A MATTER OF IZZAT
By
Maj Gen VK Singh
In
the six decades since Independence
What
is ‘Izzat’? In India
Old
soldiers often lament that the soldier’s ‘Izzat’ is no longer what it was.
During the British Raj, a soldier was treated with respect not only by his
family, community and village but also by government officials. The special
position and status that the soldier enjoyed was formalised in various rules
and regulations, most of which exist even today. These ‘Service Privileges’ have gradually
been eroded, and few people in the Government are aware of them. Unfortunately,
we can only blame ourselves for this state of affairs. Very few officers, even
of senior rank, are aware of these privileges and the percentage of enlisted
men who know about them is almost zero. Naturally, very of them insist on
enforcement of their rights. As a result, these privileges have all but
vanished. This is the primary reason for the change in the status of the
soldier and his ‘Izzat’.
Service Privileges
of Army Personnel
Army
personnel enjoy certain statutory rights and privileges. Most of these are
applicable to serving soldiers. However, a few eg vacation of residential
house, are applicable even after retirement. These rights and privileges are
given in various Acts and Regulations, as given in the succeeding paragraphs.
The Adjutant General’s Branch has compiled a small booklet entitled RIGHTS AND
PRIVILEGES OF SOLDIERS – STATUTE PROVISIONS. This is being issued to officers
who retire from service by the ADG, (D&V), AG’s Branch, Army HQ. I presume
that copies are made available to officers on request.
Army Act
1950, Section 25. This section provides that the salary of a
soldier will be paid to him without any deduction, except when provided by
another section of the Army Act itself or another Act of Parliament. The Army
Act specifies the deductions that can be made from a soldier’s salary e.g. in
case of loss or damage due to neglect, by sentence of court martial, when
awarded rigorous imprisonment etc. The Income Tax Act also provides for
deduction of tax at source. Other than these, all deductions are technically
illegal, and can be challenged in courts. One agency that is unaware of this
provision is the MES (Military Engineer Service). The UABSO (Unit Accountant,
Barrack Stores Officer) frequently sends inflated or incorrect rent bills, due
to oversight, carelessness or the vacation reports not reaching them in time.
Sometimes, officers are charged market rent in case they do not vacate
government quarters in time, or the sanction does not reach the UABSO in time.
Based on these rent bills, the Controller of Defence Accounts (Officers) or the
CDA (O) promptly deducts the amount from the officer’s salary. If the deduction
is large – this is not infrequent - the officer does not get any pay for the
month, and he and his family suffer great financial hardship, especially if
they are separated. In most cases, the CDA (O) refunds the amount deducted
erroneously, but this is little consolation to the aggrieved officer or his
family.
After
suffering at the hands of the MES and the CDA (O) several times, I filed a writ
in the High Court of Madhya Pradesh in 1997, citing several instances of
deductions made from my salary in violation of Section 25 of the Army Act. The
case was heard by a bench comprising Justice AK Mathur, the Chief Justice and
Justice SK Kulshrestha. Some of the observations of the learned judges, which
are part of the judgement delivered at Jabalpur 27th September
1999 are given below: -
“Therefore, the authority should be woken up from the deep slumber that
by their omissions and commissions, the Army Personnel has to undergo a serious
economic hardship……. The omissions and commissions which have been pointed out
by him need to be properly taken care of and the attention of the authorities
should be drawn that that if it could happen with the officer in the rank of
Major General, then what to talk of the Jawan or non-commissioned officer, who
may be made to suffer on account of such omissions and commissions of Accounts
Department or MES.”
“All that we can do is
to express our anguish at the working of the MES Department that a proper care
is not being taken to intimate the Accounts Department for house rent
deductions which results in inconvenience and monetary hardship to officers.
……The instances, which have been pointed out by the petitioner in person are
very unfortunate and it very badly reflects on the functioning of the MES
Department. It is hoped that the authorities will gear up the Department and
save the Army Personnel from falling victim to their irresponsible manner of
functioning.”
