ARMED FORCES & JUDICIAL OVERREACH : Do reconsider, My Lords...

SOURCE:
http://www.tribuneindia.com/news/comment/do-reconsider-my-lords-/410620.html




                    ON GUARD

    : The Indian Army is responsible

                            and 

     acts only when it absolutely must.

        Do reconsider, My Lords...

                               BY

        Lt Gen Vijay Oberoi (Retd)



Judicial overreach in some cases puzzling





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 overreach of the judiciary is puzzling to say the least. 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. 

My Lords, let me start by your recent judgment on lodging FIRs against Army personnel who kill a terrorist, insurgent, militant, or any person breaking the law of the land while carrying out assigned tasks of neutralising any and everyone who is spreading mayhem, panic, attacking the military or other uniformed personnel and civilians too; or destroying government or private property.

My Lords, being highly learned, I am sure you are aware that the Army, personnel of the Central Armed Police Forces, 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 kinds, in areas that are highly disturbed, at the express behest and full support of a dastardly neighbour, well-known for its hatred for all things Indian. 

Your Lordships must be aware that this is a war against an unseen enemy, who sticks to no rules of war or high-grade conflict; who is 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 certain 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 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, 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 July 8, 2016, wherein the registration of an FIR against armed forces personnel has been made mandatory for every encounter death:-

My Lords, is it then not a judgment that completely ignores ground realities?

My Lords, you are no doubt aware of the well-known saying ‘the law is an ass’. This proverbial expression of English origin (from a play published by 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 judgment. 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 judgments! 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, My Lords, these could not have been your intentions.

My Lords, the next issue relates to a landmark judgment by your august court, delivered on December 10,  2014, relating to the issue of broad-banding or rounding off of disability pension of all military personnel. In this judgment, you had forthrightly dismissed 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 arrears.

While this was a historic judgment hailed by all, no one perhaps has pointed it out to your Lordships that the MoD, instead of cancelling their policy letter of January 31, 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 AFTs or High Courts for their cases to be eligible for the benefits of broadbanding! My Lords, is this not a travesty of justice when the highest court in the land has dismissed all excuses and submissions made by the MoD?

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[ ONLY AN  " ARSE "  WILL FAIL TO SEE THROUGH THAT INVENTING LEGAL CASEs HAS BECOME AN INDUSTRY WITH THE NEXUS OF VAKIL- BABUs  IN THE MINISTRY BESIDES CUTs IN THE PROCUREMENTS.........the list is endless -VASUNDHRA ]

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My 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 a large scale. I am referring to your recent judgment, My Lords, on imposing a ban on the sale of liquor within 500 metres of a national highway. In an era when the numbers of unemployed are increasing because of the inability of the government to create sufficient jobs, your judgment has resulted in additional large-scale laying off; brought down drastically the price of property along highways and exponentially increased property prices artificially away from highways. I am sure you were clearly focused on reducing fatalities on account of drunk 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 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