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Wednesday, November 7, 2018

Defence Ministry’s approach to litigation: misdirected, highly adversarial and sadistic (Parts I & II)


(Originally published for Bar & Bench)

Navdeep Singh

This might be the oddest and the longest opinion piece I have penned, and therefore it is in two parts, albeit being published simultaneously. And again, like many times before, I must forewarn, this is written to encourage discussion and introspection, not to cause commotion, disparage any entity or provide leverage to pessimistic sentiment.

In the late 1990s/early 2000s, as per the then existing roster of the Punjab & Haryana High Court, litigation related to service matters of Union of India was being allotted to Justice RL Anand, a strong but humane and sensitive Judge. While hearing a matter of an old military widow, an observation he made in open Court, not in jest, but in all seriousness, got stuck in my mind. He said, that if a litigant files a writ petition stating therein that the sun rises in the east, the Ministry of Defence (MoD) and the Army would surely file a written statement opposing the plea and saying that it rises in the west. The Judge was of course referring to the blind opposition put forth by the defence establishment in all cases with the singular aim of defeating the other side, sometimes fairly, and at other times by attempting to play smart. Of  course, during those days litigation used to end at the High Court, about a decade later things came to such a pass that the MoD, in its avatar of an insensitive raging bull, ensured by 2014 that more than 90% of its litigation in the highest Court of the land comprised appeals filed against disability benefits to its own maimed and disabled soldiers, at times involving amounts as little as a few hundred rupees, in matters already well settled by law.

While the Army commands utmost respect in our society, and deservedly so, and rightly remains one of the most venerable institutions in all facets, the track record of the MoD in litigation shows utter lack of grace and total absence of moral courage in admitting a fault. The objective solely remains to prove a litigant wrong and wear him or her out by contesting each and every claim, even if covered by existing decisions of Constitutional Courts or by the Government’s own policy, and at times also to subtly inject wrong information in Court proceedings or attempt to colour or influence the proceedings with one-way information by keeping it hidden from the litigant. Litigation is treated highly adversarial as if it is some kind of war being raged against petty employees which has to be won at any cost! Most of the pleas are opposed out of ego and most of the appeals are filed out of prestige. So much so, that this hook or crook attitude to ‘win’ cases has, in the past decade or so, assumed alarming proportions, with patently false information being projected right till the Supreme Court.

The dogged persistence to resist judicial dicta was again visible earlier this week in Lt Gen Manomoy Ganguly Vs Union of India [Writ Petition (Civil) 980/2018 decided on 29-10-2018] wherein the officer, of the rank of Lieutenant General, was made to undergo four to five rounds of litigation to get what he could have been granted in the first go. It is now that the Supreme Court has put an end to his agony.


Some recorded instances of unethical stands in Courts

Even off hand, many cases come to mind where incorrect submissions are, thankfully, recorded in the judgments, for posterity, though this is only a minuscule part of the malaise.

In PK Kapur Vs Union of India (Civil Appeal 4356/2006 decided on 01-02-2007), where the litigant was appearing in person for extension of certain pensionary benefits as provided to post-1996 retirees to pre-1996 retirees also, the Ministry of Defence put across the plea of an Office Memorandum (OM) issued on 3rd February 2000 which restricted the benefits only to post-1996 retirees. However, the MoD deliberately did not inform the Court that the Department of Pensions & Pensioners’ Welfare had already extended the benefit of the post-1996 OM dated 3rd February 2000 to pre-1996 retirees vide a fresh OM issued on 9th Sept 2001. The litigant lost his case and it was only years later in KJS Buttar vs Union of India (Civil Appeal 5591/2006 decided on 31-03-2011) that the correct law was affirmed by the Supreme Court. The MoD however still chose to carry on appealing in cases which were disposed by various Courts and Tribunals citing the decision in KJS Buttar’s case and ultimately it was a Three Judge Bench in Union of India Vs Ram Avtar (Civil Appeal 418/2012 decided on 10-12-2014) which settled the law. It is yet another sad story that the MoD has again filed a similar appeal in the already well settled subject as recently as in July 2018.

In Secretary MoD Vs Ajeet Singh Vs Union of India (Civil Appeal 16/2003 decided on 06-05-2009) the MoD informed the Supreme Court, which is again recorded in the order, that a minimum of ten years of service is required to earn a disability pension, while the truth is that there is no minimum qualifying service required for the said pension and a disabled soldier with even a single day of service is entitled to the same.

In Bhola Singh Vs Union of India (Civil Appeal 4486/2002 decided on 10-10-2010), the MoD informed the Supreme Court that there is a requirement of minimum 15 years of service to earn the “Service Element” of Disability Pension. While doing so, it projected outdated Regulations before the Court and also wrongly cited the regulation for “Service Pension” rather than “Service Element of Disability Pension” while in reality the minimum service requirement for Service Element stood abrogated from 1st January 1973. The same trick by citing Bhola Singh’s decision was sought to be applied in another bunch matter being heard by the same presiding Judge in Union of India Vs Sinchetty Satyanarayan (Special Leave Petition 20868/2009 decided on 23-02-2012) but since this time there were multiple lawyers available to rebut the untruth, the MoD quietly withdrew its appeals and conceded the matter when caught on the wrong foot in the Supreme Court.

