MiLords- Have You Not Erred?

VIJAY OBEROI
Monday, May 15,2017

We in the military and indeed the bulk of the citizens of the country, have always looked upon the higher judiciary with great respect.Despite a few ‘bad apples’ in its midst, which were recently found to be infested with the proverbial worms, the sagacity of the higher judiciary continues to be admired.

Lately, however, the over-reach of the judiciary is puzzling to say the least. Although somewhat conversant with some aspects of law, I am essentially a novice to comment on the finer points of law, despite my innate common sense, which comes with professional experience and what one sees, hears, discusses and reads in our media, including the so-called social media, which in my reckoning is doing more harm than good to us all! I do understand that the last aspect will be heavily criticised by those who have succumbed to its many lures but overlooked the negatives!

With the above preamble, despite my reluctance, I feel it a duty to draw the attention of the Honourable Lordships to some jarring judgments that have upset a large number of citizens, particularly the men and women who belong to the uniformed fraternity.

Mi-Lords, let me start by your recent judgement on lodging FIR’s on personnel of the army who kill a terrorist; insurgent; militant; or any person breaking the law of the land while carrying out assigned tasks of neuteralising any and everyone who is spreading mayhem; panic; attacking the military or other uniformed personnel and civilians too; or destroying government or private property.

Mi-Lords, being highly learned person, I am sure you are fully aware that the army; personnel of the Central Armed Police Forces (CAPF’s); state armed police and other police personnel deployed in J&K are waging a new and extremely difficult kind of war against insurgents of all varieties mentioned above, in areas that are highly disturbed, at the express behest and full support of a dastardly neighbour, well-known for its utter hatred for all things Indian.

I am sure that your Lordships are also fully aware that this is a war against an unseen enemy, who sticks to no rules of war or high grade conflict; who is highly religiously motivated by self-serving religious heads, even to the extent of committing suicide because that is what their motivators, trainers and leaders have drilled in their heads over and over, till they have shifted from thinking men and women to zombies of the worst kind.

I am sure your Lordships are also aware that the Indian Army is fighting this vicious war under the rubric of ‘Aid to Civil Authority’, a well-known and formalised doctrine for the army’s secondary role. The important tenets of this doctrine are ‘use of minimum force’; ‘all actions in Good Faith’; ‘adhering to the law of the land’; and always keeping in mind that they are dealing with misguided (a highly inadequate word for these ‘violent’ people) country men and women. All ranks of the Indian Army are fully aware and act under these tenets while conducting operations, but when their own life and the task assigned to them have reached the highest and thinnest point of the needle, then they act, and even in doing so ensure that there is no or least collateral damage.

Even when there was ample scope for a de novo look at the entire issue, when a curative petition had been filed by the government, you chose to uphold your earlier directions of 8th July 2016, wherein registration of FIR against Armed Forces Personnel has been made mandatory for every encounter death. Mi-Lords, is it then not a judgement that completely ignores ground realities?

Mi-Lords, you are no doubt aware of the old well-known saying that “TheLaw is an Ass”. This proverbial expression of English origin, (from a play published by the English dramatist George Chapman in 1654 –‘Revenge for Honour’), calls into question the rigid application of the law and by no means casts any aspersions on the grasp of the law by person(s) pronouncing judgement. Hence, the present issue does not fall into this category either.

However, a point relative to this is that the Armed Forces Special Power Act AFSPA), continues to be in force in J&K; and Section 7 of the Act stipulating that no legal proceedings shall be instituted against armed forces personnel acting in good faith, except with the previous sanction of the Central Government, continues to be operative. So, the young men and women laying their lives on the line cannot understand two diametrically opposite judgements!No officer or soldier wants to kill wantonly, but if there is a threat to the country’s sovereignty, he will either kill or get killed. Surely Mi-Lords these could not have been your intentions.

Mi- Lords, the next issue relates to a land mark judgement by your august court, delivered on 10 Dec 2014 relating to the issue of Broad-Banding or Rounding Off of Disability Pension of all military personnel. In this judgment, you had forthrightlydismissed all appeals of the Ministry of Defence (MoD) made over a number of years and had given full relief to over 800 affected military personnel that forced the Ministry to remove all impediments and give all dues to the affected personnel, with all arrears.

While this was a historic judgement hailed by all, no one perhaps has pointed it out to your Lordships that the MoD, instead of cancelling their policy letter of 31 Jan 2001, chose to wrongly interpret your wise decision and insisted that this judgment was only applicable to those who had filed cases in the Higher Courts, which you had so wisely clubbed together. Resultantly, it has refused to give benefits of your judgment to thousands of others, who were directed to approach AFT’s or High Courts and only then will their cases be eligible for the benefits of Broad Banding! Mi Lords, is this not a travesty of Justice when the highest court in the land has dismissed all excuses and submissions made by MoD?

Mi Lords, I ask you in all humility whether our disabled Jawans can file such suits or need to, when your sage judgment prevails.

My third issue has little to do with the military but has affected businesses and jobs at an extremely large scale. I am referring to your recent judgement MiLords, on imposing a ban on sale of all types of liquor within 500 yards/meters of a National Highway, as an answer to the large number of fatalities in accidents caused by drunken driving. MiLords, notwithstanding your grave concern, this has neither reduced number of fatalities on account of drunken driving nor a reduction of liquour sales, for anyone who ‘indulges’will go the extra half kilometre for it. Does it not amount to “Throwing the Baby with the Bath Water”?

In an era when the numbers of unemployed are increasing because of the inability of the government to create sufficient new jobs, you judgment has resulted in additional large-scale laying off of all categories of staff; brought down drastically the price of property along the Highways and exponentially increased property prices artificially away from Highways. I am sure you had no desire to have such disruptions, but were clearly focused on reducing fatalities on account of drunken driving.

My view as a layman has always been that the government has no business in trying to change how the polity dresses, eats, drinks and carries out its day to day functions. Unfortunately, our political leaders have not learnt this basic issue of governance. Now, the judiciary, as the highest and most important watchdog of the nation has meddled with this aspect, when many other options are available to reduce fatalities.

May I request your Lordships to revisit this judgment too and bring succour to the affected people?

(The writer is a former Vice Chief of Army Staff)



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