Of Nationalism & Anti-nationalism

http://www.sify.com/news/of-nationalism-and-anti-nationalism-news-columns-rjfrfGiaffjia.html

Major General Mrinal Suman

If India has been ruled by foreign powers for centuries, our penchant for according primacy to personal interests over national concerns has been a key contributory factor. India has been adept at spawning throngs of people who can stoop down to despicable levels of anti-nationalism for their petty gains. They encourage disruptive forces and revel in India’s discomfiture at every juncture. Even today, fading political leaders, pseudo-intellectuals and presstitutes get rewarded handsomely for their perfidious acts by the forces inimical to Indian interests.

The issue of nationalism and anti-nationalism has been the subject of intense debate for the last three years. In fact, every occurrence, act, statement and view point is subjected to similar typecasting (national or anti-national), thereby generating questions about the very concept of nationalism. A significant section of Indian media and intelligentsia considers Indian nationhood to be a nebulous proposition. For them, freedom of speech/action is of far more import and criticality. Therefore, they give precedence to individual freedom over the perceived national interests.

The question arises as to what is nationalism and how does an act/activity qualify to be termed anti-national. Notwithstanding multiple definitions given by politico-social scientists, nationalism in its simplest form means – ‘an unflinching belief that the interests of one’s nation-state are supreme and take precedence over everything else’. Conversely, anti-nationalism denotes attitudes and acts associated with an opposition to nationalism. Anti-nationalism flows from an attitude of repugnance for the concept of nation states, thereby assigning overriding primacy to individual rights over all other considerations.

Coming to anti-nationalism, it’s gamut is vast. On one end, there are overt acts of violence to include social unrest, agitations, terrorism, insurrection and insurgency. Covert activities occupy the other end of the spectrum and include far more seditious subterfuges that cause social disharmony, generate dissentions amongst the people, make citizens lose confidence in the governing regime and defame the country internationally. Being dreadfully lethal, they have the potential of causing severe damage to the soul and body of a nation-state.

Anti-nationalism has two key imperatives. One, it does not exist in innocence but contains malicious intent and ulterior motives, albeit camouflaged under high sounding ideological phrases. Two, anti-national acts are carried out by the perpetrators in full knowledge of the ensuing detrimental impact on national interests.

Judging against the above two criteria, Hamid Ansari’s last interview as the Vice-President of India certainly qualifies for the tag of anti-nationalism. After having enjoyed all the perks and privileges of office for the last ten years (three years under the present government), his conscience troubled him only on the last day in office. His assertion that India’s  Muslims are living with a "feeling of unease" and “a sense of insecurity is creeping in among them” was certainly malevolent in intent and designed to damage India’s secular image.

Undoubtedly, facilitation of illegal immigrants from Bangla Desh has been the gravest anti-national mischief in Independent India. To create a loyal vote bank, the ruling party passed ‘Illegal Migrants – Determination by Tribunals (IMDT) Act of 1984 for Assam’. It shifted the onus of proving illegal status of a suspected immigrant to the accuser, which was virtually impossible. As a result, immense damage has been done to the demography of Assam. Nearly 30 Islamic groups are thriving in the area to further their Islamist and Pan Bangla Desh agenda.

Perhaps, India is the only country that has an ignominious track record of producing Home Ministers who readily shamed the country to please their master. One concocted theories of saffron terrorism while the second one declared a terrorist to be innocent in an affidavit to the court to ensnare the opposition leaders in a false case. Government’s linking of the Samjhauta Express blasts to a Hindu group, whereas most initial reports suggested involvement of the Islamic groups Lashkar-e-Toiba and Jaish-e-Mohammed. In the process, they provided anti-India ammunition to the hostile foreign media. Similarly, terming of Batla House encounter that led to the death of two terrorists and one police officer to be stage-managed made Pak media ecstatic. It keeps mocking India to date.

Some of our leaders of suspect loyalties, predisposed intelligentsia and presstitutes display compassion for the stone-pelters who abet terrorism but never shed a tear for the hapless soldiers and policemen braving them. Use of young boys and women as human shield to thwart anti-terrorist operations is acceptable to them but not the ingenuity of an officer to ensure safe passage through hostile mobs. A section of the intelligentsia has been demanding that Jammu and Kashmir be allowed to separate from India if it wishes to do so.