In Union of India Vs Karan Singh (Special Leave Petition 37928/2012 decided on 10-02-2014), the MoD filed an appeal in a particular matter of a disabled soldier when the Defence Minister had already directed the withdrawal of such appeals through an explicit instruction. When this was pointed out in the Court by the counsel for the disabled soldier, the appeal was quietly withdrawn by the MoD.

In Air Vice Marshal Harish Masand Vs Union of India [119 (2005) DLT 152 decided on 08-11-2004] wherein the Delhi High Court was dealing with the promotion of senior officers of the Air Force, there was a crude attempt to mislead and misguide the judicial process by filing false affidavits. The Delhi High Court thus observed:

If one carefully goes through the note, the least we can observe is that at such highest level instead of placing the truth, ways and means were devised by XXXXX and others who were present in the meeting to conceal the truth. If this could happen at that level, how the rule of law and faith of the Court in the affidavits filed by the Government would survive. We are shocked that ways and means were devised by an officer of the rank of Air Marshal to hide from the Court what was against the Air Headquarters. It was a fit case where we would have ordered appropriate actions to be taken against XXXXX, however, we were told that he has retired in September this year. Therefore, we do not contemplate any action”.

Further observing the machinations, the Court recorded:

“What affidavit to be filed in the High Court in the present case, how Court should be misled, how truth should not come before the Court, ingenuity on the part of Air Headquarters to deny justice to the petitioner would not have been unrevealed but for a note recorded by XXXXX, Joint Secretary, Ministry of Defence”.

Of course, such attempts have since been made multiple times, especially in cases involving promotions of officers, and have not been appreciated by Courts and tribunals.

In Amar Chand Suhag Vs Union of India (Civil Writ Petition 5041/2004 decided on 11-08-2006), the MoD again projected an outdated regulation to deny benefits to a disabled soldier. When the Court was apprised of the reality, the MoD was fined by the Punjab & Haryana High Court which also recorded the following in the order-

“But we are constrained to observe that the respondents while reproducing the relevant legal provision pertaining to the assessment of disability pension have concealed the Regulations”.

Needless to state, the concealment in this case was not by the MoD per se but by the Regimental Records Office of the Army.

In yet another shocking case of Lt Col RK Rai Vs Union of India (Civil Appeal 3101/2015 decided on 16-02-2018), the MoD chose to contest a case against grant of disability benefits to a disabled officer who had sought premature retirement from the Army despite the fact that the Govt itself had issued a letter on 19-05-2017 authorising disability pension to such voluntary retirees. Though the said letter is fully discussed in the final order of the Court, it is beyond comprehension why the same was contested and not conceded at the outset or even declared infructuous when it was now fully covered by Government’s own policy.

In Union of India Vs Balbir Singh (Civil Appeal D 4893/2018 decided on 09-03-2018), the MoD appealed in matters concerning soldiers of the lower ranks which had already been decided by the Supreme Court and the High Courts. The Supreme Court imposed costs of Rs One Lac and observed-

This appeal was filed well after several similar matters were dismissed by this Court. We cannot appreciate the conduct of the Union of India in this regard of filing civil appeals/special leave petitions after the issue has been concluded by this Court. This is unnecessarily adding to the burden of the Justice Delivery Systems for which the Union of India must take full responsibility.”

Yet again, recently, in Union of India Vs Prithvi Singh (Civil Appeal D 8754/2018 decided on 25-04-2018), the Supreme Court imposed a fine of Rupees One Lac on the Union of India for repeatedly filing appeals in matters finally settled by the High Court and affirmed thereafter by the Supreme Court. The Apex Court observed-

“The couldn’t-care-less and insouciant attitude of the Union of India with regard to litigation, particularly in the Supreme Court, has gone a little too far as this case illustrates....The Union of India must appreciate that by pursuing frivolous or infructuous cases, it is adding to the burden of this Court and collaterally harming other litigants by delaying hearing of their cases through the sheer volume of numbers. If the Union of India cares little for the justice delivery system, it should at least display some concern for litigants, many of whom have to spend a small fortune in litigating in the Supreme Court...To make matters worse, in this appeal, the Union of India has engaged 10 lawyers, including an Additional Solicitor General and a Senior Advocate! This is as per the appearance slip submitted to the Registry of this Court. In other words, the Union of India has created a huge financial liability by engaging so many lawyers for an appeal whose fate can be easily imagined on the basis of existing orders of dismissal in similar cases. Yet the Union of India is increasing its liability and asking the taxpayers to bear an avoidable financial burden for the misadventure...To say the least, this is an extremely unfortunate situation of unnecessary and avoidable burdening of this Court through frivolous litigation which calls for yet another reminder through the imposition of costs on the Union of India while dismissing this appeal. We hope that someday some sense, if not better sense, will prevail on the Union of India with regard to the formulation of a realistic and meaningful National Litigation Policy and what it calls ‘ease of doing business’, which can, if faithfully implemented benefit litigants across the country.”


