Systematic demolition of the edifice of the Indian Constitution: it is now the turn of the Judiciary

Systematic demolition of the edifice of the Indian Constitution: it is now the turn of the Judiciary

Major General Mrinal Suman

April 20, 2018 will always be remembered as a black day in the history of independent India. Seven opposition parties led by the Congress submitted a proposal to the Vice-President of India, seeking to impeach the current Chief Justice of India (CJI).

Earlier in the second week of January this year, in an unprecedented move, four senior-most judges of the Supreme Court held a press conference. They were scathing in their attack on the functioning of the Supreme Court and stated that ‘the administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months’. They, quite unsuccessfully, tried to disguise their public dissention as an extraordinary event ‘to preserve democracy in the country’.

However, the underlying cause of their discontent got revealed when queried about the main issue of concern. The reply was ‘allocation of cases by CJI’. “There have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the chief justices of this court selectively to the benches ‘of their preference’ without any rational basis for such assignment,” they alleged.

When asked if they wanted the CJI to be impeached, Justice Chelameswar’s response was shockingly provocative and instigative. “Let the nation decide,” he said without any hesitation. It was an open suggestion to the dissidents of all hues.

Allocation of cases to different benches is the prerogative of CJI. He carries the authority of being Master of the Roster. The four unhappy judges felt that they were being assigned less important cases. Honestly, one is surprised at their assertion. One thought that every case that comes before the Supreme Court is of utmost importance ‘with far-reaching consequences for the nation’, as every judgment acts as a precedent and guidance for the subordinate judiciary across the country to follow. Where is the question of more or less important cases?

The four judges would have been justified in feeling aggrieved if no cases were being assigned to them, forcing them to sit idle. But that is not the case. They want cases of their interest. It will be interesting to know the number of cases pending before them and the efforts put in by them to dispose them. If they are already well-loaded, they should concentrate on dispensing justice expeditiously rather than go public to demand ‘more important cases’ – finish work in hand and demonstrate your industriousness, before seeking cases of choice.

By going public, the judges trashed the basic norm of organisational conduct – one should never fault or criticise one’s organisation publically while being a part of it. To bring disrepute to one’s organisation by ‘washing dirty linen in public’ is an act of gross disloyalty and unpardonable sacrilege. Issues, if any, must be raised and resolved in-house. If still aggrieved, the right step is to quit the organisation; thereafter one is at liberty to air one’s grievances.

Taking the clue from Justice Chelameswar’s advice, six opposition parties joined the Congress in launching a vicious campaign to impeach CJI. The charges levelled against him are not only frivolous but are laughable. It needs to be recalled here that Article 124(4)  of Constitution of India stipulates that the impeachment of a supreme court judge can only be carried out on the ground of ‘proved misbehaviour or incapacity’. How can the allocation of cases to different benches be termed as misbehaviour warranting impeachment? The Vice-President has rightly rejected the notice, terming it to be lacking in merit.

A look at the chronology of events shows the devious designs of the unscrupulous. Justice BH Loya, who was hearing CBI's case of murder against BJP chief Amit Shah, died of a cardiac arrest in Nagpur in December 2014.

With a view to target Shah, a number of appeals were filed in the Supreme Court seeking independent investigation into Loya’s death. Opposition parties wanted the case to be assigned to a ‘considerate bench’, hoping to get a favourable verdict.

CJI admitted the case. On 12 January, he assigned it to a bench that did not include any of the four dissenting judges. Both the opposition leaders and the dissenting judges were furious. The judges vented their anger at the press conference the same evening. The question arises as to why were the said judges so keen to hear the said case. What special interest did it hold for them?

During the hearing of the case, with a view to put pressure on the bench, the Congress started collecting signatures for the impeachment of CJI. A total of 71 members signed. It was an ominous move of the most vicious kind. It was an open challenge to the top court of the country – rule in our favour or else face impeachment.

Having conveyed the threat, the Congress leaders waited for the verdict in the Loya case. They had expected CJI to get browbeaten and fall in line. Had the verdict been according to the Congress’s demand, impeachment move would have been aborted. But it was not to be.

The court dismissed the petitions on 19 April and an enraged Congress submitted the notice for impeachment the very next day. Incidentally, as the signatures were taken quite some time back, seven signatories had since retired and the list contained only 64 valid signatures.

By acting in an unbecoming manner, the four judges have inflicted immense damage to the esteemed institution. It has left the countrymen stunned. It will take decades for the Supreme Court to regain its lost reputation. Questions have been raised about the impartiality of the four judges. Why were they overly keen to hear Loya case appeals?