The self-proclaimed secular intelligentsia has done maximum damage to India’s prestige and standing. Some of them appear to be fifth columnists anti-nationals masquerading as progressive intellectuals. It can be said with certainty that the well-orchestrated campaign of intolerance was totally malicious in intent. The sole objective was to stall all progressive reforms by tarnishing the image of the government.

Seditious acts and utterances that bring disgrace and disrepute to the country are always anti-national in intent. When a political leader declares ‘it's safer to be a cow than to be a Muslim in India today’, he puts the whole country to shame. The world media flashes such headlines with sinister pleasure. Many social-media activists indulge in spreading negativity in the environment. Their sole pursuit is to search out and propagate any news or article that is critical of the regime, howsoever innocuous or ill-informed it may be. For them, India is a cheerless country with no hope. They see darkness and spread pessimism.

    

As stated above, the concept of nationalism is based on the premise that national interests are supreme and allegiance to them is absolute. Opposition to the government policies, criticism of its performance and differences  with the majority view cannot be termed as anti-national activities. In fact, they are essential for the survival of democracy in India. Freedom of speech falls under the same convention. The concept of ‘good faith’ being the sole measure.

Finally, if India has to survive and flourish as a nation; anti-nationalism has to be dealt with ruthlessly. Anyone promoting hatred between communities or undertaking divisive actions should be punished for anti-national activities (or even treason/sedition), as internal dissentions are the start point of all civil strife. Similarly, any act or statement that harms national interests should be viewed as anti-nationalism and censured accordingly. Human rights and personal freedom cannot be allowed to be misused to pose a threat to national wellbeing.*****

Adarsh Committee Report: Oddities Galore

Adarsh Committee Report: Oddities Galore

Major General Mrinal Suman

Adarsh Society has come back to haunt the services, causing severe damage to the standing and reputation of the higher leadership. Reaction of the environment varies from incredulous scepticism to outright condemnation of the concerned officers.

The inquiry committee, set up by the Ministry of Defence (MoD), in its voluminous report of 199 pages, has blamed two former Army Chiefs, three Lt Generals, four Maj Generals and several other military and Defence Estates Office officers for various acts of omission and commission. The report also calls former Naval Chief Admiral Madhvendra Singh and Vice Admiral Madanjit Singh as beneficiaries but does not hold them accountable, as all land-matters in Mumbai are dealt-with by the army.

The enquiry committee has also recommended appropriate administrative action against the named officers to include conveyance of displeasure and debarring them from any future employment or contract with the government, or any of its bodies and committees.

As regards the genesis of the inquiry committee – it was set up by MoD pursuant to the orders of the Mumbai High Court. Vide Para 118 of the order dated 29 April 2016, the Court  observed, “As noted earlier, building (Adarsh) is on the neck joining Colaba island. The petitioner has contended that GOCs between 1999 and 13 July 2010 and their family members were allotted flats in Adarsh building. We do not intend to comment on the role of these officers as they are not made party to the petition. It is, however, necessary to find out as to why the petition was not instituted at the earliest available opportunity. MoD is, therefore directed to hold an in-depth inquiry for finding out whether these GOCs compromised with the security of Colaba Military Station in lieu of allotment of flats in the building.”  

Stressing the seriousness of the above issue, the Court reiterated its direction in Para 121 and named the said GOCs. It directed MoD ‘to hold an in-depth inquiry for finding out the lapses or reasons on the part of its officers for not instituting writ petition at the earliest available opportunity, as also for finding out whether the GOCs between 1999 and 13 July 2010, namely, (1) Maj. General A.R.Kumar, (2) Maj. General V.S. Yadav, (3) Maj. General T.K. Kaul, (4) Maj. General Tejinder Singh, (5) Maj. General R.K.Hooda   compromised with security of Colaba Military Station  in lieu of allotment of flats in the building’. 

MoD constituted a two-member inquiry committee consisting of retired bureaucrat and a retired Lt General. Neither the constitution of the committee nor its proceedings were made public. Therefore, the committee report took the environment by surprise. It has since been put up on the MoD website.