Attitudinal Problem, putting pressure on officers dealing with litigation and getting personally involved with cases

In a Committee of Experts constituted by the Raksha Mantri in 2015 on sentiment expressed by none less than the Prime Minister to reduce litigation, especially appeals filed by the Government, of which even this author was a member, we were perplexed when many officers came to us with presentations portraying the methods of filing ‘faster appeals’ rather than methods to reduce appeals. Of course, this militated against the very reason why the Committee was constituted. We had to repeatedly question and counsel many officers, while recording in so many words, that litigation was not a war or a sport that they had to score a ‘win’. We also had to regrettably record in the Report as to how contemptuous language was used against the judiciary by certain elements and how suggestions were made to overreach Courts. All this reflects a strange kind of arrogance which is unacceptable in a democracy. Shockingly, proposals were made before the Committee that members of the judiciary dealing with matters of the Armed Forces should be ‘sensitised’ and there should be a consultative mechanism between the executive authorities and Members of the judiciary. Such statements clearly point out to the lack of basic understanding of the concept of separation of powers and that persons in key appointments feel that judiciary functions like some sarkari office where things are done by hobnobbing, interaction, liaison and overreach. It is not even understood by the system, it seems, that within a courtroom, both parties are to present their cases and the bench is supposed to render decision as per law.

As stated in the beginning, it is also very frightening to see the total lack of grace in accepting a wrong in Courts. While officers of many departments including the Ministry of Home Affairs in parallel litigation, have no qualms in conceding when a particular case is covered by existing case law or even admitting any wrong committed, this trait is rarely seen in the case of MoD or the defence services though lot is said about the virtue of ‘moral courage’ in the military milieu. So much so that even senior officers get personally involved in innocuous litigation putting pressure on young officers, including those of the Judge Advocate General’s Branch (JAG) with phone calls, signals and what not! Undue pressure is exerted to ‘win cases’ and officers are questioned when a case is ‘lost’, not realising that in every litigation, one party has to win and the other has to lose and this is an everyday affair in Courts all over the nation.

This undue pressure also encourages young officers dealing with litigation to show over-enthusiasm and at times, over-smartness, which might help in the short run but not in the longer race. Does it behove senior appointments in the military set-up getting intimately intertwined with proceedings of matters on promotions, pensions, minor disciplinary issues, welfare polices etc? Is that the official mandate? Should that be the focus? Aren’t there other real ‘military’ issues to look after? No real battles to fight? While legal officers of other departments including the uniformed services of the Home Ministry act in an autonomous manner in their functioning with full authority to take a stand or decision on behalf of the system, the representatives of the military, on the other hand, are always terrified of their chain of command.  The Government and its entities are supposed to be faceless organisations and there is no reason to get personally involved or individually entangled in cases out of administrative egotism. This fleeting happiness of winning a point by over-smartness such as maintaining ‘shadow files’ or ante-dating documents, creating documents or asking counsel to change legal opinions also might earn one some brownie points and impress certain bosses but the damage caused by these stunts to the institution, its reputation and the morale of soldiers, veterans and military widows is permanent and irreparable. You never know when the shoe shifts to the other foot!

In fact, the attitude of the system in decrying litigants and using accusatory language was very nicely preserved by the Delhi High Court in one of the cases, wherein it observed:

“...It is also necessary to record here, with some regret, that the pleadings of the Army, in this case, were combative and adversarial. References to the petitioner and XXXXX more often than not had an accusatory note. At no point of time does the Army appear to have thought it appropriate, as an institution, to extend sympathy...Would it then have mattered if the Army had officially said "Sorry". It is time for all of everyone to move forward- beyond egos, beyond perceptions of "propriety" (whatever that means in such cases) and as institutions, to reach out to those with hurt feelings. Doing that shows humaneness and courage; stony silence is not machismo. It is hoped that this is a wake-up call for the Army to take remedial measures in such cases...”


Trying to override judiciousness by creating an unreal noise in the name of ‘national security’

A strange kind of behaviour in litigation is also displayed in routine matters such as promotions when officers representing the establishment try to overawe the Court and the litigant by behaving as if they are dealing with nuclear secrets of the State. This attitude, which was never found acceptable in the High Courts, has increased after the inception of the Armed Forces Tribunal (AFT). Officers in uniform, representing the establishment, try to pass on papers in ‘sealed covers’ to the bench to provide a one-sided story to any litigation. Sadly, while the High Courts tend to rebuke such behaviour, this practice has become routine in some of the benches of the Armed Forces Tribunal. In fact, the aim of this practice is very simple, that is, to steal a march over the litigant by overplaying certain documents while underplaying others, since the litigant then has no possible way to rebut what has been placed before a bench. There have been moments wherein in the open Courtroom, officers in uniform have walked up to the bench literally to show documents at the back of the litigant. What image or perception would this project to the litigant or others present in the Court? In the judicial system of a democracy, the petitioner is the dominus litis, but it seems it’s the other way round in military litigation.

What is brazenly incorrect in encouragement of this system also is that while transparency laws are now all encompassing with even cabinet notes open to public scrutiny, here it is attempted to convey to the judicial system as if heavens would fall if a particular case is decided in favour of a particular individual. Noting this behaviour, the Chandigarh Bench of the AFT in Brig Dinkar Adeeb Vs Union of India (OA 2948/2013 decided on 30-08-2013, later upheld by the Supreme Court) had deprecated the conduct of the Military Secretary’s branch in trying to pass on a file to the bench without showing the same to the Petitioner after the case had been argued, and it was stated by the bench that “no such attempt should have been made”. It is not understood as to how can administrative or promotion matters be shrouded in secrecy? At best, the names of other officers in such proceedings can be blurred or blocked and the rest of the papers can be placed on record.

