Russia For Increasing Military Cooperation with India: Bonhomie with Pak May Sour Relations

According to an item published in the latest issue of Indian Military Review  Russia and India have systematically increased their cooperation in the military and military-technical cooperation spheres in 2014, within the ‘privileged strategic partnership’ the two countries share. The Ministry of Foreign Affairs of the Russian Federation detailed this cooperation in its Annual Report on Activities for 2014, posted on the Ministry’s official website.

Giving details, the new issue of Indian Military Review, published from New Delhi said, “Against the background of anti-Russian sanctions pressure, being imposed by the West, Moscow continued to increase cooperation with countries in the Asia-Pacific Region (APR),” the report noted. “The main focus was placed on this cooperation leading to a positive impact on Russia’s regions, and in particular the Far East and Siberia.”

In relations with India, Russia continued the highly dynamic dialogue within the ‘privileged strategic partnership’ of the two countries.

According to the report, on December 11, 2014, during the annual Russia-India Summit, in New Delhi, the new Indian leadership reaffirmed the country’s commitment to intensify bilateral relations.

“As part of the implementation of the flagship project in the energy sector – the construction of the Kudankulam Nuclear Power Plant in India – the first energy block was connected to the electricity grid of the country, and work on the second block is continuing. Military and military-technical cooperation also grew steadily; in Russia, joint exercises were held by all branches of the Indian armed forces, and the aircraft carrier Vikramaditya (earlier the Admiral Gorshkov) entered into service in the Indian Navy,” the Foreign Ministry report said.

Pak-Russian Bonhomie

India may not officially give its take ever on this, but it is one development which won't go down well with the Indian government and won't be good for Indo-Russian relationship: the decision of Russia and Pakistan to hold joint military exercises first time ever.

The question is will India formally react to the Russia-Pakistan bonhomie? If it does and the Ministry of External Affairs issues a formal statement, though unlikely as per this writer's understanding, how will India react? Will India react like a jilted lover or will India be more understanding and react like a mature friend?

There are two ways of looking at the increasing bonhomie between Moscow and Islamabad. One is the emotive way of bilateral relations which have traditionally been very warm though the two sides have not made much song and dance about it. The other is the cold strategic calculus and fast changing geopolitics.

On the emotional plane of bilateral relations, India may act like a possessive spouse and howl at Russia being wooed by a new suitor, Pakistan. A discernible chill has set in Indo-Russian relations. This is visible from the declining bilateral trade which was below $10 billion last year and is likely to tumble further this year. This is despite the fact that the two sides had vowed to raise their bilateral trade to $20 billion in 2015!

But then Russia itself cannot escape the blame for this state of affairs. True, Russians were miffed over the fact that Indian defence import orders were drying up and the United States edged past Russia last year to become India's largest armament exporter. But that doesn't mean that Russia should lift its embargo on sale of weaponry to Pakistan as it did last year.

The decision of Russia and Pakistan to hold joint military exercises is nothing in comparison to the much bigger red rag the Russians waved at India last year. Sergey Chemezov, the head of Rostec Corporation, inexplicably went on record saying last year that Russia was open to military-technological cooperation with Pakistan and the negotiations on the sales of Mi-35 multipurpose military transport helicopters to that country were already underway.

However, Indian pressure has worked so far and no Russian official has shot off his mouth on sale of Russian attack helicopters to Pakistan since then. The other way of looking at increasing bonhomie between Russia and Pakistan is the fast-changing strategic matrix in the region.

Russia knows the importance of Pakistan as American and NATO troops have already started pulling out of Afghanistan. By next year end, Afghanistan will be completely on its own. Pakistan has been playing the waiting game for long and biding for its time.

Russia wants to keep Pakistan in good humour and needs Pakistan's services in Afghanistan, something that China has been doing for decades.

MILITARY JUSTICE- Armed Forces Tribunal Cannot be Challenged

The Supreme Court (SC) has held that all appeals against orders passed by the Armed Forces Tribunals (AFT) would lie with it and not with the high courts. The judgment, passed on 11 March, has implications for serving and retired defence personnel who have moved against the AFT to seek judicial redressal of their grievances.