The aim of this piece is not to defend the guilty. Transgressions, if any, must be dealt with severely and guilty be awarded deterrent punishment. However, it is the procedure that MoD followed that raises several key questions.

First, although the Hon'ble Court had directed MoD to hold an in-depth inquiry for finding out the lapses or reasons on the part of its officers, the stress was undoubtedly on  the role and conduct of five GOCs between 1999 and 13 July 2010. It is not known as to why the scope was enlarged to implicate former Army Chiefs, Lt Generals and other officers.

Initially, vide its order of 01 Aug 2016, MoD tasked the committee to bring out the truth as regards (a) ownership of land, (b) possession of land over passage of time, (c) origin of the society, (d) allotment of land to the society, (e) phases of construction, (f) interested parties and beneficiaries, (g) legal lacunae, etc.

For unspecified reasons, on 17 Nov 2016, MoD amended its orders. Two important terms of reference (ownership of land and possession of land over passage of time) were deleted. It implied that the whole span of inquiry was limited to the security aspects of  Colaba Military Station and not ownership/possession of the said land. As security of the military stations is exclusively the concern of the service officers, civilian officers of MoD had peripheral role to play. Therefore, it would have been far more prudent to ask Army Headquarters to order a Court of Inquiry (CoI) under the Army Rules. A CoI has far more legal sanctity than an inquiry committee of MoD.

Most unfairly, the inquiry committee gave no opportunity to the accused officers to defend themselves. In a way, it was a case of ex-parte findings and verdict; and, in gross violation of the principle of natural justice.

Natural justice is based on two fundamental rules: (i) Audi alteram partem – no accused, or a person directly affected by a decision, shall be condemned unless given full chance to prepare and submit his or her case and rebuttal to the opposing party's arguments; (ii) Nemo judex in causa sua – no decision is valid if it was influenced by any financial consideration or other interest or bias of the decision maker. These principles apply to decisions of all governmental agencies and tribunals, and judgments of all courts, which may be declared to be of having no effect (ultra vires) if found in contravention of natural justice.

Despite common misperception, Army Rule is far more fair and just in the treatment of the personnel involved. Army Rule 180 mandates that whenever any inquiry affects the character or military reputation of a person, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation.

Most interestingly, the basic question whether Adarsh building poses a threat to the security of the military installations in Colaba has not been examined by the committee at all. In all fairness, it should have called the accused officers to ascertain as to why did they not consider Adarsh to be a security threat. That would have been the correct approach to follow.

Without prejudice to the findings of the said committee, legitimacy and authenticity of the procedure followed remains questionable. Many are questioning the justification for nominating a bureaucrat as a member of the committee constituted to ascertain the culpability of senior military officers as regards the security threat to a military station. Has any military officer ever been made a member of any committee set up to inquire into the conduct of bureaucrats?

Strangely, the committee exceeded its brief by recommending administrative action against the allegedly guilty officers. An inquiry committee is a fact finding body. It can suggest improvements in the procedures to prevent future transgressions but not suggest punishments. In this case, the committee has unilaterally declared the accused officers guilty and even recommended conveyance of displeasure of the Government to these officers for their conduct and role in facilitating the wrongdoings.  Further, the committee suggests that the Government can also consider the option of  taking action for debarring some or all of these officers from any future employment or contract with the Central Government or any of its bodies, or participating in any Committees. The convening order never asked the committee to suggest punitive actions.

Haste in publishing the report also raises a few questions. One-man judicial panel on OROP anomalies submitted its report to MoD on 02 Nov 2016. Over eight months have passed and it has not been made public. In contrast, Adarsh inquiry committee submitted its report on 28 Feb 2017 and was put on the website in a span of four months, that too when the report was classified ‘Confidential’. However, it is not known if the government has accepted the said report.

