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Tuesday 18 September 2018

AFSPA, Judicial Activism and National Security



Dear Chief justice of India,

It is only appropriate that before voicing my opinion on Army operations in AFSPA controlled areas of the country, I begin the dialogue by quoting a famous Army General, General Patton of IInd World War fame. He said while addressing a segment of Allied soldiers; I quote

“No Bastard has ever won a war by dying for his country; He has won the war by making the other bastard die for his country” unquote.

I would humbly request the pseudo human rights activists, members of the only self serving and self appointing judiciary in the democracy ruled world and pseudo military strategists of our great nation (who have seen the war only in Hollywood productions) to keep the above statement of fact in focus and pause before commenting on so called ‘excesses’ by Army personnel in areas, where AFSPA has been ‘IMPOSED’ by the CENTRAL GOVERNMENT and not by Military. Judicial intervention (read judicial activism), filing of FIRs and CBI enquiries against Army personnel involved in national interest of eliminating/containing insurgency is a matter of concern as is quite evident by the actions of nearly 400 Army personnel deciding to approach the highest court to put a stop to this anti-national practice at the behest of subverted local politicians.

Mr Chief Justice, judicial activism has never done any good in any nation. In patches, acts of judicial activism may have done some good for some time. But largely judicial activism has a ‘NEGATIVE’ influence/effect on society in matters of ‘GOVERNANCE’. A classic example of Judicial Activism gone horribly wrong is the provision of filing PUBLIC INTEREST LITIGATION (PIL). No doubt in few cases the PIL has been used for the benefit of the society but lately it has been abused and used to settle issues that are not even remotely connected to public interest.

Domain of a Judicial Officer is confined exclusively and in entirety to delivering judgments based on facts presented in front of him/her according to existing laws. Judiciary has no direct role whatsoever in governance. It is the duty of legislature and executive.  Mr Chief Justice I hope you and your clan knows that war does not have any rules and laws. Wars, always and every time are fought to win. There is no prize money for runners up unlike in US open Tennis or Wimbledon.

Let me take you back to pages of history. Insurgency in Ireland and Israel was and has been controlled after having paid an extremely heavy price on life and property. In both cases the success has been achieved due to three reasons.

‘MORTAL’ FEAR OF REPRISAL BY SECURITY FORCES, IF THE LOCALS WERE FOUND TO HARBOUR/ASSIST INSURGENTS. ACCOMPLICES WERE TREATED AS TERRORISTS.

Resulting in

LOCAL POPULATION’S DENIAL TO HARBOUR/SUPPORT INSURGENTS.

and

NEAR TOTAL ABSENCE OF JUDICIAL INTERVENTION NOTWITHSTANDING THE CRIES OF HUMAN RIGHTS ACTIVISTS.

States are governed in democracies by strict adherence to rule (read fear) of law. Let me define fear. A normal person requires about 18 inches wide passage to walk straight at ground level. But if the same ‘passage’ is raised to 200 feet, no normal person would dare to walk on it. That is fear based on rational inputs of risks involved. Same analogy is applicable in case of an ordinary citizen thinking/conspiring for aiding/abetting misdeeds and anti-national acts of insurgents. It is the ‘fear’ of reprisal by security forces that keeps them insulated from co-ordinating with anti-national elements. Mr Chief Justice this fear is a desirable element for maintaining peace and tranquility in public life and cannot be termed as violation of human rights.

Mr Chief Justice, you and your ilk have never seen ‘BLOOD’; you have never seen widows in early twenties; you have never seen orphaned infants and disabled parents, whose only support was the strapping young father/son in the prime of his youth eliminated by the anti-nationals supported by local population. You do not rather you cannot understand the trauma. You  only read/hear/see it as a piece of news item.

It is in that context I submit to your wisdom and intellect that judicial intervention in cases of ‘so-called’ EXCESSES by the Army personnel involved in containing insurgency is not only undesirable but an act that will/is undermining national security and can be termed to be synonymous with anti-national act. Let me hasten to add that indeed there would be occasions of use of excessive force but not by choice. In any case “GEHUN KE SAATH GHUN BHI PISTA HAI”. A lesson in psychology to understand the psyche of the soldier fighting in a 360 degree hostile environment would do a lot of good to judicial officers.