Disposing of a bunch of civil appeals, an SC Bench comprising Justices Sudhansu Jyoti Mukhopadhaya and NV Ramana upheld the judgments on the issue passed by the Allahabad High Court and the Andhra Pardesh High Court. The Bench, at the same time, set aside judgments passed by the Delhi High Court, which had ruled that high courts are empowered to hear appeals against AFT orders.

The Bench observed that Section 31 of the AFT Act specifically provides for an appeal to the Supreme Court but stipulates two distinct routes for such an appeal. The first route is sanctioned by the tribunal itself, granting leave to file such an appeal if a point of law of general public importance is involved. The second route is through provisions of the same section, which “appears to the Supreme Court” empowering it to permit the filing of an appeal against any AFT order.

Based upon earlier SC judgments, the Bench also observed that the high court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute, under which the complaint has been taken, contains a mechanism for redressal of grievance.

A bench of justices S.J. Mukhopadaya and N.V. Ramana said: “When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The high court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.”

Justice Mukhopadaya said: “It is clear from the scheme of the AFT Act that jurisdiction of the tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of civil court and the high court so far as it relates to suit relating to condition of service of the persons subject to Army Act, Navy Act and the Air Force Act, 1950.”

“When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance,” the Bench noted.

In 2012, the Supreme Court had ruled that military litigants have no vested right of appeal against an AFT judgment. According to the Armed Forces Tribunal Act, 2007, the apex court can only be approached if a "point of law of general public importance" is involved, or if the issue is important enough to warrant the attention of the apex court.

If the high court entertains a petition under Article 226 against the AFT orders bypassing the machinery of statute, that is Sections 30 and 31 of the AFT Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this court, the Bench ruled.

Legal Provisions

The crucial sections at issue were Sections 30 and 31, which provided for appeals from the orders of the Tribunal. Section 30 states: “Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19).”

Section 31 likewise states: “An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court.”

Sections 30 and 31, therefore, lay down the procedure for appealing an order of the Armed Forces Tribunal to the Supreme Court. Parallel to this, Section 33 excludes the jurisdiction of civil courts, and Section 34 provides the transfer of all pending cases (including cases in the High Courts) to the Tribunal, after the commencement of the Tribunal.

The question before the Court was whether Sections 30 and 31 barred the jurisdiction of the High Courts from hearing petitions (under 226/227) against the orders of the Armed Forces Tribunal. The Court began by pointing out certain specific provisions of the Constitution. Under Article 33 of the Constitution, Parliament may modify the operation of Part III to the armed forces. Article 227(4) of the Constitution, part of the provision dealing with the superintendence of the High Courts, provides that “nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.” Article 136(2), part of the provision dealing with special leave to appeal to the Supreme Court, provides that “nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”

At this point, the following argument seems to be there to be made: admittedly, judicial review under Articles 226 and 227, and under Article 32, is part of the basic structure of the Constitution. But the Constitution itself, through various provisions, carves out an exception in the cases of the armed forces, where the scope of judicial review is to be regulated by statute (Articles 227(4) and 136(2)). Consequently, Parliament may, by law, bar the jurisdiction of the High Court to hear appeals from orders passed by the Armed Forces Tribunal.

Such an argument is open to objection. It also raises the fascinating question of whether an original constitutional provision can be unconstitutional because it violates the basic structure (if judicial review is part of the basic structure, than how can 227(4) and 136(2) be consistent with that?). The Court, however, did not make this argument at all. Instead, it first affirmed the proposition that the Armed Forces Tribunal Act cannot take away the jurisdiction of the High Court under Articles 226 and 227 (paragraph 25).

The Court then cited a number of precedents for the proposition that although the jurisdiction of the High Court could not be taken away by any statute, in deciding whether or not to exercise its jurisdiction, the High Court must take into account the legislative intention behind the statute in question. Citing the prior case of Nivedita Sharma vs Cellular Operators Association of India, the Court observed that “when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” (paragraph 25)

But what was the statutory forum in the present case? Here is where the judgment becomes somewhat murky. Paragraph 33 of the judgment is preceded by a heading called “Statutory remedy“. Here, the Court cited the case Union of India vs Brigadier P.S. Singh Gill, and extracted a lengthy set of paragraph that detailed the appeals procedure under Sections 30 and 31 of the Armed Forces Tribunal Act. But Sections 30 and 31, as we saw, provide for an appeal to the Supreme Court. Surely the provision of an appeal to the Supreme Court cannot be the “alternative statutory forum” to the jurisdiction of the High Courts! 