As the judges are unhappy with the functioning of the Supreme Court, the most honourable thing for them to do is to resign. In any case, they have lost their credibility as regards fair and objective dispensation of justice. In case they do not take such a step voluntarily, senior members of the bar and the eminent jurists should put pressure on them.

Justice Ranjan Gogoi has ruled himself out for the appointment of CJI. He accepted the fact that the immediate cause of the press conference was the assignment of petition in the Loya case. Why did he feel so aggrieved for not getting the said case? Although he said that they had come before the public ‘to pay a debt to the nation’, many feel that it was in fact ‘to pay a debt to the Congress’. Justice Gogoi has demonstrated his bias and subjectivity openly.

One is not surprised at the conduct of the Congress. It is on a ventilator and wants to retain its relevance at every cost, even if it entails destruction of all the hallowed institutions of the Indian democracy. It wants to subvert the system from within through the planted functionaries. When thwarted in its nefarious designs, it resorts to intimidation tactics through scurrilous innuendoes. All that talk of saving democracy is pure hogwash.

The parliamentary standing committee on law and personnel has recommended that the retirement age of SC judges be raised to 67 years from the present 65 to tide over the existing shortage of judges in the highest court. Modi government should immediately effect the change. Even otherwise, Justice Gogoi’s claim must be disregarded. He is unfit for the top post.  

Interestingly, a number of senior leaders of the Congress have disassociated themselves from the impeachment proposal. Have they rediscovered their spine to disobey the dynasty or is it simply a case of  rats abandoning a sinking ship? It is certainly an ominous sign for the party that ruled this country for more than six decades. However, no tears need to be shed on its suicidal downfall due to its anti-national politics. It is in self-destruct mode.*****

       

Army’s Aid to the Railways Raises Many Eyebrows

Army’s Aid to the Railways Raises Many Eyebrows

(Geopolitics April 2018)  

Major General Mrinal Suman

September 29, 2017 will long be remembered for the tragic death of 23 people in a stampede on a narrow foot-over-bridge (FoB) connecting Elphinstone Road and Parel suburban railway stations in Mumbai. Consequent to the national outrage, the railway authorities woke up to the requirement of having newer FOBs at several suburban stations with wider pathway to handle large rush-hour crowds. Three stations (Elphinstone Road-Parel, Currey Road & Ambivali Road) were identified to be in immediate need of FOBs.

As time was of the essence, the Railway Minister wanted the said FoBs to be built expeditiously. The railway engineers wanted more time. Hence, a request was made to the defence ministry. As is its wont, the army never shies away from challenges, especially when the well-being of the countrymen is impacted. Although the army possesses no expertise in such civil works and the construction had to be carried out without disrupting movement of the suburban trains, the onerous task was readily undertaken by the elite Bombay Sappers located at Pune.

Although plans for FoB at the Elphinstone Road station were approved in 2015, it was only the September tragedy that galvanised the somnolent engineering department to initiate call for bids. Therefore, many felt that it was the disappointment of the Railway Minister Piyush Goyal with his own ministry’s functioning that forced him to make such a request to the defence ministry. Worse, failure of the railway engineers to accept the  challenging time-bound assignment is seen by many to be indicative of their  lack of self-confidence.

As expected, a major row broke out. Political parties were quick to jump into the fray to fault the government. Punjab Chief Minister Amarinder Singh tweeted, “The army’s job is to train for war, not to be used for civilian works... It will set a very bad precedent.” Former Jammu & Kashmir chief minister Omar Abdullah commented, “The army was to be a measure of last resort to be called upon in extreme emergency. Now it seems like it’s the 1st number on the speed dial.”

For asking the army to construct FoBs, the government has been faulted on two counts – one, misusing the army for civilian tasks, and two, for showing lack of confidence in the concerned civilian agency (railways). Similar questions were raised when the army was tasked to construct a foot bridge at the Jawaharlal Nehru Stadium during the Commonwealth Games at Delhi in 2010. The need arose as the under-construction bridge collapsed a few days before the start of the games. The army completed the task in five days.

