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