But then what is the alternative statutory forum? The only possible answer has to be: the Armed Forces Tribunal itself. This, indeed, is what the Court implied earlier in the judgment. In paragraph 14, it stated that: “it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court.“

But there is a serious problem here. And that is the L. Chandra Kumar judgment. In that case, as is well-known, a seven-judge bench of the Supreme Court held that Tribunals, as they were constituted an functioning, could act complementary to the High Courts, but not as substitutes. This was because:

“The constitutional safeguards which ensure the independence of the Judges of the superior judiciary, are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.”

This has been a constant position of law. In its recent judgment, striking down the National Tax Tribunals, the Supreme Court based its entire analysis on a detailed demonstration of how the Tribunals lacked the essential qualities of the Courts (judicial independence etc.), that would allow them to serve as effective substitutes.

The Court’s judgment, therefore, is question-begging. It takes the existence of the Armed Forces Tribunal to be evidence of an “alternative statutory forum” that is a “substitute” for the High Courts. On that basis, it holds that while the jurisdiction of the High Courts cannot be ousted, it should not exercise its jurisdiction because of the existence of the alternative forum.

Comments

Since litigation cannot now be taken before the Supreme Court as a matter of right, the AFT has become the only court for military litigants, effectively denying poor soldiers the right of judicial review. But, in contrast, a seven-judge Supreme Court Bench had deemed "unconstitutional" a similar ruling that prevented high court review of rulings of the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SATs).

A jawan living in Tamil Nadu, or Assam, would have to engage a Supreme Court lawyer in Delhi, and bear all the expenses of travel in order to appeal against an AFT ruling.

The AFT was established in 2009 under the Armed Forces Tribunal Act, 2007, as a judicial tribunal that soldiers petition for justice before approaching civil courts.

Legal experts have questioned the AFT's independence, since it functions directly under the Ministry of Defence (MoD). The MoD appoints the judges to the AFT. The Defence Secretary (who is on the panel that selects AFT judges) is also the First Respondent in most cases filed by soldiers, sailors and airmen.

In November 2012, the Punjab & Haryana High Court ordered that the AFT be placed under the Ministry of Law & Justice. An MoD appeal against this verdict is pending in the Supreme Court.

There have been reports of the MoD extending largesse to AFT judges. In a RTI reply, MoD admitted spending over Rs 67 lakhs for "official foreign visits" by the then AFT chairperson and members, and having provided them with unauthorised canteen cards to shop at subsidised military retail outlets. AFT Administrative Members (military generals on the tribunals) are called to army formations to "sensitise" them about cases that they were hearing.

Legal experts point out that, if High Courts can no longer hear challenges and provide redress, the Supreme Court would directly receive a flood of appeals, diverting it from its primary task - to adjudicate on matters of importance and Constitutional issues.

(With inputs from Maj Navdeep Singh’s militaryinfo.com blog)

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CAG’s Report on the Light Combat Aircraft Tejas Fails to Meet IAF Criteria: CAG

The Comptroller and Auditor General (CAG) of India severely criticized the Tejas Light Combat Aircraft (LCA) project, through its report, on 8 May, pointing out that its Mark-I version had 53 “significant shortfalls” in meeting ASR (Air Staff Requirements), which have reduced its operational capabilities as well as survivability. The report titled “Design, development, manufacture and induction of LCA” was submitted to both houses of Parliament on 9 May.

The Indian Air Force (IAF) would be “constrained” to induct the fighter LCA without availability of a trainer model, thereby “adversely impacting pilot training”, the audit body said. The CAG noted that it was due to the delay in the manufacture and supply of LCA that IAF had to go for alternative temporary measures such as upgrading its MiG-21 BIS, MiG-29, Jaguar and Mirage aircraft at a cost of Rs 20,037 crore and revise the phasing out of MiG-21s. LCA Mark-I achieved Initial Operational Clearance (IOC) in December, 2013.

Shortcomings Listed

Listing the shortcomings, the CAG said that the LCA Mark-I failed to meet the electronic warfare capabilities sought by IAF as the Self-Protection Jammer could not be fitted on the aircraft due to space constraints.Also, it said that the Radar Warning Receiver/Counter Measure Dispensing System fitted on the aircraft had raised performance concerns, which were yet to be overcome till January 2015.