Courts usually only accept documents in sealed cover wherein the security of the nation is involved or if it’s a case with ramifications on relations with foreign powers or an issue involving fiduciary relationship such as contracts etc. This attitude also recently found disfavour with the Supreme Court in Hav Sham Dass D Vs Union of India (Criminal Appeal D 14045/2018 decided on 12-07-2018) wherein the soldier’s services were terminated however he was not allowed to peruse the documents related to his termination on the pretext of ‘national security’. This is what the Supreme Court observed on the matter:

We may only clarify that every single relevant document pertaining to the appellant’s termination will be allowed to be inspected as per the Rule. We make it clear that no document shall be allowed to be denied to the appellant on the so-called ground of national security.

Strangely despite multiple decisions by the Central Information Commission and the High Courts, the ‘opinion and findings’ rendered against delinquent employees are not passed on them in the name of confidentiality. Meaning thereby, the employee must not know what has been found against him/her and on what basis thereby leaving the employee defenceless and groping in the dark. Interestingly, basing disciplinary action on such a faux cloak of secrecy was shattered by the Supreme Court last week in Union of India Vs Col AD Nargolkar (Civil Appeal 10686/2018 decided on 24-10-2018) wherein the Supreme Court noted-

“To top it all, while giving the aforesaid findings, Court of Inquiry (COI) has referred to the 'discreet inquiry' which had found the allegations to be correct. At the same time, this discreet inquiry was not proved before the COI. We fail to understand as to how it could become the basis of findings of the COI when no opportunity was given to the Officer to meet the same.”

Clearly from the looks of what has been in vogue, Courts should be extremely slow in taking the word of certain instrumentalities of the State on face value. It must however be emphatically stated that it is not the Counsel representing the Union who might be at fault, since the lawyers too, mostly, are kept in dark of the reality of it all. In my personal opinion, such transgressions should not be let off lightly by Courts and tribunals merely because the other side presents itself to be hallowed since it deals with national security. Absolutely not. Organisations dealing with the defence of the nation must be held to even greater probity and judiciousness since injustice itself is the anti-thesis of discipline. No entity must be allowed to get away with the thought that certain organisations hold a right to some special privilege, much less the privilege to misguide.

Incorrect litigation data to Ministry of Law and Justice

Interestingly, the jugglery is not restricted to own rank and file, elements of the MoD even have the propensity to confuse their own political bosses and also other ministries. In data provided to the Law Ministry, the MoD reported pendency of only 3433 cases relating to the said ministry, the MoD also reported zero contempt matters. The Data is still available on the official Law Ministry website, See Slide No 6. The truth however is that more than 15000 cases were pending in the AFT alone which can be seen on Page 21 of a Parliamentary Committee Report. Moreover, as on 01-07-2015, about 4390 applications for contempt or execution of orders were pending in the Chandigarh Bench of the AFT alone and the number of contempt or execution applications in other benches, the High Courts and the Supreme Court would be in addition. The data of pendency in the Armed Forces Tribunal in July 2018 was about 17000. Hence, if even the Ministry of Law & Justice can be at the receiving end of manipulation by some mandarins of MoD, what can a common litigant expect? While the Ministry of Law & Justice lists the MoD as the fifth highest litigant based upon the imperfect data provided by it, the fact remains that in service matters, it is in reality the highest litigant since Ministries of Finance and Railways are burdened by tax related litigation/appeals and accident claims respectively over which they have no control. Moreover, while the MoD is known to file appeals in the Supreme Court in matters involving even a few thousand of rupees (if not hundreds), the Ministry of Finance admirably does not appeal unless the matter is worth Rupees One Crore.

While the Supreme Court has called for the government and its instrumentalities always to be responsible litigants, and there is change in the last decade or so as far as many central government departments are concerned, the same has had no effect on military litigation. The attitude is a reminder of the following words on litigation induced by government agencies by the Supreme Court in Urban Improvement Trust, Bikaner Vs Mohan Lal  (2010) 1 SCC 512:

“4...They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.

5. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice....

6. Unwarranted litigation by governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:

(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.

(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision....”


The Government has a huge task at hand. It must not trust what is put up to the political executive by way of file notings from below, blindly. Notes are prepared so as to create a bias in the minds of the competent authorities thereby making wise decision-making an uphill task. The only way to resolve this quandary is to ensure a well-rounded system of consultation with all stake-holders and selected affected parties. In absence of the same, the decision-makers would continue to remain trapped in echo-chambers. 

While we, the ones dealing with military litigation, shall remain, waiting for Godot!



Original links @ Bar and Bench:




Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court, the founding President of the Armed Forces Tribunal Bar Association at Chandigarh, Member of the International Society for Military Law and the Law of War at Brussels and author of ‘Maimed by the System’.


Friday, October 26, 2018

The implication of the adultery ruling of the Supreme Court on the military

I write on the implication of the Supreme Court ruling on adultery on the military for The Quint:

In wake of decriminalisation of the offence of adultery by the Supreme Court of India yesterday, many voices emerged questioning the usage of the term stealing the affection of a brother officer’s wife commonly used in the military. In fact, the decision might have more implications in the defence services than the general society since it is in the former that the charge of adultery is mostly pressed into service and has led to convictions and not the latter.