The
hopes of learned judges were belied. Far from gearing up, the MES Department
has now stopped sending monthly rent bills, as given in the MES Regulations, on
the plea that it results in too much paper work. The MES now sends only
occupation and vacation returns, which has only worsened the situation. If the
vacation report is not sent or gets lost in transit, the officer continues to
pay rent until he discovers the mistake, gets it rectified, and asks for a
refund.
Army Act 1950, Sections 28 & 29. Section 28 provides immunity from attachment
of pay and property, by any court. In effect, this section protects the pay and
property of a soldier from attachment if he defaults on loan re-payments, even
if the property in question has been hypothecated or mortgaged. Section 29
provides immunity from arrest for debt. Soldiers who are arrested can claim
damages, without payment of court fee. (The HDFC, banks and finance companies
that give loans to soldiers are probably not aware of these provisions.
Mercifully, they have never been misused).
Army Act 1950, Section 30. Persons attending courts martial, including
witnesses are immune from arrest. Those who are arrested can be discharged
under orders of the court martial.
Army Act 1950, Section 31. Reservists are entitled to the rights given
in section 28 & 29, when called out for service or training.
Army Act 1950, Section 32. This provides for priority in respect of
litigation and is one of the most important privileges. If the CO certifies
that a soldier has been given leave for defending a suit, and specifies the
exact duration and dates, the court must decide the case during this period, or
record the reasons for its inability to do so and give a copy of this to the
soldier. Most courts are unaware of this provision, but readily comply when
presented with the certificate. Several years ago, an officer appealed to the
High Court when the lower court did not consider his request for priority under
this section. The High Court commented adversely on the ignorance of the
concerned magistrate and gave directions that he should finally decide the case
during the next hearing or record his reasons for not being able to do so.
Indian Soldiers Litigation Act, 1925. Section 6 of this Act provides that if a soldier
serving under special conditions e.g. in an operational area, is involved in a
court case and is absent, the proceedings will be suspended to protect his
interest. Section 9 provides that on receipt of a certificate from the CO that
a soldier is serving under special conditions, the court has to postpone the
proceedings till the soldier ceases to serve under these conditions. In
practice, commanding officers prefer to send the men on leave even if the unit
is heavily committed, not wishing to risk the issue of a summons or a contempt
notice. Section 10 stipulates that if a decree is passed against the
interest of a soldier serving under special conditions, it will be set aside.
Courts often give ex parte judgements that are prejudicial to soldiers, who
cannot be present on the dates when their cases are heard. This provision
should be invoked to set aside such decrees.
Code of Criminal Procedure 1973. The CrPC
contains several useful provisions that protect troops against civil and
criminal action while performing their duties. Section 45 prohibits the arrest
of a soldier by civil police for anything done in performance of his official
duties without the sanction of the Central Government. Section 197 (2) protects
soldiers acting in discharge of their duties from prosecution. This is an
important provision that protects soldiers who are ordered to open fire on
civilians during disturbances and riots. Human Rights Groups are vehemently
opposed to this provision, which they feel permits soldiers to carry out
atrocities. Section 475 stipulates that persons held in civil custody, who can
be tried by both civil and military courts, will be delivered to the CO for
trial by court martial, by the court. If not in civil custody, the court will
make efforts to apprehend the soldier, if requested by the CO.
Code of Civil Procedure, 1908 (Rule 1
of Order XXVIII) & Regs for the Army
534.
This deals with the appointment of an attorney. A soldier who cannot obtain
leave to prosecute or defend a court case can authorise anyone (not necessarily
a lawyer) to do this on his behalf. The authority is to be signed by the
CO. This is a very important privilege
that is rarely used. Soldiers who cannot be present can authorise their
relatives, friends or colleagues to represent them in courts. Except in cases
involving detailed knowledge of law, a soldier need not engage a lawyer.
Unfortunately, very few soldiers are aware of this provision.
Regs for Army 535. A Power of Attorney
given by a soldier is exempt from court fees. This privilege is almost never
used and soldiers are expected to pay stamp duties and court fees like everyone
else. Sadly, even within the Army most
of us are not aware of this provision. It is interesting to note that while the
lawmakers sought to exempt soldiers from paying stamp duties in order to reduce
their financial burden, military authorities themselves do exactly the reverse.