Finally, a committee report should not become a part of a slander campaign, duly orchestrated by a few inimical elements. Castigating Chiefs and other senior brass without giving them a hearing amounts to unilateral and prejudiced vilification of their character and military reputation. Therefore, the credibility of the MoD inquiry committee remains suspect. While the guilty must be punished, the process has to be just, transparent, lawful and objective.***** 

Penalties for Infringements: Policy Rationalised

Penalties for Infringements: Policy Rationalised

(Geopolitics May 17)

Major General Mrinal Suman

Most defence scams have been following a familiar pattern. The government remains blissfully unaware of all wrongdoings till the foreign media unearths the transgressions. Initial denials by the Ministry of Defence (MoD) are quickly followed by promises of seeking details from the envoys abroad. Once Indian media builds pressure, the government is forced to accept that ‘everything is not above board’. Finally, with a view to deflect increasing flak, the case is handed over to the investigative agencies. The foreign vendor is debarred till the finalisation of the enquiry, without considering negative effects on India’s military preparedness. Three major cases have been recalled here to underline the issue.

One, a contract for 410 Bofors 155 mm FH-77B towed artillery systems was signed with the Swedish firm in 1986. It included transfer of technology for subsequent manufacture of guns in India. However, with the exposure of kickbacks, the government banned Bofors for all future dealings. Despite having paid for the technology, India failed to utilise it to develop indigenous manufacturing competence.

As spares could not be procured from Bofors, middlemen thrived making huge profits. In the absence of adequate spares, the Army had to cannibalise parts from some guns to keep other guns functional. Indian inventory of 84 mm Carl Gustav Rocket Launchers also suffered as Carl Gustav subsequently became a subsidiary of Bofors and thus, came under the ban. The Indian Navy that had been using Bofors guns on some ships also faced difficulties in ensuring regular supply of spares.

Two, discussions were in final stages with Denel of South Africa for 155 mm howitzers when it emerged that Denel had employed unacceptable means to grab contract for the supply of NTW-20 Anti-Material Rifle. The government decided to blacklist Denel in 2005 and cancel all orders placed on it.

The development was highly unfortunate. With the blacklisting of Denel, Indian Army’s Field Artillery Rationalisation Plan suffered a crippling blow. Additionally, India’s quest for indigenous production of 155 mm ammunition also suffered a major setback. Work on a new ordnance factory in Nalanda to manufacture 155mm ammunition for Bofors guns got stalled, as Denel was to provide technical know-how. Hundreds of crores of rupees thus went down the drain. 

Three, a contract was signed with the German firm HDW in December 1981. India was to get two HDW 209 class fully built submarines; and sub-assemblies and components for assembling two other submarines in India. HDW delivered two submarines in 1987 and two more were assembled in India in the due course. As allegations of bribery and kickbacks became public, the government decided to blacklist the company. It was also decided not to build any more submarines of the same class. 

HDW is the world leader with the most advanced air-independent propulsion system. By blacklisting HDW, India deprived itself of the benefits of the latest technological advancements. As India had not received the complete drawings and NATO identification numbers for all spare parts of the submarines, it faced immense problems in procuring them from other sources. Middlemen prospered. By blacklisting HDW, India deprived itself of maintenance support, upgradation opportunities and development of indigenous skills.  

New Policy Guidelines

Learning from the past experience and appreciating the futility of blacklisting companies in haste, Defence Minister Parrikar declined to impose a blanket ban on Finmeccanica for the alleged AgustaWestland misdemeanours. He understood that while outright banning helps the government to counter criticism, it invariably proves highly detrimental to the Indian interests.

In addition to ordering a review of all existing cases, Parrikar directed that fresh guidelines be framed for imposing penalties on errant entities. After detailed examination of all facets, a policy paper titled “Guidelines of MoD for Penalties in Business Dealings with Entities” was approved by the Defence Acquisition Council in November 2016. It is applicable to both capital and revenue procurements of goods and services.

The guidelines aim to achieve probity, transparency, propriety and compliance in the defence procurement process; and help authorities in ensuring fairness, impartiality, rigour and correctness in dealing with entities, keeping in view the overall security interests of the country. The guidelines designate the Defence Minister as the competent authority.

The term entity has been defined to include companies, trusts, societies, as well as individuals and their associations with whom MoD has entered into, or intends to enter into, or could enter into contracts or agreements. It has been further clarified that all firms/companies which come within the sphere of effective influence of the entities shall be treated as its allied firms.