The term does sound archaic, and irrespective of Section 497 of the Indian Penal Code, should have been dumped long ago. However it must be kept in mind that complications in a military set-up may just not arise out of adultery per se but due to a variety of other situations which might have an impact on military life and discipline and hence the defence services can still initiate action against its personnel under Section 45 of the Army Act (unbecoming conduct) or Section 63 (violation of good order and discipline) and parallel provisions of the Navy and the Air Force, not for adultery but for other complexities arising out of it if resulting in any disruption or difficulties in the aspect of employment of the individual. But one thing is clear, Section 497 which was the source of power of the ‘stealing’ terminology, now cannot be invoked more so in view of the fact that the Supreme Court has rightly observed that women cannot be treated as chattel, personal possession or property.

The issue, insofar it relates to the military, has been subjected to judicial scrutiny in recent times. In 2014, the Mumbai Bench of the Armed Forces Tribunal had set aside the dismissal of a Naval Commander initiated by the Navy on the pretext of unbecoming conduct arising out of adultery and for exchanging lewd messages with a foreigner. The Government had challenged the verdict but the Supreme Court in 2015 upheld the reinstatement of the officer in service. The exchange in Court, between the then Attorney General, Mukul Rohtagi, and the bench, as reported by TheTelegraph, makes interesting reading.

Further, in 2016, the Kolkata bench of the Armed Forces Tribunal comprising Justice Amar Saran (Retd) and Lt Gen Gautam Moorthy (Retd), had made interesting observations on the subject which merit reproduction:

“...the wordings ‘stealing the affection of a wife of a brother officer’ smack of patriarchy and punctilious mindset. While certainly extra marital relations should not only be discouraged and disapproved in no uncertain terms, to hold only one party responsible, that is, the male and not the female who may be as educated, as mature, even older and senior than the male is reflective of a pre-disposed and biased mindset that also assumes that the wife of a brother officer is the property or chattel of the male and not an independent person in her own right who has the freedom to choose to live her life on her own terms. It does not take into account that in a marriage in the 21st century, a well qualified, educated wife especially one in the Services and from a cosmopolitan background who holds the same rank as her husband does have a mind of her own, a free will of her own, may pursue a path, however abhorrent and objectionable to her husband, including having an affair......While not condoning extra marital relationships, we must, at the same time, reflect upon the changing mores of our society. With women joining the Armed Forces in large numbers, working closely and socialising with their male counterparts, it is unreasonable to expect that the Armed Forces would be immune to social changes in relationships between the two sexes, aided in no small measure by rapidly advancing technology. While such issues adversely impact on unit cohesion and ethos of the Services and should be rightly discouraged, the time has come when aspects such as unfortunate break ups of existing marital relationships, consensual relationships with others and infidelity should not be viewed so seriously as to lead to the dismissal or even graver punishments that the IPC and statutory Acts of the Army, Navy and Air Force provide for.”

The appeal filed by the Central Government in the above case was also dismissed by the Supreme Court.

The military cannot be immune to change, the Supreme Court has not offered a moral judgement or condonation or deprecation of adultery but has merely stated that while it may have civil connotations, it cannot be a criminal offence. In my view, the same must also apply to the situation in the military if the matter is consensual and between two individuals without implication on service life. The exception to this proposition however is that in case it impinges upon discipline or other aspects intertwined with life in the military, then it shall always remain open to action under Sections 45 or 63 whenever it impacts such service parameters.


The military community will self-adjust to changing times, this churning and the interpretation of law, as always

Saturday, September 29, 2018

Resisting provocation and retaining moral edge- my oped with Gen Hasnain today

General Hasnain and I discuss the requirement of strict adherence to human rights by the military even while operating under stressful conditions. The co-authored piece has appeared in The Tribune today.

Indian Army- Resisting provocation and retaining moral edge

Circulation of pictures of a terrorist’s corpse is unmilitary

Lt Gen Syed Ata Hasnain
Maj Navdeep Singh


Both authors of this piece were targets of messages laced with scorn on twitter recently when we steadfastly opposed the circulation of an image of a civilian clicking a picture with the corpse of a terrorist in the backdrop, and also of what seemed like the dragging of dead bodies of the same terrorist just after an operation.

To put the record straight, the first picture was utterly detestable and the second was perhaps articulated out of context after culmination of a military operation subsequent to which the dead body of the terrorist had been tied by a rope and flipped to ensure the disposal of explosive which could put troops to risk. On opposition to the circulation of the pictures, we were, inter alia, informed by self-declared experts that the dragging of the body as seen in the picture was a Standard Operating Procedure (SOP) in counter-insurgency operations and also that terrorists deserved no mercy. Of course the commentators forgot in the bargain, that firstly, the picture was not that of the actual SOP being carried out since the same is carried out by a rope at least 30 feet long, and secondly, a dead body ceases to be that of an enemy or a terrorist and is never mistreated, unless we are competing in barbarism with a neighbour of ours. Needless to state, in this case too, the body may not have been mistreated but the presence of civilians with cameras in such a zone is worrisome.

So why do we feel such pictures should not be circulated? If we dig deep into the issue, such actions can have deleterious repercussions. To begin with, such pictures are bound to be used by inimical elements to spread misinformation about our forces thereby depicting them in less than favourable light. Let us not forget that these are times of psychological-operations where messing with the minds of people and injecting hatred is a more potent tool than the gun. We just cannot afford to be an enabling device for the enemy in this dastardly environment. Such pictures, especially the one with a civilian with a corpse, can also lead to a vicious tit-for-tat cycle of violence with brutal photographs and videos being circulated which has been seen elsewhere in the world and is best avoided.