Let me yet again revert to events in an actual war scenario. You must be aware of My Lai massacre during Vietnam War by a member of US Armed Force, Lt Kelly. He massacred women and children in the village of My Lai for hiding/supporting Vietcong insurgents. He was later court martialled by a US Military court and imprisoned. But that is only one part of the story. The more relevant part of the story is that after Lt Kelly’s (so called indiscreet and indiscriminate) action the fatality rate of US soldiers dropped substantially. Lt Kelly defended his actions by calling the accomplices (the villagers) as terrorists. I am not defending Lt Kelly’s actions.

Have you got the message? Let me state it in words. No insurgency in any part of the world can sustain and flourish unless it has local support. Our Army faced similar situation in Sri Lanka during Op Pawan but there was not a single ‘My Lai’. Indian Army is one of the finest trained Army of the world. Their humanitarian contribution during natural and man made disasters in India needs no mention. It is only too well known.

Let me narrate yet another incident. During the gulf war a US Marine Sergeant, a woman, was on guard duty about 500 metres from the entry/exit gate of US Soldiers residential quarters, somewhere in Afghanistan. She saw an old (nearly 70 years) man carrying a small bag pass her post and settle down on the sandy bank of the track few hundred meters from her post with his back towards her. She watched him for a while and SHOT him through his back. On investigation it was found that he was planting an IED set to explode at the time of troops movement outside the complex. Do our judges know the full form of IED?

Now a bit about J&K, valley in particular. The year was 1972. 1971 war was barely over. I happened to be in Srinagar in June 1972 staying at Badami Bagh Air Force Officers Mess. During my stay I purchased a walnut table lamp. Within few days the bulb holder cracked and broke. I took the lamp to local shop keeper.  On seeing the broken lamp, what and how he told me left me completely astounded. While holding the walnut portion in one hand and plastic holder in other hand, he said and I quote “Sahab yeh walnut ka tukda hamare mulk mein bana hai aur yeh (holding the plastic holder) aap ke mulk mein” unquote. I leave it to your judgment to reach the inference.

At the core of J&K problem lies the quality of political leadership provided thus far. Political leadership provided by the Abdullahs and Muftis in the state of J&K cannot even be termed as despicable. Oxford dictionary has no adjective, which can define something below the level of despicable. They cannot be trusted because they are perfect incarnation of the ‘character’ of Hindi saying “Muh mein Ram Bagal mein Churi”. For their personal gains they have destroyed the fabric of the erstwhile state of J&K.

This communication addressed to you personally is on account of criticality of the situation created due to undesirable judicial intervention forcing a large group of Army personnel approaching the highest court. It has taken me sometime to pen my thoughts on the issue of nearly 400 Army personnel going to court to ‘REQUEST THE HIGHEST COURT TO ALLOW THEM TO DO THEIR JOB OF PRESERVING NATIONAL SOVEREIGNTY AND INTEGRITY’, because I wanted to read the contents of their petition, which is as follows:-

Whether the rights of a soldiers have been violated vide an order passed  in Writ Petition No 129/2012 without giving fair chance to the personnel involved in the operations  to represent on  the orders to institute prosecution against them when Govt of India has justified their stand and vicarious liability.
Whether the officers who lead their men in extremely difficult amd trying circumstances be given clear directions and so as to enable them rather than chastise them at a later stage while operating in such areas. Superseding or editing the army manuals and precis be done with respect to the initiative taking qualities and tactics that have been carefully thought of and carved to guide them in their selfless aim  to curb the militancy or terrorism for protecting the sole interests of the country.
Whether the Indian Army which has never failed their country  having  past glorious history of sacrifices and martyrdom find themselves standing alone and helpless with their men in the areas under AFSPA in a confused state of mind that if they do’nt follow the orders they will be tried by Court Martial and if they do they will be prosecuted by criminal judicial system and  legal harrassment with their families  who also sacrifices and live in seperation.
Whether this is not the question of national security when the soldiers are put into such legal harrassments which would lead to their eventual loss of morale or motivation for endeavours that were aimed for protection and selfless service to the motherland based upon an act passed by the parliament of India which assures adequate legal and physical safeguards.
Whether the discretion of an offr and Non commissioned offr while discharging their duties granted by the law under section 4 of AFSPA is absolute and grants protection from prosecution or  subject to legal scrutiny even when those actions were established through enquiries to be done in discharge of their duties.
Whether it was correct to believe that military operations are compared with the police operations or urban mafia without even going to the details of circumstances under which these operations are conducted which are very difficult with respect to the jungle and hilly terrain on a daily basis with no guarantee of returning alive or together in one shape and also to the fact that the Hegde commission has no such member with an experience of such operations in  such a  tactically challenging environment.
Whether it was correct by the court to conclude and call the soldiers ‘murderers’ even  when the investigations were not concluded during updates presented by Director CBI indirectly suggesting an ab initio prejudice against the soldiers.
Whether such an act will not amount to creating indirect influence in the mind of investigating agencies to act fairly during investigations of these old cases.
So much has been written and spoken about the event but without explicitly mentioning the contents of the petition. Mr Chief Justice, may I ask you as to which part of the petition (prayer) violates the contents of Article 32 of the constitution. Now that I am talking about constitutional provisions, I would like to state that only a SOVEREIGN STATE can have the constitution. A pseudo intellectual, who considers himself to be a military strategist, has contested Army’s claim of SOVEREIGNTY being above the constitution, while castigating Army personnel for going to court. To be honest even a few senior military officers, too, have admonished the personnel for going to court and termed it as insubordination. To them may I humbly submit that they need to learn the legal meaning of the term ‘INSUBORDINATION’. It is never too late.