Role and Responsibility of the Army

Most social scientists consider army to be the nerve centre of the state, being the most ancient, vital and hierarchy based of all human organisations. In fact, it is considered to be the embodiment of a nation’s conscience and will. It is the most potent instrument available to the state to safeguard national security. It cannot fail the nation. Therefore, its role assignment deserves in-depth appraisal and due deliberation. Indian army’s responsibilities can be grouped under the following three broad heads:-

a)   Military Tasks. In addition to defending the nation against external threats, it is also called upon to counter insurgent movements that pose grave internal threat. Whereas insurgency is a socio-political problem, an effective counter-insurgency operation has to be based on an integrated politico-military approach. In order to create conducive environment for the initiation of the political process, the army has to bring the level of violence down to the expedient level.

b)   Aid to Civil Authority. Aid to civil authority is mandated by law. Under Para 301 of the Defence Services Regulations, the tasks that can be assigned in aid to civil authority include maintenance of law and order; maintenance of essential services; assistance during natural calamities such as earthquakes and floods; and  any other type of assistance which may be needed by the civil authorities. As can be seen, the last one is an open ended provision. It must be mentioned here that when called upon to aid the civil authority, the army has to respond; it has no discretion in the matter.

c)   Civic Action Tasks. These are tasks that the army undertakes in the larger national interests. They encompass all activities performed by the army for the socio-economic betterment of the people and to help improve its image. In areas where civil institutions are non-functional, the army runs schools, provides basic medical cover, runs water supply schemes, constructs play grounds and provides vocational training to the local youth. These activities are collectively referred to as civic action programmes.

Launching of FoB at Elphinstone Road

Quite understandably, role-assignment under aid to civil authority is country specific as every country has to countenance dissimilar geo-political-strategic environment. For example, in the developing countries, aid to civil authority in the maintenance of law and order is by far the commonest and most critical assignment. After centuries of deprivation and exploitation, disadvantaged segments of the society agitate for an equitable distribution of resources. Every agitation inevitably results in violence and the army is summoned to help maintain order.

Further, there are certain services whose efficient and uninterrupted functioning is necessary for the nation and the society at large. The army with its large pool of highly disciplined and trained manpower is often summoned to run these essential services in times of their break-down. Assistance during disasters and natural calamities is another common form of aid to civil authority. Every earthquake or flood sees army soldiers carrying out rescue and rehabilitation tasks.

Canopy Work

In addition to the above clearly delineated responsibilities, there are numerous other fields in which the army participates for the good of the country. For example, construction of pontoon bridges to facilitate movement of pilgrims during Kumbh Melas is a regular task undertaken by the army. Such assignments can either be assigned to the army by the government or can be initiated by the local army formations of their own volition for the benefit of the citizens at large. Such participation often extends to non-traditional areas where in the army acts as a nation builder; a modernising force; and an agent of order, efficiency and social change. These activities are commonly grouped under the concept of military civic action.

An Appraisal of Military Civic Action

Military civic action entails employment of army on projects useful to the local population at multiple levels in such fields as education, training, public works, agriculture, transportation, infrastructure, communications, health and sanitation. In fact, the list includes all programmes that contribute to economic and social development.

As the traditional role of the army continues to be the security of the country, impact of the role expansion on its professionalism has been the subject of much debate for long amongst the policy makers, political scientists, sociologists and military leaders.

Advocates of military civic action are convinced that the army possesses considerable spare potential, which when suitably harnessed in peace, can accelerate the process of economic development and modernization of the country. They feel that through civic action, the army acts as an agent of social integration. Professor Edward Shils is of the view that the military serves to integrate ethnic groups into a national community, widen horizons beyond villages and locality, keep young men from being infected by nationalistic demagogy and give then a greater concern for the nation as a whole. According to sociologist Morris Janowitz, military becomes a device for developing a sense of national cohesion – a social psychological element of national unity – which is especially crucial for a nation which has suffered because of colonialism.

 Completed Elphinstone Road Bridge

In addition, civic action is considered to be an indispensable means of bringing the soldiers and the citizens together. They get to know each other better. Contact with the army promotes cohesion in the society. There are numerous posts on the social media eulogising the dedication and commitment of the soldiers, as witnessed by them at the FoBs. Most Mumbai citizens saw the soldiers working at close quarters for the first time and admitted that they had never been exposed to such a work culture ever before. Thus, civic action helps improve the standing of the army with the population.

On the other hand, many purists feel that the army should concentrate only on its primary task and not divert attention and resources to non-military assignments. They cite four reasons for their opposition. One, bringing in the army to carry out civilian jobs amounts to an admission of the failure of the state and the civil set-up. It shows the replaced civil agencies in poor light, thereby lowering their public standing and morale. In the case of FoBs, they draw attention to the fact that questions are being raised about the competence of the railway engineering department.

