Judicial Overreach in defence and security issues endangers National Security
Looking at rulings and advice emanating from the Supreme Court in recent times, one wonders if first, the honourable court has taken control of counter insurgency and counter terrorist operations in the country, and whether they will next dictate what should be India’s foreign policy towards which country.
The second question that comes to mind is that when there is ‘paid’ media, could there be ‘paid’ judiciary? The third question that comes to mind is whether the judiciary is so immersed in their law books that they are completely unaware of the intensifying hybrid war that the security forces are fighting, which requires the response of all elements of comprehensive national power (CNP) including the judiciary, and while the only element of CNP effectively functional are security forces, decisions and advice from the judiciary, whether advertent or inadvertent, hindering their effective functioning amounts to the anti-national.
But let us examine the most ticklish question – can there be ‘paid’ judiciary? Forget the details of corruption of various former judges and Chief Justices of India (CJIs) circulating on e-mail and social media on grounds of authenticity, but then former Law Minister Shanti Bhushan had moved Supreme Court in 2010 accusing eight former CJIs being “definitely” corruption and daring the court to send him to jail for committing contempt of court.
In his application, Shanti Bhushan mentioned two former CJIs personally telling him that while they were in office, their immediate predecessor and immediate successor were corrupt judges. The names of these four CJIs too were included in the application to the Supreme Court. Significantly, he had stated, “Unless the level of corruption in the judiciary is exposed and brought in the public domain, the institutions of governance cannot be activated to take effective measures to eliminate the evil.” Nothing was heard about this case thereafter, which is no surprise.
In 2015, Markandey Katju, former SC judge, addressing lawyers at the Punjab and Haryana high Court had stated that 50% of the higher judiciary consisting of SC and high court judges was corrupt. But lo and behold, the Bar Council of India informed the SC in January 2017 that its ongoing drive had already cut the number of genuine lawyers to 55-60% of those roaming court corridors across the country. Obviously, with the drive still ongoing, the number of fake lawyers (fake degree and no degree included) may yet go up. But with this state continuing over the years, how many managed to become judges and chief justices will remain a mystery?
Then is the recent comedy of an SC bench headed by the CJI summoning Justice —- Karnan of Calcutta High Court in contempt of court and Karnan in turn summoning the CJI and six other SC judges to appear at his residence in Calcutta. Eventually, Karnan did appear before the SC on March 31 but reiterated his charges against the CJI and six SC judges, while seeking restoration of his judicial and administrative powers.
From the above, it is apparent that some of the holy cows are not be as holy as made out to be. Not that corruption was not being induced by previous governments through promising post retirement appointments and other bribes in order to manipulate judgments or keep them vague to facilitate interpretation benefiting the then government. One politician, who presently claims his IT records have been devoured by termites, even took upon himself to conduct physicals of prospective judges, which his enterprising driver managed film secretly making him a millionaire overnight. But while Justice Karanan was summoned for contempt of court and he did eventually present himself, the present CAG when summoned personally by SC in 2014 in contempt of court for not implementing direction of the SC when serving as Defence Secretary, simply cocked a snoot at the SC, ignoring the summons completely. Clearly the CJI needs to sort out the mess within. A probe into the personal assets of some of these holy cows could result in startling discoveries.
But let us get back to the issue of defence and security. The judiciary needs to educate itself of the vicious hybrid war being waged to destabilize India, actively assisted by the ‘enemy within’. It is important to understand this, which no doubt is difficult considering that Manohar Parrikar when Defence Minister said that the Army is respected less because we have not fought a war past few years; a naïve statement indicating he had no understanding of present day warfare.
With an active anti-military constituency thriving on foreign funding and machinations of the ‘deep state’ within India as defined by the NN Vohra Committee Report of 1993, the judiciary acting adverse to security forces functioning is a disaster in the making. Is the judiciary aware that according to a serving Rajya Sabha MP some 15 Indian politicians are in the net of Dawood Ibrahim, the turmoil in Kashmir Valley has transformed into a brutal hybrid war backed China and Pakistan, and a former J&K CM Farooq Abdullah is openly preaching secession while demanding imposition of Sharia? How about the SC taking suo-moto notice of Abdullah, mull how to deal with him and demand inquiry into the ethnic cleansing of Kashmiri Pundits from the Valley, fixing responsibility?