Since this post will be read by non judicial and non military personnel as well, it is pertinent to add that AFSPA came into existence in 1958 to cover up for the deficiencies and collective incompetence of politicians, executive and judiciary with regard to providing effective administration. Military did not make a request for such provisions.

Hence on one hand the powers that be ‘beg’ the Military to bring the situation under control but on the other hand your ilk has the audacity to challenge, question and even order conviction of military personnel for supposed excesses committed by them. Incidentally Mr Chief Justice there are numerous cases of Army punishing the officers and men found to have exceeded their brief. In addition what makes you or for that matter anyone else to question the fairness of Army Courts? Have you and your types descended from Mars that the entire professional integrity with regard to passing judgments has been bestowed on you and your types? You are merely doing a job for which government of India pays you adequately. Judiciary cannot, should not and must not bend to political pressure and penalize an honest soldier.

Mr Chief Justice can you in your capacity as the head of judiciary in India make a commitment similar to what Secretary of Defence made to men of US Armed Forces listed below:-

While addressing the U.S. Naval Academy in April 2010, *Secretary of Defence Robert M Gates of USA had said, “* *You have answered the trumpet call. For my part, I consider myself personally responsible for each and every one of you as though you were my own sons and daughters. And when I send you in harm’s way, as I will, I will do everything in my power to see that you have what you need to accomplish your mission – and come home safely.”*

I will not hazard a guess on whether you personally and Indian Judiciary collectively can make such commitment and honour it. I leave that to your personal and professional integrity.

Judicial Activism is hurting the nation in many ways and must stop forthwith. To quote cabinet minister Sri Arun Jaitely, a renowned legal luminary himself “The Supreme Court is increasingly, and controversially, asserting control over the executive and legislature”. And now over the Military as well. Where are we headed for Mr Chief Justice? None of us individuals or institutions are greater than the nation. In the past the highest court has already messed up on numerous occasions. Hazratbal fiasco is one such incident. The Supreme Court has made an order even in a military operation. In 1993, the Court issued orders on the conduct of military operations in Hazratbal, Kashmir where the military had as a matter of strategy restricted the food supplies to hostages. The Court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “ For the first time in history, a Court of Law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation .”

May I request you to direct the judicial officers to confine themselves to their area of expertise and jurisdiction. Let them not consider themselves as the ‘super’ military strategists commenting on the conduct of Army operations to flush out the insurgents. Leave it to Military.

You cannot remain a mute spectator to the goings on. Your intervention is an absolute must to restrain rather forbid the judicial officers to stop cornering the soldiers, who live by the sword everyday of their life. I am not saying that we in the military are special. We are ordinary people ready to die for the nation. How many judicial officers or for that matter from any other profession would have the moral courage to say the same.

 That is what makes us in the military special.

Mark my words; if judicial activism does not cease forthwith, the nation will pay an extremely heavy price entirely due to incompetence and swollen headed approach adopted by the judiciary while dealing with actions of Military personnel involved in fighting insurgency.

May I recommend the following:-

Firstly, If the collective wisdom of legislature, executive and judiciary feels that Army personnel operating in AFSPA controlled areas tend to cross the limits and violate human rights, please bring a legislation in parliament and repeal AFSPA.

Secondly, If you can neither repeal AFSPA nor ensure safety of ordinary Indian citizen by maintain law and order, would you please confine yourself to your domain and let the Military take care of national security issues, where AFSPA has been enforced.

