Armed Forces Tribunal: The plea for documents of the Courts of Inquiry held against an Army major, whose services were terminated by the President, was denied by the Armed Forces Tribunal (AFT).
The major had applied to the AFT’s primary bench, requesting an order for the Army to provide certified copies of the Court of Inquiry proceedings against him as well as the forensic report on his digital equipment.
The respondents received notice from the AFT bench, which is composed of Justice Rajendra Menon and Lieutenant General PM Hariz (retd), at their November 3 hearing. They were requested to provide justification for why the documents should not be provided.
Following the suit’s adjudication on November 28, the government counsel advised the bench that, due to the case’s security implications and sensitivity, the subject should be considered “in chamber.” Consequently, the issue was discussed “in chamber.”
Armed Forces Tribunal
The government attorney went on to say that the President of India, acting in the exercise of her powers under Section 18 of the Army Act 1950 and Article 310 of the Indian Constitution, issued an order terminating the major’s services based on the same documents that the major had requested.
An order made under Section 18 of the Army Act is clearly not within the authority of this tribunal. It also cannot be reviewed by the courts under the Armed Forces Tribunal Act, as stated in Section 3(o) sub-clause (iv)(i), which lists things that this tribunal does not have authority over. Thus, the counsel said, the tribunal lacks jurisdiction to address the matter and the issue brought forth by the major.
Despite the fact that the request is for certified copies of the documents, we believe that the definition and restrictions of “service matters” found in Section 3(o) subclause (iv)(i) also apply to the issue of document supply if the Hon’ble President of India has taken any action based on the said documents, which the applicant acknowledges in the application. As a result, the respondents’ complaints have merit. The bench stated in its ruling, “We maintain the same and dismiss the application since it is not maintainable before us.
The major’s attorney stressed that, in accordance with Army Rule 184, he was entitled to copies of a Court of Inquiry/Proceedings of a Board of Officers, unless directed otherwise by the Chief of Army Staff for reasons documented in writing, according to the AFT bench’s order.
The bench ordered that since the documents were presented to the President and the President acted under Section 18, it was the President’s decision to take the action that is being contested. The bench further stated that the applicant’s prayer could not be granted because the final order passed under Section 18 is outside the jurisdiction of this Tribunal, and all actions taken that led to the President’s decision to pass the order under Section 18 are incidental and ancillary.
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Army major’s plea for copies of inquiries
The major was discovered to be in contact with Aarushi Akash, a Pakistani intelligence agent, on Facebook in March 2022, according to the Military Intelligence Counter Intelligence Unit of Strategic Forces Command. The intelligence personnel took the major’s laptop, hard drive, and two cell phones. He was requested to declare all digital devices, as well as social media accounts with mobile numbers, usernames, and passwords, in order to facilitate a forensic digital investigation of these gadgets.
At first, it was thought that the major was in communication with four or five members of the Pakistani intelligence community. Subsequent interrogation of the officer revealed, however, that he had only communicated with one suspected Pakistani agent. The officer had stated that he did not know if the contact was Aarushi Akash, the suspected PIO.
Two Courts of Inquiry were subsequently held in opposition to the officer. Based on the information at hand, the Court of Inquiry’s initial summons was intended to determine the officer’s “sadistic behaviour and hypersexuality.” The second directive was for an investigation to look into any security breaches and his interactions with any Pakistani operatives.
One month had passed since the first inquiry was started when this one was started. By September and October of 2022, both inquiries had been finished.
The major was put on hold in May 2022 while these Courts of Inquiry were in session. He was requested to leave the artillery unit he was assigned to at the time and was given the President’s order terminating his services on October 2, 2023.
