Courts and Tribunals have no jurisdiction to correct military reports used for strategic purposes

Asmita Kuvalekar | Government Law College, Mumbai | 19^th April 2020. 

UNION OF INDIA AND ORS VS. BRIG. DEVINDER SINGH (CIVIL APPEAL NOS NO 2047-2048 OF 2011) 

FACTS OF THE CASE: 

The appellants in this case challenge an order passed by the Armed Forces Tribunal directing them to correctly enter data into reports at relevant places. The respondent was promoted to the post of Brigadier in May 1998. It is the Respondent’s claim that during this time period, he played a key role in forecasting the Kargil attack but his words were not taken seriously by senior officials. He complains that the Battle Performance Report, After-Action Report, Report of Army Headquarters Military Operations Directorate and Reports submitted by the High-Power Committee of the Government of India regarding the Kargil War underplayed his contribution and should thereby be amended. The Tribunal ruled in his favour, directing a correction in Para 192 of the impugned After-Action Report. 

The Supreme Court is called upon to decide whether the tribunal had the jurisdiction to do so. 

ISSUE:

1. Can Courts or tribunals determine the content of military reports? 

JUDGEMENT:

First and foremost, the Court analysed the nature of the reports in question. It was noted that such reports are made during a war and after it has ended. This serves the purpose of reviewing military performances in detail as well as creating a foundation for strategic decision-making in the future. Further, these reports are confidential and not open to the general public. 

With respect to an After-Action Report, the Court recognized that it is a compilation of various reports submitted by Officers while in action. Used for the objectives mentioned above, such a document has no impact whatsoever on an Officer’s military career as no adverse decisions are taken against Officers on that basis. In fact, in the present case, the Respondent was awarded Vishisht Seva Mandal for his work as Commander of an Infantry Brigade during Operation Vijay. 

Thus, the Apex Court pointed out that the issue raised by the Respondent here, is stemming from a personal need for recognition and expected credit for contributions made by him during his duty to the Nation. In any case, given that there are no “civil consequences” or negative feedback triggered by these reports, Courts or Tribunals have no authority to determine the correctness of these documents by way of Judicial Review. Simply put, reports made and maintained for strategic use in the future are not subject to Judicial Review and cannot be so challenged. 

To drive its point home, the judgement succinctly explains that it is not within the Court or Tribunal’s power to analyse historical facts as they are not experts in the field. Neither are they present with the Officers making reports during the pendency of a war. With no expertise and no jurisdiction, Judicial Review cannot be used to interfere with the maintenance of confidential military records. 

Allowing the appeal, the Tribunal’s order was duly set aside.