Please do not treat my observations/suggestions and the court case filed by nearly 400 serving  soldiers in a perfunctory manner. As a soldier I know enough not only about my profession but also about judiciary but as a judicial officer your knowledge of war is at best superfluous. You as the head of judiciary need to understand this. For instance  trauma of Labour Pain experienced by a woman during delivery can never be understood/experienced by a male. The negative under currents that appear to be prevailing in the finest institution of India has been introduced entirely due to undesirable interference by the judiciary. You may like to examine and analyse the reasons for such state of affairs and put a stop to it with immediate effect.

May I humbly submit to you that please do not consider plain speaking as any attempt to undermine the authority of judiciary. My submission relates entirely to the aspect of over reach by few judicial officers while sitting on judgment in cases of supposed military excesses. Isolated cases of use of excessive force by the Military will happen but must either be condoned  or allowed to be decided by military courts. Rape is the only exception.

If we can allow  a proven terrorist to join the mainstream in spite of the fact that he/she took to terrorism voluntarily, why can we not condone an act of use of excessive force by a soldier committed unwittingly in the heat of the moment.

I am not certain if you would accede to either of the suggestions above but unless the practice of trying a soldier by civil courts for having done his duty by putting his life at stake while fighting the insurgents in the most hostile environment stops, the nation must be prepared for extremely adverse security scenario in disturbed areas in near future. If you fail to listen to the advice/counseling, we are only moments away from a situation when a soldier will decline to follow the orders of his commander in the battle field entirely due to fear of judicial persecution, should he survive the war.

Before concluding my write up may I ask you a question. Have you or how many judicial officers have actually seen more than dozen bodies of soldiers in hundreds of parts blown up by an IED planted by insurgents actively supported by locals? I have.

It would not be out of place to advise the Army hierarchy that the collective action of 400 odd Army personnel in deciding to knock at the door of the highest court must not be considered a case of insubordination and/or mutiny. Youngsters have put their careers on the block in an attempt to show the mirror to the nation that judicial persecution of those involved in eliminating anti-national elements of the society cannot be equated with a crime. Nothing should be done that would be detrimental to overall morale of our brave soldiers.

And finally my humble submission to the head of judiciary of the nation;

“Misra Ji main yeh khat aap ko ek Hindustani ki haisiyat se likh raha hoon. Ummeed hai ki yeh aap tak pahunchega, aap padhenge aur is masle par soch vichar aur paramarsh karenge. Meri ilteja hai ki faujiyon ko apna kam karne dijye. Woh apni jaan hatheli par liye bad se badtar halat mein mulk ke dushmanon ka safaya kar rahe hain. Sabhi judge saheban ko mai agah karna chahta hoon ki yadi unhone imandaar, karmath aur insaaf pasand faujiyon ke kaam mein meen-mekh nikalna band nahi kiya to halat aur kharab ho jayenge. Main yeh nahi kahna chahta ki fauj se galtiyan nahi hoti ya nahi hui hain. Galtiyan hui hain aur galtiyan hongi lekin atoot vishwas ke saath main keh sakta hoon ki koi bhi fauji jaan boojh kar apne mulk ke insaan ka katl nahi karega. Jis kaam mein fauji lage huey hain woh kaam na to desh ki police aur na hi judiciary kar sakti hai. Judge saheban sirf fauj ki galtiyon par apni tavajjo de rahe hain. Tavajjo un halat par dijye jis wajah se galtiyan hui.  Aap ko aane wale bavander se agah karne ki niyat se aap ke samaksh apne vichar vyakt kiye hain. Mera irada aap ke kaam mein khamiyan nikalne aur dakhal andazi karne ka nahi hai aur na hi kabhi hoga. Umar mein main aap se bada hoon aur zyada ugte huey sooraj dekhe hain. Ho sakta hai aap mere vicharon se sahmat na hon. Faujiyon dwara human rights violation ke kisse sunane waalon se bhi ek guzarish hai. Apne girehban mein jhaank kar dekhiye aur pehle apne ghar mein human rights violation karna band kariye. Mulk ki baat baad mein kariyega.”

Ek pharsi kavi ke nukte ke saath main apni guzarish ko samapt karunga:-

“what you and I hear are different,

You hear the sound of closing doors, but I of the doors open”

Baki aap ki marzi!

Mr Chief Justice should you have a diametrically opposite point of view to what I have submitted, let us agree to disagree gracefully. But as a soldier I would caution you that you would be ignoring my counsel at your peril; that would  be a national disaster.

“The Military profession is like no other profession. Nowhere else one risks his neck in obedience to orders or risks his neck in defiance of orders”.       Chanakya

God Bless the Indian Soldier

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