The Adjutant General’s Branch in Army Headquarters insists that tripartite
agreements and surety bonds are affixed with court fee stamps when sanctioning
loans. The Army Welfare Housing Organisation (AWHO) insists on affidavits and
agreements on stamp paper duly attested buy a notary or magistrate. The latest
entrant in the field, the Ex-Servicemen Contributory Health Scheme (ECHS) has
gone a step further and wants affidavits on stamp papers attested by a
magistrate. Apparently, the lawmakers and courts place a greater premium on the
value a commanding officer’s signature than our own organizations.
Pension Act 1871, Section 11. The pension of a soldier is immune from
attachment by any court.
Indian Stamp Act 1899, Article 53 of Schedule1. Receipts for pay and
allowances of NCOs and OR do not require revenue stamps.
Indian Tolls (Army and Air Force Act, 1901, Section 3. All Army personnel are
exempt from tolls when travelling on duty. This also applies to their families
and followers. It includes tolls on ships, ferries, road bridges and turnpikes.
If toll is recovered in contravention of these rules, the person collecting it
liable to pay a fine of fifty rupees. The soldier can claim compensation from
the Government for the loss. Personnel on casual leave are treated as being on
duty. Tolls are now being charged on most national highways. Many of them are
not aware of this provision. Some insist that only military vehicles are
exempted. This is not correct – the exemption is for the soldier and his
family, and not the mode and type of transport being used.
Vacation of Houses belonging to Soldiers. Rent control is a state subject and laws are
passed by respective states. However, based on advice from the Central
Government, almost all states have included special provisions for members of
the Armed Forces. Under these, a serving or retired soldier, or his widow, can
get house that was let out before his retirement vacated. The house will be
vacated if it is needed for the soldier or his family for residential purposes.
Where the soldier owns more than one house, this provision will apply for one
house only. The provisions have been upheld by various judgements of high
courts as well as the Supreme Court in the case of “Surjit Singh Kalra Vs.
UOI and Others (JT 1991 (i) SC 417).”
Many years ago, there was a case in the
Bombay High Court concerning a house purchased by an officer that was occupied
by a tenant of long standing. The officer filed a civil suit to get the house
vacated but lost, since the tenant pleaded that he had been staying there for
many years and had no other place to live. The officer then appealed to the
High Court that ordered that the house would be vacated. In his judgement, the
learned judge observed that one must remember the underlying intention of the
legislature when making laws granting special privileges to soldiers. The
nature of their calling forces soldiers to remain away from home for long
periods and they cannot look after their property, which is often occupied or
usurped by relatives or tenants. If the soldier were to always worry about a
roof over his head or for his family, he would not be able to give his best to
the service. It was remove this feeling of uncertainty that this particular
provision had been incorporated in the Rent Control Act. Hence, tenancy even of
long duration should not come in the way of this provision.
I have often wondered why soldiers do not
make use of this provision to purchase
houses at low prices instead of spending their lives savings on construction of
new houses or buying old ones at exorbitant rates. In almost all major towns
and cities, there are houses occupied by old tenants who pay rents that are
much lower than the prevalent market rates. The landlords find it difficult to
get such houses vacated and would gladly sell them for a fraction of the actual
cost. If a soldier were to buy such a house for his own use, he would be able
to get the tenant evicted under this provision.
Arms Act, Section 45 & GOI, MHA letter No. 9/88/49-policy (i) dated 04 Jul 1950 . Under this, commissioned
officers are authorised to keep a pistol/revolver without a licence as long as
they are in service, in addition to the service revolver/pistol issued to them.
These provisions are reproduced Paragraph 944 & 945 of the Regulations for
the Army, Defence Services Regulations. At one time, the officers were
permitted to import the pistol/revolver without paying custom duty, but this
privilege was later withdrawn. The import of weapons has been banned since 1986,
except for use by sportsmen in shooting competitions. The possession use of
long bladed weapons such as swords, daggers and knives requires a licence.
