executed, the tribunal Friday also rapped the bureaucracy for sitting over a recommendation to amend the AFT Act, 2007, to give it civil contempt powers.

The demand comes against the backdrop of the government failing to reinstate a Muslim soldier, acquitted of charges of terror links, in service as a Naib Subedar even a year after the judgment was passed.

The AFT's principal bench here also asked ounsel of the Muslim soldier to go ahead and file an appeal in the Supreme Court so that proper directions could be issued to make the tribunal "functional and effective."

In their orders passed on Naib Subedar Fayaz Khan's appeal Friday, the bench headed by Justice A.K. Mathur and Lieutenant General M.L. Naidu said: "We feel that we are handicapped because we do not have powers to issue a civil contempt to get the orders of the tribunal executed. It is sad that the power of civil contempt for getting the tribunal's order executed has not been given in the Act."

Noting that it could be "an error or omission or may be deliberate" to keep civil contempt out of the Act, the two presiding officers said: "Because of not having this power, we cannot issue a civil contempt to get our orders executed and we feel helpless in the matters."

The Armed Forces Tribunal Act, 2007, however, provides for "criminal contempt" under Section 19, the only power under the contempt provisions for the tribunal.
The tribunal had in January last year passed orders to the army to reinstate Fayaz Khan after quashing the summary court martial that dismissed him from service as a religious teacher in 25 Rajput Regiment on charges of having links with Islamic terror groups.
"This is an unfortunate matter as the order was passed Jan 25, 2010, and the order has not been complied with till date. A number of times notice has been issued to all authorities, including the Defence Secretary, but without any result," the bench said.
It also noted that normally each tribunal has its own power to get its orders executed, but unfortunately this was the only act in which no power of civil contempt was given.
"We feel helpless that this tribunal cannot come to the rescue of persons despite the orders passed. It is a very strange state of affairs and we are sorry to say that we cannot help the petitioner," it said.

Pointing out that the lack of civil contempt power was hampering the functioning of the tribunal, the two presiding officers said the necessary recommendation to amend the Act was already with the government long ago.

"The orders are at the mercy of the authorities. If they wish,  they can execute. If they do not wish, they may not. This is a serious thing which has been already taken up with the government but without result. Hence, we cannot interfere in this execution application," the bench said.

Dismissing Fayaz Khan's plea in view of its limited powers, the bench allowed him to file an appeal in the Supreme Court, saying the matter involved serious question of law of public importance as the Act lacks powers to get orders executed.

"Therefore, we certify that this is the fit case to be taken to the Supreme Court so that proper directions can be given...to make this tribunal functional and effective," it said.