The latest terrorist outrage in Kashmir has produced the usual brouhaha in our ruling circles. The genuine outpouring of grief and outrage from the country’s citizens has cut across every social and political divide. The ruling establishment, of course, has joined this mourning and most of the party leaders are clearly genuine in their angst and sorrow. Lamentably, there are still some elements in the country’s body politic whose behaviour has been reprehensible and far from kosher. That is a study that needs to be done on another occasion.
However, even as the last funeral pyres died down, it is quite evident that a genuine and honest autopsy of this terrible tragedy will reveal many fault lines and fissures in our socio-political structure that caused this carnage. Worse, the main factors responsible for incidents like these have had a long and deadly history. They have remained as a scourge on our national body and have survived all attempts at rooting them out. Indeed, they have increased by a process of mutation and acquired a deadly immunity.
This author strongly believes that the two national institutions primarily responsible for this latest assault on our Republic’s basic framework are the higher judiciary as exemplified by the Supreme Court, and the political-administrative combine. It is necessary once again to go through an analysis of how these two forces have operated in the last few decades to produce such a life-threatening and unholy security scenario as the one that India confronts today. For nearly six and a half decades after we nominally gained independence and became a Republic soon thereafter, our national fabric was a miserable patchwork of inequity, inefficiency, graft and misery.
All vestiges of a glorious and exalted culture and civilisation dating back to more than 4000 odd years had been effectively wiped out. Then, in mid-2014, there emerged a glimmer of hope and belief that this land had been given a chance of recovering a modicum of its glorious Indic past within a foreseeable time span. Yes, this indeed was what most of us who supported the new occupants of Raisina Hill believed. Admittedly, our hopes were hyped, despite some notes of caution sounded by analysts who belonged to the Indic civilisation movement but who were also not given to uncritical euphoria. Indeed, this commentator was torn between two competing emotions.
One the one hand, there was this desperate hope of the country having genuinely taken a move in the proper direction. On the other, there was the cold and dispassionate realisation that very powerful and potent forces were still lurking in the shadows to prevent a genuine course correction by India’s ship of state. In an article a year ago, this analyst had written on the socio-political and economic forces that were fighting a virulent battle against the new dispensation in order to preserve their bailiwicks.[i]
One of the nation’s three constitutional pillars, the Supreme Court (SC), allied with the various High Courts (HCs), collectively referred to as the higher judiciary, had acquired enormous clout and power over the years. Much of this was legitimately conferred on them by the Republic’s Constitution that had been crafted by renowned jurists, scholars and statesmen after an enormous amount of research and reflection. However, in recent decades, the higher judiciary had steadily encroached on terrain that the founding parents of the Constitution did not grant to it.
Admittedly, this process of “judicial overreach”, as it was rightly designated by many learned observers, was also because the political wing in our country functioned so miserably and inefficiently. The vacuum in the nation’s structure could not remain unfilled and it was ripe for the judiciary to step in and claim it as its terrain. I was constrained to write an essay that pointed out the serious pitfalls for the country for such land-grabbing to take place.[ii]
To return to the latest tragedy, let us go back to the sad steps taken by the SC that have virtually made our armed forces run a one-legged race, or as some observers have said even more frankly, compelled our military to fight the enemy with one hand tied behind its back. More than two and a half years ago, the SC literally ventured into a minefield and critically compromised India’s defence structure. I refer, of course, to the judgement of the apex court in the Armed Forces Special Powers Act (AFSPA) case in July 2016 (Extra Judicial Execution Victim Families Association (EEVFAM) & Anr.Vs. Union of India & Anr. [Writ Petition (Criminal) No.129 of 2012].
On the basis of a case filed by the families of persons allegedly killed in “encounters” by security forces in Manipur, Justices Madan B Lokur and U U Lalit had ruled that every allegation of use of excessive force by the armed forces or state police in Manipur that had caused deaths of individuals must be investigated. The SC even took upon itself the task of monitoring the probes into the deaths of more than 1,500 persons who were allegedly victims of alleged extra-judicial encounters.
As was expected, subsequent appeals by the Union of India through Review and Curative petitions against the 2016 verdict were turned down by the SC. The fall-out from this innovative judgement came very soon. On the 27th January 2018, a violent mob in Shopian in Kashmir had surrounded and attacked an Army convoy belonging to 10 Garhwal. The rioters threw stones at the military vehicles and tried to lynch a Junior Commissioned Officer, after which warning shots were fired. This had little effect and the encircled soldiers were, therefore, compelled to open fire on the violent mob, as a result of which three rioters died.
The J&K Police, under instructions from the state government (then headed by Mehbooba Mufti), registered a First Informtion Report (FIR) against the Commanding Officer of the Army unit, Major Aditya Kumar, who was not even present at the spot. Appalled by this blatantly illegal and inequitable decision, the father of Major Kumar, Colonel Karamveer Singh, a veteran of the Kargil War, filed a petition in the SC, to stop this travesty of justice. The good Colonel prayed to the apex court to quash the FIR, by asserting that the Army unit was only discharging its bona fide duties under the law to protect government servants and property. It must be pointed out that the Union Government and its Defence Minister, Smt.Nirmala Sitharaman, did not lift a finger to put a stop to this charade.
The distraught father emphasised before the Supreme Court that he was compelled to file his petition on behalf of his son in order to protect the “morale of the soldiers of the Indian Army, who are facing enormous odds in the performance of their bonafide duties” and “to uphold the dignity of the Indian flag”. The Colonel questioned why no FIR had been registered against the violent mob. The apex court found it difficult to dismiss a petition like this and ordered interim protection to the young Major. Given the labyrinthine progress of court cases in our country, one is not sure how long it will take for the shadow of the legal menace on the young warrior to be finally lifted.