It added that the shortcomings in the Mark-I (increased weight, reduced internal fuel capacity, non-compliance of fuel system protection, pilot protection from front, reduced speed) were expected to be overcome in the Mark-II model.

“LCA Mark-I does not meet the ASR (Air Staff Requirement). The deficiencies are now expected to be met in LCA Mark-II by December 2018,” the CAG said.

While DRDO has always showcased LCA, christened Tejas, as an indigenously-developed aircraft and the indigenous content of the LCA was estimated by ADA to be 70 per cent, the CAG said it “actually worked out to about 35 per cent” as of January 2015.

Systems such as Kaveri engine, Multi-Mode Radar, Radome, Multi-Functional Display System and Flight Control System Actuators taken up for indigenous development could not be developed successfully, resulting in LCA’s continued dependence on the import of these systems, CAG said.

Listing out the concessions, the report says waivers were given for increased weight, reduced internal fuel capacity, non-compliance of all-weather operations, non-achievement of single point defueling, fuel system protection and pilot protection.

The CAG said that ADA’s decision to advance the building of two prototypes from Full-Scale Engineering Development (FSED) Phase-II to FSED Phase-I so as to utilise its savings on the grounds of accelerating the development process of LCA had failed to yield the desired results. This, the report said, was because preponed prototypes were deficient in terms of critical onboard systems (Multi-Mode Radar, Self-Protection Jammer, Radar Warning Receiver) and led to ADA using the Limited Series Production (LSP) aircraft (meant for IAF use) towards flight testing/evaluation of these critical on board systems.

“This was in contravention of the Cabinet approval (November, 2001) for phased development of the prototypes in FSED Phase-II after Technical Demonstrators had been built and flight tested for 210 hours,” CAG said.

It said that the long gestation period led to a change of weapon systems on LCA, necessitating the acquisition of new ones.

LCA Mk-2 Will Fulfill ASR

The audit body also had a word of appreciation for the Aeronautical Development Agency (ADA), saying its work centres on the indigenous development of the LCA, “which is comparable to many contemporary aircraft in the world”.

The report went on to add that the delays in identification, replacement and addition of weapons by IAF and their integration as per IAF requirement, to make the aircraft contemporary, also added to the worries.

"In addition, there have been delays in completion of work packages by various work centres, which indicated ineffective monitoring of the project by the Ministry of Defence," says the report.

HAL Delayed Augmenting Production Capacity

Criticising the slow pace of the LCA's entry into service, the report notes that Hindustan Aeronautics' manufacturing facilities can build just four fighters annually against an envisaged requirement of eight per year. CAG overlooks the fact that IAF has ordered only 20 LCAs with another 20 have been promised after the fighter obtains final operational clearance. Even so, HAL is enhancing its production to 16 LCAs per year, a decision that a future CAG report might comment on unfavourably if more IAF orders are not forthcoming.

Development Journey

IAF had proposed in the early 1980s that a new aircraft be developed to replace the MiG-21 fleet, manufactured during 1966 and 1987, after its phasing out in the 1990s.

The project for indigenous design and development of LCA was sanctioned in 1983 at a cost of Rs 560 crore, which was enhanced from time to time up to Rs 10,397.11 crore. Today’s figure of Rs 14,047crore includes the cost of developing both the IAF and naval LCA, covering both the Mark I version as well as Mark II. The air force Tejas Mark I has so far cost Rs 7,490 crore, and is within its budget of Rs 7,965 crore. The government, in June, 1984, constituted an ADA as a dedicated institution for the management of the LCA project.

IAF had issued Air Staff Requirement (ASR) in October 1985, envisaging a light-weight multi-mission fighter with contemporary air combat and offensive air support capabilities and excellent manoeuvrability for close air combat at low and medium altitudes.

The projected requirement was for 220 Light Combat Aircraft (200 fighters, 20 trainers) to be inducted by 1994.

However, LCA could only achieve IOC in December 2013, as against the earlier scheduled date of December 2005.The Full Operational Clearance (FOC), which was scheduled to be completed by December, 2008, is now slated to be achieved by December 2015, although experts say even that could be delayed.