Penalties can be of three types – financial penalties, suspension of business dealings and banning of business dealings. The competent authority can impose a combination of penalties as well.

Grounds for penalties include violation of Pre-Contract Integrity Pact; corrupt practices to secure a contract; violation of agents/agency commission clauses; and non-performance or under performance of contractual obligations. The guidelines also empower the competent authority to suspend or ban business dealings with an entity in the public interest or if the national security considerations so warrant.

The guidelines are silent as regards the quantum or methodology of imposing financial penalties but have dealt with suspension and banning in exhaustive details. Here are the salient aspects.

Suspension of Business Dealing

Suspension of business dealing with an entity may be ordered by the competent authority pending a full proceeding into allegations; or facts related to the specified grounds; or on reference of a complaint to investigative agencies; or when intimation is received regarding initiation of criminal investigation or enquiry against any entity.

Suspension orders will be issued for such period as the competent authority may deem fit but will ordinarily not exceed one year. Order shall be reviewed within six months of its issue and before expiry of the period specified therein. Suspension order may be extended beyond the period of one year for subsequent periods of six months each. Suspension may be extended to the allied firms of the entity by specific order of the competent authority.

Suspension will have the following effects:-

·     Immediate ineligibility from participating in future bids. No Request for Proposals (RFP) will be issued to such an entity.

·         In any on-going procurement process, if L1 determination has not yet been finalised, bid of the suspended entity will be excluded. The procurement will be progressed as per the extant provisions of the Defence Procurement Procedure (DPP) even with a single valid bid.

·         In any on-going procurement process, if the lowest bid involves the suspended entity, the process will be held in abeyance till decision of revocation of the suspension order or banning the entity is taken. Extension of the validity of the bid involving such entity will not be permitted and the procurement case should be initiated afresh.

Any contract related to the procurement process in connection with which business dealings with an entity have been suspended will be held in abeyance. However, other contracts involving such entity shall continue unless a decision to the contrary is taken by the competent authority, on a case by case basis.

Banning of Business Dealings

It is a far more severe penalty. It gets invoked when either the accused entity accepts misconducts or such misconduct is established by a competent court/tribunal/authority.

In addition, the competent authority can decide to impose ban when a charge sheet is filed by an investigative agency against the accused entity in a court of law.

Period of ban will be at the discretion of the competent authority. However, for breach of probity provisions and on account of national security concerns, it should not be less than five years. For non-performance and reasons of public interest, the ban should ordinarily not exceed three years. Such ban periods will be inclusive of period of suspension, if any, for the same cause of action. Longer bans may be imposed in exceptional cases and those involving national security considerations.

Ban will have the following implications:-

·         It shall result in immediate ineligibility of the entity from participating in future bids for a specified period with effect from the date of such order. No RFP will be issued to such an entity.

·         In any on-going procurement process, if determination of L1 has not yet been done, bid of the banned entity will be excluded. The procurement will be progressed as per the extant provisions of DPP even with a single valid bid.

·         If in any on-going procurement process, the lowest bidder involves banned entity, the process will be terminated and fresh procurement process, if required, will be initiated.

·         Orders of banning of business dealings with an entity may be extended to its allied firms by specific orders of the competent authority.

Any contract related to the procurement process in connection with which business dealings with an entity have been banned, shall be cancelled. However, other contracts involving such entity shall continue unless a decision to the contrary is taken by the competent authority, on a case by case basis.

Exceptions

Some significant exceptions have been made in the guidelines to safeguard Indian interests. A suspended/banned entity may be allowed to participate in future RFPs for spares, upgrades and maintenance for the equipment/weapon systems supplied earlier by it, provided the equipment which is the object of the contract is a proprietary item and no alternate sources of supply are available.

Similarly, in cases involving transfer of technology or licensed production, suspended/banned entity may be allowed to participate in future RFPs related to components/rotables/additional items of such equipment/weapon systems.

If it becomes necessary on grounds of national security and operational preparedness/export obligations, to deal with an entity with which business dealings have been suspended or banned, in a procurement process and which is the only source that can supply/manufacture an equipment/weapon systems, the Competent Authority will be approached for approval of issuance of RFP or conclusion of contract with such an entity.