However, soldiers of Gurkha regiments are permitted to keep ‘khukris’ and those
of the Assam
Role of the Bureaucracy
While it is true that we ourselves
are responsible for the denigration in our status after Independence
In his book, ‘A Soldier Recalls’, Lt Gen
SK Sinha, presently the Governor of Jammu and Kashmir mentions the high level delegation
that was sent to Karachi for a conference convened by the UN to delineate the
Cease Fire Line. The delegation was headed by Lieut. General S.M. Shrinagesh,
then GOC-in-C Western Command. The secretaries in the Department of Kashmir
Affairs and in the Ministry of Defence were members of the delegation, which
also included Major General K.S. Thimayya and Brigadier S.H.F.J. Manekshaw.
Though he was only a Major, Sinha was appointed the Secretary of the
delegation. Today, a delegation with the same composition would be led by one
of the Secretaries, instead of the Army Commander.
At the time of Independence
Restoring the Soldier’s Izzat
How do we restore the soldier’s
Izzat? By increasing his pay and perks,
making the profession more attractive? By upgrading our ranks, so that they are
on par with those of the civil bureaucracy? By a media campaign that highlights
our achievements and quality of life? By increasing the quota of rum that a
soldier is permitted to draw while proceeding on leave. (I have it on good
authority that in the undivided Punjab of
pre-Independence India Punjab
to volunteer for service in the Army).
Perhaps the only way we can redeem some of
our lost privileges is by insisting on them. As already brought out, most of
the service privileges are still in existence. The concerned agencies such as
the judiciary, bureaucracy, police etc. do not extend them to us primarily
because of ignorance. One can hardly blame them, since most of us are ourselves
unaware of what we are entitled to.
Commanding Officers can play a key
role in educating the men during ‘sainik sammelans’ and encouraging them
to make use of the privileges that affect them, such as priority in court
cases, exemption from stamp duties, vacation of houses, exemption from tolls,
and so on. They must also be ready to take up cudgels on behalf of the men who
are denied these privileges by civilian authorities. This will not inly
ameliorate the hardship faced by soldiers but also enhance their ‘izzat’.
Retired personnel also play a major
part in upholding the dignity of the soldier. There have been cases of general
officers and brigadiers accepting second or third rung jobs in small companies.
(Usually, officers of flag rank are sent on deputation as managing directors or
vice presidents of large PSUs). There are also examples of retired JCOs working
as drivers, clerks and security guards. Such instances definitely lower the
image and esteem of the service. One reason for the personnel taking up such
assignments is lack of knowledge of the hierarchy prevalent in the corporate
world. After all, how many of us know the difference between a managing
director, an executive vice president and a CEO? Is the general manager senior
or the executive director? What is the status of a consultant or an adviser?
Perhaps the AG’s Branch or Resettlement Directorate needs to issue a booklet
explaining the meaning and job content of various designations that are found
in the corporate hierarchy. This can
also be included as an Annexure the brochure issued by AG’s Branch to officers
on retirement.
As mentioned earlier, we should first
set our own house in order before blaming others for not giving the soldier his
due. A man in uniform should not be asked for affidavits attested by a
magistrate - a certificate signed by him and counter signed by his commanding
officer should be enough. It is easier to take action against a soldier who
furnishes incorrect information in a certificate to his commanding officer than
in an affidavit attested by a notary public. Until very recently, affidavits
were unheard of within the service. They are asked for by civil courts, which
have no other method of verifying the statements being made by litigants. The
courts accept the signature of a commanding officer under Indian Soldiers
Litigation Act, 1925, Section 9; Army Act, Section 32; and Code of Civil
Procedure, 1908 (Rule 1 of Order XXVIII). If the courts are ready to accept
documents signed by the commanding officer, is there any justification for our
own organisations and establishments to insist on affidavits?
Conclusion
The ‘izzat’ of the soldier has
gradually declined in the years after Independence
20 Aug 2014
No comments:
Post a Comment