On the dignity of bodies of terrorists, many have responded with the oft repeated refrain that “terrorists have no Human Rights”. This is a dangerous proposition. “Human Rights” is not a dirty word. It regulates our existence and acts as a shield towards misuse of power by any person in authority. What we have always clamoured for, however, is a balance and equal respect for the rights of the men and women in uniform. Had there been an absence of rule of law, the logic professed for terrorists could well be extended to any criminal or perceived criminal thereby justifying mob mentality. In fact, the Indian Army was one of the first armies to have incorporated Human Rights training and monitoring and it would also be in the fitness of things if the military, institutionally rising above any popular sentiment, corrects the perception on social media when it threatens our basic ethos.

The Indian Army has always guarded against desecration of bodies. An apt example is of Kargil wherein, in the middle of the battle, the bodies of the enemy were not only handed over to Pakistan but also saluted by our troops. True, those were bodies of enemy combatants and a direct parallel with terrorists may not be apposite, however let us not forget that this happened despite the most unsoldierly conduct on the body of Late Captain Saurabh Kalia. Some provided examples to us as to how other nations dealt with such situations. But it may come as a surprise to many that most democracies are very sensitive to this subject. Osama Bin Laden’s body was buried-at-sea by the Americans and mistreatment of bodies is akin to a war crime for them. Contrary to popular perception, Israel absolutely forbids disrespect to dead bodies and professes very strict rules of engagement, including prohibition of usage of human shields and maltreatment of bodies which were banned by its Apex Court and dutifully followed by the Israel Defence Forces. In Nigeria, Sierra Leone and South Africa, maltreatment of bodies is a war crime. Even many other African States which have faced gruesome ethnic violence now provide for protection of dead bodies.

The battle zone is not mathematical. There would be a variety of situations which would require split-second decisions. Therefore imposing a zero-error environment might result in inhibiting the initiative of troops. However, there are aspects where there is no compromise. The true mettle of a soldier only comes to fore under stressful situations where he or she must not stray from military values. While the Indian Army would be ruthless in its operations thwarting terrorism, it would also be the most correct in following the rule of law, the laid down procedures, including respect to the dead. The scrupulous adherence to these ingrained principles is why the Indian Army has retained its reputation. The unnecessary chest-thumping on social media by seemingly bloodthirsty warriors who have not gone beyond video games in real life militates against the ethos of our military and would continue to be treated with the contempt it deserves.

Despite extreme provocations, we cannot be like the other side and that is the reason why the Indian Army retains its moral edge, and continues to prevail.



Lt Gen Syed Ata Hasnain is the former General Officer Commanding of the 15 Corps at Srinagar and former Military Secretary.

Maj Navdeep Singh is an Advocate at the Punjab & Haryana High Court and founding President of the Armed Forces Tribunal Bar Association.



Saturday, September 8, 2018

Implications on the Indian Military: The decision of the Constitution Bench of the Supreme Court on Section 377 IPC

EXPLAINER

The implication of the ruling on Section 377 of the Indian Penal Code (IPC) on the Indian Military

Many have posed questions to me on the above subject and my views were also carried by publications and circulated on social media. However I thought I would clarify my opinion on the matter in a more detailed manner:

Since Section 377 of the Indian Penal Code (IPC) has been read down by the Supreme Court of India to the extent of consensual sexual activity, the same implications shall follow on the invocation of the said Section in the military if pressed into service in terms of Section 69 of the Army Act (AA) which entitles the military to try personnel for offences under the general law of the land.

The term “unnatural” as it exists in Section 46(a) AA would have to yield to the same interpretation as has been applied by the Supreme Court for Section 377 IPC. I do not agree with individuals who have commented that the terminology “unnatural” as it appears in Section 46(a) AA needs to be specifically stuck down by a Constitutional Court or repealed by the Parliament. It has already been held by the Supreme Court that homosexuality is not “unnatural” and hence it does not lie in the mouth of anyone to state that it is not “unnatural” for the purposes of Section 377 IPC or for civilians or other human beings but it continues to be “unnatural” for the purposes of Section 46(a) AA and for defence personnel. Let us also remember that the Supreme Court has not stuck down Section 377 IPC but has merely read it down and interpreted it. Bestiality etc would continue to be “unnatural” under Section 377 IPC as per the judgment and hence would remain an offence under Section 46(a) AA as well.

Disgraceful conduct of a cruel or indecent kind would continue to remain an offence under Section 46(a) AA.

Homosexual activity between two individuals would continue to remain an offence where similar heterosexual activity is falling under the realm of an offence. The decision may protect private consensual sexual activity between two individuals where it is not causing any implication on military service but any homosexual activity which is not consensual or any such homosexual activity which might be an offence in the military backdrop even if it had been heterosexual, would not be protected.

Moreover, no such reservations or worries have been expressed as yet by the official establishment and it won’t entirely be correct to state that the military is acutely concerned or worried. Like society at large, the military also self-adjusts to changes in law or interpretation of law and there is no lack of progressive thought in adapting to new situations within the military, and hence undue controversy need not be generated till any such issue arises, which would be addressed within the four corners of law when required. It may also be appreciated that multiple situations cannot be predicted in such scenarios with due certainty.