Completed Staircase of FoB

Two, excessive dependence on the army can breed a certain degree of complacency in the civil agencies. Requisitioning army provides them an easy way out. Instead of preparing themselves to undertake major challenges that their charter of duties throws up, they tend to resort to the easier path of summoning army’s help for less-demanding tasks as well. Today, the army is called even to rescue a child stuck in an open tube-well bore.   

Three, undue involvement in non-military tasks may result in the loss of training time, impeding operational preparedness and adversely affecting army’s combat effectiveness. Such duties can also prove taxing to a soldier psychologically. Frequent switching of roles can dilute a soldier’s focus on his primary task. Four, it can also have an undesirable affect on the apolitical nature of the army, which may start entertaining ideas of a permanent role for itself in civilian functions. It is more applicable to those countries where the civilian administration has yet to acquire the necessary maturity.

It is apparent from the above that both schools of thought reflect extreme viewpoints, probably due to the influences exerted by different politico-socio-military environment. Arguments in favour of civic action are as potent and cogent as those against. Where do we draw the line? One thing is certain, military civic action cannot be faulted as a concept. For, it has always proved highly effective whenever undertaken with due diligence, maintaining balance within acceptable limits as excessive use can prove detrimental.

Side View of the Completed FoB

In view of the above, it can be inferred that Indian army should continue to participate in well-selected civic action activities, albeit with two provisos. One, only the effort that the army can spare without affecting its operational efficiency should be diverted towards civic action tasks. For that, the army’s opinion must be taken. In other words, nothing should be done to dilute army’s focus on the primary task of national defence.

Two, selection of civic action programmes should be such that they do not undermine the civil administration – civic action should supplement the efforts of civil agencies and not attempt to replace them. The army’s entry should not be seen as a failure of the civil agencies to do their job. The army can perform a task for a limited time only and thereafter the civil agencies will have to resume their responsibilities. Hence, civic action should not make them lose their credibility and standing in the eyes of the public. That shall do incalculable harm to the authority of the civil administration.

The Way Forward

There is no disputing the fact that the primary raison d’être for the existence of the army is to ensure national defence against external threats and internal disturbances. Role-expansion should never be at the cost of the ‘professionalism’. However, an army is also an embodiment of a nation’s conscience and will. Being a part of the apparatus of the legitimate government, military owes allegiance to the people of the country. In the case of developing countries, armies are more often called upon to act as a major catalyst in nation building tasks to accelerate the process of economic development and modernization.

The Bombay Sappers prove their mettle yet again In the wake of the public outrage at the tragedy of 29 September 2017, the Railways sought the help of the army engineers for expeditious construction of three FoBs at Elphinstone Road, Currey Road and Ambivali Road railway stations in Mumbai. It was an unprecedented request but the army never shies away from the challenges, especially when the well-being of the countrymen is affected. The task was assigned to the legendary Bombay Sappers, located at Pune.  The task entailed site reconnaissance, soil testing; development of structural plan and drawings; pile foundation and cap construction; erection of piers; construction and placement of bridges; and building of  landing platforms, stair case, canopy and protective wire mesh.  As the time was of essence, systems approach was followed and multiple activities were carried out simultaneously. Working closely with the railway authorities, issues affecting safety of commuters, regular running of trains and site imperatives were speedily resolved.  Commencing the work effectively on 24 November 2017, the army engineers completed all the three FoBs in a total period of 117 days. Whereas FoB at Elphinstone Road is 240 feet long, FoB at Curry Road is 100 feet and the one at Ambivali Road has a span of 60 feet. All FoBs were opened for public use on 27 February 2018.

In a recent talk, the army chief General Bipin Rawat revealed that a major part of the army's budget was being utilised in developing infrastructure, schools and hospitals in remote areas of the country. In fact, civic action has always been an integral part of Indian army’s functioning, aimed at winning the hearts and minds of the populace, especially in the regions affected by social discontentment and upheaval. Effective use is being made of civic action as a tool to curb estrangement of the fringe elements with the government.

The government’s decision to ask the army to construct FoBs in a crisis situation cannot be faulted. However, it must remain a one-off engagement; more the exception than the rule.

Finally, a note of caution: civic action should aim to supplement the efforts of the civil authority and not replace it. Equally importantly, the primary role of the army must remain undiluted. Being the last bastion of national defence, the army cannot fail the nation. As warned by Hugh Hanning, civic action must not be construed as substitution of warfare by welfare.*****