Thereafter, even more significant developments took place. In mid-2018, two groups of serving Army officers and soldiers approached the Supreme Court in two different petitions and sought protection against criminal cases that might be instituted against them for merely carrying out their legitimate duties in insurgency-hit areas. These soldiers pleaded before the apex court that there should be no dilution of the provisions of the AFSPA that protected them from prosecution without the express sanction of the Union Government. Whatever glimmer of hope one had of some justice from the SC was shattered on the 30th November last year when the apex court dismissed these petitions.
Earlier, the Bench of Justices Madan Lokur and U U Lalit were urged to recuse themselves from hearing the petitions because their previous judgement had jeopardised any chances of the officers in the dock in Manipur being declared innocent by any court of law. They had refused to do so, and finally they dismissed the collective petitions on merit. Messrs Lokur and Lalit did not stop here. Without apologising for mixing metaphors, this writer would say that the judges poured vinegar on raw wounds and threw the ball back to the Union Government’s court, saying that the latter should take steps to protect the legitimate concerns of soldiers and this was not the job for the court.
Incidentally, Shri Lokur, along with some of his sitting brother judges, had organised a press conference in January 2018 criticising the-then Chief Justice of India for some of his administrative decisions. Such a move was unprecedented in Indian legal history.
Unfortunately, there is an even more sinister legal backdrop to the Pulwama tragedy. During discussions on the event that tried to analyse how such an attack could have taken place, legitimate queries were posed about how a civilian vehicle could breach the security of a large convoy of vehicles of security personnel. Therein, lies the terribly sad history of the Indian state victimising Army personnel for merely performing their duty. This outrage has been covered by a number of reports in various publications.
In November 2014, some local teenagers crashed into Army check posts one after another, despite repeated warnings by the soldiers manning the posts. When the car approached the third post, the soldiers were compelled to open fire. The State Government was then run by Omar Abdullah, who put enormous pressure on the Union Government which buckled ignominiously. Both the-then Defence Minister Arun Jaitley and even the Prime Minister took part in the disgraceful charade of sacrificing the poor soldiers at the altar of political expedience (read “Abdullah placating his bloodthirsty vote-bank”). [iii], [iv]
The immediate repercussion of this incident was the dilution of any steps that soldiers can take against violations of unauthorised movement of civilian vehicles when military convoys are passing through.
There are reports that the 4 soldiers involved in the November 2014 incident are still in Tihar Jail. If this is true, there will be a lot of red faces in Raisina Hill.
Logically, this brings us to the concluding segment of this essay that focuses on the grossly venal and egregious policies and postures that our netas and babus have adopted for decades against the country’s sword-arm.
Over the last seven decades, the list of dishonour heaped on our warriors by the babu-neta clan should be briefly listed: (a) persistent downgrading of the military in terms of emoluments, privileges and status, as compared to the babus (b) shameful conduct by the Union Government, through the Ministry of Defence, to wage court battles against armed forces personnel, even when the Government’s stand is manifestly weak and indefensible (c) abysmal failure to provide and procure necessary military hardware, even when the armed forces have been found to be critically deficient in many areas, particularly in their ability to confront dual threats from Pakistan and China simultaneously (d) making the armed forces subservient to the bureaucracy under the pretext of the military being under “civilian control” (e ) as a corollary of the earlier category, failing to institute the post of Chief of Defence Staff, reporting directly to the Defence Minister
Many friends of mine, both in our shores and overseas, have repeatedly asked me to offer some explanation for this abysmal and shameful conduct of our netas and babus with our armed forces. I have tried a lot to come up with weighty reasons. However, to put it bluntly, no suitable explanatory framework has emerged. One cannot but hypothesise that one of the major reasons that lead the politicians, the bureaucracy and the judiciary to downgrade our military is the overwhelming respect and support that the Indian public routinely and steadfastly extend to our armed forces.
This has been proved time and time again – the fauj is miles ahead of the other organs of the Indian state in the eyes of our citizens. Therefore, pulling down the military is fair game in the eyes of the others in the race. Ultimately, it is conceivable that the simplest explanation may suffice, when other sophisticated theories do not fully pass muster. However, will our Indic civilisation ever regain its glory if this lamentable state of affairs continues? More critically, can it even survive in the present international security scenario? No apologies for being realistic. The jury is out.
[i] https://swarajyamag.com/magazine/why-the-lutyens-mafia-is-a-threatened-lot-today
[ii] https://swarajyamag.com/ideas/judicial-overreach-is-perhaps-the-softest-possible-description-of-the-crisis
[iii] https://www.hindustantimes.com/india/army-set-to-punish-4-for-budgam-encounter-killings-in-kashmir/story-UmzsFmWSCVVG3d6WpiPiIL.html
[iv] https://www.ndtv.com/india-news/government-acted-against-army-men-accused-of-shooting-teenagers-pm-modi-710294
Featured Image: Indian Express
Disclaimer: The opinions expressed within this article are the personal opinions of the author. IndiaFacts does not assume any responsibility or liability for the accuracy, completeness, suitability, or validity of any information in this article.
Jay Bhattacharjee is an advisor in corporate laws and finance, based in Delhi. His other areas of interest include socio-political issues and military history. He has been a commentator and columnist from the mid-1990s