Monday, August 6, 2018

My book, Maimed by the System (2018) available at 33% discount till 15th August


My book, Maimed by the System (2018), would be available at 33% discount till Independence Day, 15th August, 2018 at www.notionpress.com/read/maimed-by-the-system

Use discount coupon- HUMANITY


Thursday, July 26, 2018

My interview to All India Radio


All India Radio interviewed me early morning today on Kargil, disabled soldiers, the effect of stress & strain of military service on health, welfare of soldiers, and beyond....

May lend an ear if inclined, or interested.


Thanks. 

Tuesday, June 26, 2018

Why does India need its own Farr and Flipper to undo miscarriage of military justice!


My piece on military injustice, also published @ Medium.

Not many in India would have heard about a young British soldier called Private Harry Farr. Not many would also have heard about the ‘shot at dawn’ memorial at Staffordshire in the United Kingdom.

The memorial is a tribute to 309 British and Commonwealth soldiers who were court martialled and shot during World War I primarily for offences of cowardice and desertion. Young Harry Farr was one of them. This battle hardened soldier fought bravely for the British in the First Great War. His trench was shelled and he sustained a disability due to which he was repeatedly admitted in hospital. At one stage he was refused admission in a medical establishment on the pretext that he was not ‘physically wounded’. He was suffering from ‘shell shock’ or what is now known as Post Traumatic Stress Syndrome (PTSD).

Private Farr, in a fragile frame of mind, went missing for three hours, and when located, was arrested and arraigned before a Court Martial, which, after a mere twenty minutes of trial, awarded the punishment of death by a firing squad.

The family fought a long war for justice when documents were discovered that despite his medical condition the young soldier had been forcibly sent to the front. The family could not meet success even at the High Court. Despite being refused positive judicial intervention, the United Kingdom, in 2007, granted a posthumous pardon to Private Farr thereby restoring the family’s honour. And with him, due to lack of individual evidence, a total of 306 soldiers executed that dawn were pardoned, providing them the benefit of doubt.

Then is the story of Lieutenant Henry O Flipper of the United States Army. Lt Flipper, born a slave, was the first African-American cadet at West Point to have graduated and commissioned in the US Army. As a military engineer, he was the inventor of the ‘Flipper’s Ditch’, a drainage system for malaria infested swamps, which is still used. Lt Flipper was accused of embezzlement and Court Martialled. He was found ‘not guilty’ of embezzlement but convicted for ‘conduct unbecoming of an officer’ for not having informed his Commanding Officer about some missing funds in his unit, and dismissed from service in the year 1881. Post his dismissal, Lt Flipper built up a successful career also recognized by the Government which appointed him at high offices. Interestingly, despite having been dismissed from service, West Point instituted an award in his name and placed his bust in the academy. Perusal of documents of the conviction pointed out the bias in his trial. It was long thought that his dismissal was the result of an inherent resentment towards African-Americans at the time. It was also discovered that the then Judge Advocate General of the Army wrote a detailed note to the President stating that his dismissal was unwarranted but it was never put up to the President and his dismissal was approved through a one-line non-speaking order. While reviewing the documents and showing moral courage of impeccable nature, the US Army in the year 1976 opined that his conviction was unjust but also stated that it had no power to overturn it, however his dismissal was converted into ‘honourable discharge’ which was permissible with the powers of the Army. In 1999, fully restoring the honour of the first officer of colour commissioned into the United States Army, the then President, William J Clinton, granted a full and unconditional pardon to Lt Flipper.

It’s ironic that the basic provisions of Courts Martial, especially Summary Courts Martial, practiced by the British during World War I, remain the same as on date under the Indian statute except cosmetic changes. The only real changes in how the provisions are effectuated have been forced upon the system due to judicial intervention primarily by the High Courts and the Supreme Court over the years. Though it is also totally agreeable that today’s military hierarchy is much more sensitive towards injustice or miscarriage of justice than the rank and file of the yesteryears. There was a time when the Courts could not even go into the appreciation of evidence of Courts Martial, something which was altered much later in the year 2009 with the inception of the Armed Forces Tribunal.

Why do I write this.

Why I am writing this here today is that due to the primitive nature of military justice being practiced in our country in the past, there are glaring instances of injustice and miscarriage of justice that have come to light years later, some due to a closer analysis in hindsight. Some are such which appear so nonsensical that these would not seem compatible with any of the values professed by our great military which is the pride of the nation. Many affected fought it out and succeeded, but some lost judicially and yet others did not even try. Some died without closure, some are living and looking for closure, and interestingly, under the Indian law, setting things right, even after a judicial verdict to the contrary, is not a far-fetched idea and is in fact provided by the statute, thereby triggering my urge to write this today.

Two glaring examples come to my mind:

The Samba Spy Case
Much has been written about this case popularly known as the Samba Spy Scandal. Many books have also been penned. Many of those affected have exhausted their legal remedies as per law and the judgment rendered in their favour by the Delhi High Court was ultimately overturned by the Supreme Court on an appeal filed by the Union of India. There is, hence, no judicial remedy remaining. But other doors are still not closed, as I would explain a little later. Coming back to the case, de hors the fact that they were unable to secure a final decision in their favour, there are some extremely jarring notes that would move even an untrained non-legal eye-

All accused were implicated essentially on just the statements of two spies, that is, Sarwan Das and Aya Singh and an officer of the rank of Captain who implicated (by his statements) about 52 personnel including, hold your breath, an officer of the Judge Advocate General’s department. The two spies were initially arrested in 1975 but they apparently named others in 1978. The said Captain clearly stated in his cross examination that he had been badly tortured to elicit his statements.

