National Security At Heart Of Agnipath Scheme, Fitter Force Needed Against Border Skirmishes: Delhi High Court

Upholding the union government's Agnipath scheme for the armed forces, the Delhi High Court on Monday said it can conclusively state that the scheme was made in national interest to ensure that armed forces are better equipped. 

Referring to the skirmishes on the borders, the division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that such transgressions exacerbate the need to have a leaner and fitter Armed Force which is capable of handling the mental and physical distress that accompanies service in the Armed Forces. 

The court called the scheme a well thought out policy decision by the union government and said rather than focusing on the "alleged political motives" of the scheme, it is necessary to focus on the benefits that are being provided by it.

It also said that policy decisions, particularly those which have wide-ranging implications on the nation's health and security, should be decided by bodies best suited to do so.

"It appears that the Government has been considering, for a long time, the possibility of creating an Armed Forces which consists of more youthful, agile, and physically adept individuals. Upon considering the opinions of experts bodies, defence personnel, and carefully studying the models adopted by other nations, it has decided to finally replace the prior mode of recruitment with the recruitment envisaged by the Agnipath Scheme. Considering that the stated objective of the Government is neither discriminatory nor mala fide, or arbitrary, this Court finds no reason to interfere with it." 

Policy Decision

The court said it is well settled that scope of judicial review does not extend to excessively questioning the policy decisions of the government, unless they are arbitrary, discriminatory or are based on irrelevant considerations.

Relying on the various precedents on the question of court's interference on policy decisions, the bench said it is exceedingly clear that the court does not interfere with policy decisions pertaining to national security in normal course, as it is not best placed to take such decisions. 

"Policy decisions with regard to national security are taken after careful consideration of the socio-political scenario of the country, along with the socio-political scenario of the border countries. Further, a measured analysis is undertaken when it comes to application of schemes propounded by other countries to the conditions in India. The Courts cannot and should not delve into the appropriateness of such policy decisions and, thus, endanger one of the most important aspects of the basic structure doctrine, i.e., the principle of separation of powers." 

The court said that while exercising its powers under Article 226 of the Constitution of India, it cannot consider alternatives to the Impugned Scheme.

"The formulation of the Scheme is an exercise of the "sovereign policy-making functions" of the Central Government, which ought not to be interfered with unless on the settled principles discussed above," it added.

The court added that policy decisions, particularly those which have wide-ranging implications on the nation‟s health and security, should be decided by bodies best suited to do so. It appears that the Government has been considering, for a long time, the possibility of creating an Armed Forces which consists of more youthful, agile, and physically adept individuals, it added.

"Upon considering the opinions of experts bodies, defence personnel, and carefully studying the models adopted by other nations, it has decided to finally replace the prior mode of recruitment with the recruitment envisaged by the Agnipath Scheme. Considering that the stated objective of the Government is neither discriminatory nor mala fide, or arbitrary, this Court finds no reason to interfere with it," said the court.

Salient Features

However, the court went on to analyse the salient features of the scheme and said the Impugned Scheme, as stated, is a recruitment-generation scheme which will satisfy a large number of unemployed Indian youth and 25% of the Agniveers will be allowed to continue in the Armed Forces beyond the period of 4 years.

"This has been done by the Government in order to meet the objective of creating an Armed Force which is agile, youthful, physically fit, and mentally alert. This will bring the Indian Armed Forces in line with nations such as the inter alia United States, United Kingdom, and France. The importance of creating such a force has also been brought to the attention of this Court," it added.

The court further said Agniveer Scheme will increase the "leader to led" ratio from 1.1 to 1.28; a ratio that would inspire confidence, and would ease the pressure of the forces on ground.

"Expert opinions have also been sought on the Impugned Scheme; who have in fact suggested the revamping of the existing in-take and retention scheme as well. Considering the fact that the laudable objective of maintaining national security is at the heart of the Impugned Scheme, this Court does not find it arbitrary, capricious or devoid of reason."

The court also noted that a number of Agniveers will be absorbed by the Public Sector Undertakings and other government establishments on various posts. They would also be given various certificates which would enable them to secure a job in the government and PSUs, said the court.

"Working with the Army for four years will definitely instil a feeling of nationalism in the Agniveers which is important for the youth of the country. This feeling of nationalism will be a major deterrent for these persons from resorting to crime in the future," said the court.

The court further observed that four years training period would also instil a sense of nationalism in these personnel that would more or less prompt them to use their skills and focus on the development of the country.

"Such advantages cannot be overlooked and dislodged on the basis of the apprehension that after four years such individuals may be unemployed or the mere apprehension that they may take to illegal or unethical activities, after being trained in the Army. This Impugned Scheme cannot be interfered with by this Court only on the basis of such apprehensions and bald averments," it added.

On the argument that Agniveers would not be given pension at the end of four years, the court said:

"Such pension, it has been contended, is being extended to soldiers from other nations which have deployed similar short term services in the Armed Forces. However, the Petitioners have failed to realise that a principal distinction between nations such as Israel, which have deployed such a policy, and India, is that the Indian Government has not made it mandatory for the youth of the nation to serve in the Armed forces." 

The court rejected the argument that the Government has failed to make provisions for the meaningful employment of Agniveers in the future. 

"As stated earlier, the Government has in fact sought to extend entrepreneurship financial schemes such as MUDRA and Start-Up India to Agniveers as well. Furthermore, the Government has avowed to give Agniveers priority in government organisations; 10% reservation has been made for Agniveers in the Department of CAPF under the Ministry of Home Affairs, 10% in all the Departments under the Ministry of Defence, and 5% in all the Departments under the Railways. Material on record also discloses that the Impugned Scheme will not only provide opportunity for youth to serve the country but will also result in the Armed Forces having the most capable individuals who will be rewarded with a decent financial package and a bright future."

Title: HARSH AJAY SINGH v. UNION OF INDIA AND ORS and other connected matters

Citation: 2023 LiveLaw (Del) 184

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