Referring to continuing use of AFSPA in Manipur, an SC bench few months back had said, “Were such a blanket position accepted, it would reflect poorly on our armed forces that they were unable to effectively tackle a war-like situation for the last almost six decades”. This shows gross misunderstanding of any insurgency by judges, where armed forces only can keep violence at certain level but the balance has to be done by the State, insurgency being a politico-socio-economic problem, not military. So, instead of blaming the armed forces for being “unable to effectively tackle a war-like situation for the last almost six decades”, the concerned SC judges should have asked the concerned State to “remove the Disturbed Area Act”, that would automatically remove AFSPA reverting the armed forces to their primary task of guarding the borders.
Remember when General VK Singh (presently MoS External Affairs) as COAS had said that army can only keep the violence at particular level but balance is to be done by the state administration, Farooq Abdullah’s raw nerve of misrule by the National Conference was activated, making him cry the General was overstepping his jurisdiction.
There also is apparent lack of understanding in the judiciary of how and why the Armed Forces Special Powers Act (AFSPA) was enacted. The fact is that neither the Army called for AFSPA nor drafted this Act. It was debated by Parliaments and passed to ensure that the Army can function effectively in the designated disturbed area, when deployed. Deployment of Army in the hinterland and application of AFSPA comes only ‘after’ the said area is declared disturbed under the ‘Disturbed Area Act’. An area is declared ‘disturbed’ when the state machinery is unable to function and calls in the Army for support. Therefore, any dilution of AFSPA then would mean diluted effectiveness of the Army in counter insurgency or counter terrorism and personnel getting involved in litigation consistently.
But the SC ruling that FIR be lodged and police investigate actions by the Army in counter-insurgency / counter-terrorism amounts to dilution of AFSPA and runs contrary to its provisions enacted by the Parliament, which should actually be outside the jurisdiction of the SC unless first discussed and agreed to by Parliament. A day after the SC dismissed the Centre’s plea to exempt armed forces’ personnel from prosecution for encounter deaths in areas under AFSPA, the Attorney General made a strong pitch for review of the curative jurisdiction, calling it “unfair and flawed”. Here the moot question is whether the Parliament is supreme or the SC? And, if it is the former then SC has no business of countermanding what has been enacted by Parliament.
Similarly, SC ruling on use of pellet guns should be seen in the backdrop that these were introduced for use in J&K by central armed police forces (CAPF) with concurrence of the Government of J&K. Does the judiciary realize situations where handful of CAPF personnel is being attacked by hundreds of stone-pelting radicals on daily basis?
It is time the judiciary wakes up to ground realities, considers how dissent is handled in our neighbouring countries, and the adverse impact of tying hands of security forces behind their backs. Then there is also this business of advising the government to consider ordering a dialogue to resolve the Kashmir issue – talk to separatists, even as the Attorney General ruled out any dialogue between the central government and separatists raising issues of “Azadi” and “accession” in the Valley. Sure the judiciary must give a ruling on cases that come up to them, but why not leave issues connected with national security to the government of the day, rather than helping the cause of our enemies and anti-national elements directly or indirectly? There is precedence of ambiguous ruling by SC even when national security was not involved and specific ruling was very much required.
For example, the SC bench headed by Justice RM Lodha ruled in the case of General VK Singh’s application that that there are two dates of birth and the government can decide which was the correct. What a façade where a Panchayat or Khap could have given specific ruling. Obviously the bench was dancing to the tune of UPA II.
What the CJI could consider is a short capsule by a Think Tank for the judiciary to get acquainted with the hybrid war that our security forces are fighting, AFSPA, the insurgency-terrorist environment, and the enemy within. The alternative for the CJi is to put himself and his flock in combat dress or Khakhi and accompany security forces in the Valley, with or without pellet guns, to get first-hand experience of the ground situation before passing rulings and advice on matters of national security.