The entire case was built up on the premise of the statement of Aya Singh that one Capt Nagial was the initiator and had visited Pakistan in the year 1974. The charge was later established to be false and Capt Nagial was acquitted of the same by a Court Martial but implicated and convicted in some other case. When the foundation itself was faulty, there was no reason for proceeding in the matter.

Around 40 to 50 personnel and officers were finally accused of spying for Pakistan. All of them were from the same location of a Brigade based in Samba, a small town. Is it possible for such a large number of people being involved in spying for Pakistan from such a small station?

Statements were obtained from another Havildar, called Ram Swarup, who died of injuries after interrogation. The case was built up on confessional statements but there were large-scale allegations of torture.

Aya Singh, the kingpin on whose statements the case had progressed, was apparently killed later while crossing the Indo-Pak border. Could a person with such credentials be considered a reliable witness and could his statements be relied upon to implicate such a higher number of personnel located in a small town?

When no evidence was found by Court Martial against some personnel, their services were administratively terminated.

It is understood that a report was sought by the then Prime Minister from civilian agencies which established that the large-scale implications were no true.

Swaran Dass later made an open statement under oath that he had implicated innocent personnel after being tortured. The statement, made in 1994, was widely covered in the media as were other aspects of the case.

The above points do shake the very foundation of allegations of a large-scale conspiracy. On the face of it, something drastically went wrong somewhere but the wheels were not turned back to avoid criticism.

The curious case of Brig Pritam Singh
In one of his recent articles, Lieutenant General HS Panag, the former General Officer Commanding of Indian Army’s Northern Command, provided an interesting insight into the travesty faced by Brigadier Pritam Singh, known as ‘Sher Bachha’ (Son of a Tiger) on account of his stellar contribution to the battle of Poonch in 1947. Wounded in World War II, Brig Singh was also awarded the Military Cross after he escaped a Prisoners of War Camp. For one year, Brig Singh, then a Lt Col, resisted all the might of the enemy and ensured the retention of Poonch with India. He was promoted to the rank of Brigadier immediately thereafter (as per the system in vogue, officers were promoted directly from Battalion Commanders in the rank of Lt Col as Brigade Commanders in the rank of Brig). Though his contribution is legendary and he was again wounded in the Poonch operations, which area would have had a different history but for the valiant officer and his resolve, this piece is not about his military prowess. Brig Singh, in 1951, was dismissed from service by way of a Court Martial for misappropriating a sum of about Rupees Ten Thousand and a carpet. Other charges were also put into motion, but all collapsed. The carpet was meant as a present for the Air Force from the Raja of Poonch but it was alleged that Brig Singh had stolen the carpet for his own use. Despite the testimony of the Raja that it was indeed a gift from him to the Air Force which was being transported by Brig (then Lt Col) Singh’s battalion, the Court Martial went ahead and convicted him without even examining any evidence or witness in his presence as mandated by law. The allegation of misappropriation was with regard to excessive amount drawn than the actual expenditure and the time when the offence had supposedly occurred was a period when Brig Singh was admitted in a hospital after being wounded in war. Failing to pin him down on corruption charges, the Court Martial managed to convict him primarily on procedural lapses. It was well known during those times that many of his peers were envious of the trajectory of his career and the accolades he had achieved and the word amongst the military masses was that the entire episode was a result of this jealousy to stop his ascent.

Those times were strange. Punishments handed down by the military were not questioned. Courts were loath in entertaining petitions against military authorities and individuals were not aware of their rights. The direct result was that many injustices went unchallenged and this too, perhaps, was one in that list.

Bigadier Pritam Singh died in Punjab, unsung.

Restoring the Clock.

However, there is still a chance of redemption, but not by way of judicial remedy since the same is closed in the Samba Spy Case and barred by limitation in Brig Pritam Singh’s case. The fact that many of those who were affected are no more living makes the situation even more complicated.

Though invocation of judicial remedy is not possible, the Central Government still can very much undo the harm caused to the very concept of justice in such cases. Section 165 of the Army Act empowers the Government to annul any proceeding of any Court Martial on account of being illegal or unjust. This power is unfettered and it does not matter whether a person has exhausted his or her legal remedies or not, and with what result. If, based on the material available, the Government comes to the conclusion that the Court Martial was not just, it can annul the entire proceedings and restore the honour to those who were treated unjustly. In cases of those whose services were terminated or Presidential Pleasure withdrawn, the same, being merely an administrative non-judicial act, can always be reversed by the same authority which had passed the orders of punishment in the first place.

The remedies that I speak of above are not ordinary and are meant for extraordinary situations. However, keeping in view the fact that the systems of military justice in the yesteryears were primitive and there is a possibility of innocents having been meted out unjust punishments, it would only be right, with due diligence, to explore this exercise with full moral courage for restoring their honour.

We need our own version of Private Farr and Lieutenant Flipper here. Though there is bound to be resistance in such cases citing wrong precedents being set, a hackneyed and regularly exercised excuse, a strong political will can make it happen. Besides, setting aside of unjust actions is not a new phenomenon and that is the very reason such rules exist to undo miscarriage of justice. If ‘precedents’ are to be given so much undue emphasis, then the mere existence of those provisions in the statute book becomes superfluous and infructuous.

Will we have our Farr and Flipper moment in India?

Time will tell.