Other Provisions

Any employee or agent of an entity, who is convicted for any act of impropriety, will not be allowed to engage in any bid process in any capacity with MoD, any time in the future.

Any employee or agent of an entity with which business dealings are suspended or banned and who is involved in a case of alleged impropriety for which investigation or judicial proceedings is in progress, will not be allowed to engage in any bid process in any capacity with MoD even after the expiry of the period of suspension/banning of business dealings with the entity.

The entity with which business dealings have been suspended or banned will not be permitted to transact contracts or agreements under a different name or division either through a transfer of assets of such an entity to another legal entity or otherwise.

An updated list of entities with which business dealings have been suspended or banned by the competent authority and/or against which financial penalties have been imposed shall be maintained on the official website of MoD.

Finally, a word of caution

A word of caution will be in order here. As stated earlier, the government must have conclusive proof that a major breach of probity provisions has taken place. Media reports and rumours cannot be the sole basis. As has been seen, a majority of media reports are subjective, biased and even planted to sabotage a deal. This could be the handiwork of a losing competitor or even by the entities inimical to India’s interests. As has been seen earlier, every suspension/ban puts India’s defence modernisation plans back by decades. Undoubtedly, it is the most cost effective option available to the adversaries to impede India’s defence preparedness.

A few years ago, six companies (two Indian and four foreign) were accused of offering illegal gratifications to a former Director General of Ordnance Factories. All six were debarred on 05 March 2012 from further business dealings with MoD. The foreign companies included Singapore Technologies Kinetics (STK). STK was participating in tenders to supply 155mm/52 Calibre Towed Guns, 155mm/39 Calibre Ultra Light Howitzer Guns and Close Quarter Battle Carbines. All programmes got stalled and no alternate source has been finalised so far.

It must be appreciated that most foreign companies are very conscious of their reputation. They prefer an open, transparent and legitimate environment. Probity laws are very strict and unforgiving in their home countries. They want to do business lawfully in India but realise that ‘speed money’ is the password to winning contracts; and they succumb to the unethical practices due to the coercive arm-twisting. Thus, it is unfair to put the entire onus for corrupt activities on the vendors. In fact, the Indian establishment is more to blame.

Finally, not a single foreign firm has been convicted for the alleged wrong-doings so far, as no conclusive proof has ever been established against the companies blacklisted. After years of costly investigations, the cases are closed without any tangible results. The government is compelled to reinstate the companies and allow them to participate in all defence contracts. Ban on Bofors, HDW and Denel has already been lifted. It is learnt that many other companies may also be cleared in the near future.

There are limited manufacturers of high-tech defence systems in the world who are willing to offer advanced weaponry to India. Blacklisting of vendors reduces competition and forces the government to resort to single vendor procurements with related cost penalty.

In case suspension of dealings is considered to be the unavoidable option, it should be timed in such a manner that India’s defence preparedness suffers the least. Had India waited for a few months before banning HDW, it would have received all catalogues and drawings of the submarines. Whereas the need to send a strong message to the environment in unambiguous terms cannot be disputed, punitive action must always be taken in a measured and graduated manner to safeguard own interests.

Therefore, the government must tread cautiously. To start with, the allegations must stand proved prima facie. Thereafter, adequate opportunity must be provided to the vendor to respond to the allegations and state its case. Before deciding on the quantum and nature of punitive action, likely fallout on India’s own interests must always be taken into account. Shooting oneself in the foot cannot be a prudent way of handling an issue that has far-reaching effects on national defence preparedness.

Who will judge the Judges? by Aditi Kumaria Hingu

Who will judge the Judges?

http://epaper.newindianexpress.com/1201501/The-New-Indian-Express-Chennai/10-05-2017#page/10/2

Aditi Kumaria Hingu

The Republic of India has a federal government, comprising of the Executive, Legislative and Judicial branches.  This structure is based on the Constitution of India. The Constitution framed a system of governance in which the powers conferred by the people are not vested in either a single person or a single institution. Therein came the principle of ‘Separation of Powers’ among the three pillars of democracy – the Executive, the Legislature and the Judiciary.