The LCA Design

From the outset, the LCA was based on fourth-generation (Gen-4) technologies. The first of these is its "unstable design", which makes it more agile and manoeuvrable than "stable" aircraft that are designed to hold the path they are flying on.

Design. 

The lack of a horizontal tail is a unique feature of the Tejas, making it similar to the Dassault Mirage series of fighters. The plane also has a delta-wing configuration, which is the reverse of normal delta-wing fighters in that the angle of the sweep of the outer wing section is larger than the angle of the sweep of the inner wing section. The reverse configuration is normally used to balance supersonic and subsonic or transonic capabilities. The Tejas has an angle of incidence from the main axis of the wing, which gives the whole plane a larger dihedral force, improving its supersonic capabilities.

The Tejas uses the V-shaped air inlets typical of light fighters, the air inlets gather together towards the rear, sheltering the blades of the engine's axial compressor, preventing the scattering of radar, and adding to the craft's stealth capabilities. The oval air intakes are similar to the F/A-18C/D Hornet, with a diverter structure around them. All in all the design is in line with convention and has not shown much innovation.

Composite Materials. The Tejas has put an emphasis on reducing weight, and so it has used a lot of composite material. Forty-five percent of the plane's total weight is comprised of composite materials, including the fuselage, its vertical tailfin, the skin, the spars and the ribs of the wings, the elevons, the rudder, the air brakes and the landing gear doors. This cuts the plane's empty weight by 5.5 tons. The result is a lighter fighter that can carry more fuel and weapons.

Power Plant. 

The original plan for the LCA Tejas was that it would be fitted with the GTRE GTX-35VS Kaveri turbofan engine, but the development of the engine ran into a hitch, so they had to adopt the F414 instead. The engine was developed on the basis of the General Electric F404 and has an axial compressor with three fan and seven compressor stages and a turbine with one low-pressure and one high-pressure stage. Compared with the F404, the F414 has augmented thrust by 35%, pushing it to 60 kN military thrust and 98 kN with afterburner. Its thrust-weight ratio has been pushed to 9:1. India purchased the custom-made F414-GE-INS5 model, which has similar capabilities to the F414-GE-400, with a fully digital control system, making it quicker to react and more accurate.

Avionics. The LCA Tejas' avionics system has a top-down design and has made use of line-replaceable unit technology, ensuring smooth coordination and the minimum degree of interdependence. The Tejas' avionics system was designed by France, with three 1553B serial buses and two centralized 32-bit, high-throughput mission computers, including a communications subsystem, a mission subsystem, a self-defence system and a guidance and flight system. It uses ELTA's EL/M2032 radar system, which works in the X-band range, designed for both air-to-air and ground strike missions. It is effective within a range of 37-75 km. The LCA has "microprocessor-based utilities", which means that computers control all its on-board systems like fuel, weapons and environment control.

Glass Cockpit. 

The LCA has an all-glass cockpit, in which conventional dials are replaced by intelligent multi-function displays, and the pilot can fly, aim and operate weapons through a helmet-mounted display.

Flight Control System. 

The flight system of the Tejas has a complicated origin. Originally the aircraft was set to be equipped with a FADEC system developed jointly by Lockheed Martin and India, however, an Indian nuclear test led to sanctions being imposed against the country, ending the US-Indian cooperative endeavour. India then looked to Russian aircraft manufacturer Mikoyan and Moscow Air Production Organization for help, until the sanctions were revoked in 2001. India then ordered actuators from London-based BAE Systems, which were handed over in 2003. Then Lockheed Martin joined the development project once again. This lengthy process slowed down the entire development of the aircraft. It is believed that the flight control system is a match for the F-16C/D Fighting Falcon's relaxed static stability/fly-by-wire flight control system.

Combat Abilities. 

The LCA Tejas has just entered service and not developed its combat abilities as yet, so the only way to compare the two is to look at the weapons they will likely use and their weapon pylons. The LCA Tejas will likely be equipped with the Israeli Python-4 air-to-air missile and the Derby medium-range active radar homing missile. The CAG report points out that in December 2009, IAF asked for the R-73E air-to-air missile to be integrated with the LCA's radar and the pilots' helmet mounted displays. CAG also blames IAF for taking too long to identify a "beyond-visual-range missile" for the LCA.

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