The Executive comprises the Prime Minister and his council of ministers (the temporary executives) and the Civil Servants and other officers (the permanent executives). They have the sole responsibility to ensure daily administration of the nation/state. They propose policies, and once approved, ensure that policies are implemented in a timely and effective manner.

The Legislature comprises the Parliament (Lok Sabha and Rajya Sabha). It is the policy making body of the country where all bills proposed by the Executive get discussed, debated, amended, approved or rejected.

The Judiciary is the adjudicating body which is independent of the Executive and Legislature. The bills proposed by the Executive and the laws passed by the Legislature are subject to judicial review by the Supreme Court of India. The Judiciary has the power to declare a law null and void if it violates the constitution.

However it is a matter of national shame that the very Judiciary which is tasked with ensuring that the Constitution is followed is now flouting its principles on a regular basis with impunity.

Three recent judgements made by the Supreme Court of India come to mind –

In November 2016, the SC mandated that the National Anthem must be played in all theatres prior to screening of movies. Neither was the ruling well thought through, nor was it made clear as to how would this be enforced.  Movie-goers were confused whether they should stand up in case the National Anthem is played as part of a movie. Physically disabled members of the audience were assaulted for not standing up when the anthem was played. It took clarifications and notifications from the Ministry of Home Affairs to clear the air on this issue.  The Honourable SC seemed to have forgotten the fact that patriotism cannot be enforced. If at all, it does need to be enforced, who will be the enforcing agency? Should the Indian Police Force, which is under-staffed and over-worked, be asked to let go of their current duties during movie times?

The second judgement was the April 2017 ban on all liquor vending outlets, including Hotels and Restaurants, within 500 metres of National and State Highways. If people drink and drive, accidents will happen. The source and distance of liquor purchase is not a variable that impacts the casualty rate. It will be worthwhile to monitor road accidents for the period of April 2017 – March 2018 and compare it to the same period, a year ago. There is very high probability that there will not any significant reduction in the casualty rate. However there would be another metric that would have dropped significantly – the rate of employment.  It is estimated that around 1 million jobs will get impacted in the hospitality industry due to this law. Assuming an average family size of 5 members, this law directly hits at the livelihood of 5 million people. Not only is this a silly order, it is also a clear case of judicial overreach since the prohibition of consumption of intoxicating drinks is a directive principle which is under the aegis of the duly elected government.

Lastly and the most dangerous example of judicial overreach has been the SC’s decision to reject the curative petition of the government and uphold its earlier direction of 8^th July 2016, wherein registration of FIR against Armed Forces Personnel has been made mandatory for every encounter death. This includes disturbed areas where Armed Forces Special Power Act (AFSPA) is in place. The Army and paramilitary forces are deployed in sensitive areas due to the breakdown of civil machinery. Apart from helping maintain order, they also serve a humanitarian role – hospitals in the Himalayan region, the Goodwill schools in Ladakh, the roads maintained by Border Roads Organisation are just a few examples. Yet, our Honourable judges chose to paint the soldiers with the same brush as they would a common criminal. No soldier wants to kill his own countrymen. But if there is a threat to the country’s sovereignty, he will risk his all and fight. He will either kill or get killed.  Now, with this judgement passed by the SC in its hallowed portals at New Delhi (far away from the harsh realities of Siachen and Sukma), the soldiers have no option but to either let the terrorists escape or get killed themselves.

It is indeed a sad day for the Republic of India when one of the pillars of democracy, the Judiciary, itself becomes an enemy of the nation. Not only does it break the norms established by the Constitution by its acts of judicial overreach, it also harms the country’s freedom of expression, economy and security.

The enormity of the Judiciary’s misplaced zeal becomes even more obvious when one considers the abysmal track record of justice dispensation in India. There are 30 million cases pending in India. Even if one assumes that a case involves only two people, it is tantamount to 60 million people waiting for justice. Despite these millions of people waiting for justice related to criminal and civil matters – murders, rapes, criminal intimidation, property disputes, cheating- the highest court in India, decides to focus its energies on when the national anthem should be sung, where should liquor not be dispensed and how should soldiers fight wars. If this is not a mockery of justice, what is?

(Aditi Kumaria Hingu is a marketing graduate from IIM Calcutta, currently she works in the corporate sector. She comes from an army background.)