If it please Your Lordships—and even if it doesn’t—I am exercising my fundamental right to freedom of expression and right to dissent.
I am expressing my dissent against the opinions expressed by the Hon’ble Supreme Court on August 12, 2016, against the country’s police force and by implication our army, in J&K and I am exercising my right to freedom of expression by expressing my dissent in writing.
This I am compelled to do because within three days of the Hon’ble Supreme Court’s disparaging remarks about the state’s police force, yet another selfless and brave uniformed man died in the Kashmir Valley hunting Islamic terrorists who were determined to make a jihadi point on our Independence Day. And five days after the Hon’ble Supreme Court’s lecture on human rights to the “ill-trained” police, on the 17th, two army officers and another policeman have been killed by jihadis in the Baramullah district of the jihadi parasite Kashmir Valley.
Milords, can our Hon’ble courts protect the human rights of our police and army and how can our courts render justice to the widows and orphaned children of our men in uniform who die so that some of us who live because they have died, may thump the pulpit about human rights?
Just three days prior to our Independence Day, on the 12th, Your Lordships could not resist pontificating to the police and army about police brutality, human rights, restraint and all that ballyhoo. The CRPF Commandant, aged just 49 years, who was shot and killed by jihadis on the country’s 69th Independence Day, has left behind a seven-year old daughter who will now grow up without a father. I wonder what this little girl, when she grows up and has questions about why and how her father died, will think of Your Lordships’ lecture to the army about the human rights of stone-pelting, police-killing blood-sucking parasites now living in the Kashmir Valley after they had terrorised and genocided Kashmiri Hindus, forcing them to abandon their homeland. But that little matter of Hindu genocide Your Lordships has not exercised the Hon’ble Supreme Court as much as the alleged violation of the human rights of Kashmiri stone-pelting, police-killing Sunni Muslims.
The jihadi, parasite Valley Your Lordships, is living off the blood, sweat, hard work, tax-payer money of the rest of India, living off the selfless lives—and untimely deaths—of our men in uniform who are on duty in this thankless state, and living off the invisible, voiceless sacrifices which their families make for our country.
It is my considered view Milords, the Hon’ble Supreme Court while pronouncing orders in court should refrain from such observations which seriously violate the dignity and authority of other pillars of our democracy—Office of the President, elected governments, bureaucracy, police, paramilitary and army. I wish to bring to the notice of Your Lordships the observations allegedly made by the Hon’ble Supreme Court about the “ill-trained” police—in the words of the Hon’ble Supreme Court—in the Kashmir valley.
Your Lordships are alleged to have waxed eloquent about the “land of salt satyagraha, fast-unto-death and do or die”. Your Lordships surely chose the safest fig-leaf when you harangued our men in uniform in open court on that day. While I have my own views on Gandhi and his salt satyagraha and fast-unto-death—he never died when he fasted—I wish to submit to Your Lordships that when our police and army die in Kashmir, it is not “do or die”, it is “do and die”.
Excerpts from what the Hon’ble Supreme Court said:
Kashmir has been the victim of separatists’-driven protests, but abuse by an ill-trained police force exacerbates violence and triggers public anger.
The court turned to the police and cautioned the force against “indulging in excesses which become barbaric, not halting even after controlling the situation”.
The judgment, authored by Justice Sikri eloquently recalled the history of legitimate dissent in the “land of Salt Satyagraha, fast-unto-death and do or die”.
The apex court then points to how demonstrations have been twisted out of shape by religion, ethnicity, caste and class divisions—all of which have been “frequently exploited to foment violence whenever mass demonstrations or dharnas, etc, take place”.
“Unruly groups and violent demonstrations are so common that people have come to see them as an appendage of Indian democracy,” the judgment said.
The court points to how violence triggers more violence from the police, who use excessive force to control the mob. But this brutality of the police drives citizens away from the State.
“This in turn exacerbates public anger against the police. In Kashmir itself there have been numerous instances where separatist groups have provoked violence,” the Supreme Court observed.
The apex court urged police personnel to restore calm with “utmost care, deftness and precision” so that no harm is caused to human life and dignity. It has to be seen that “on the one hand, law and order needs to be restored and at the same time, it is also to be ensured that unnecessary force or the force beyond what is absolutely essential is not used”.
The court said the State cannot hide behind the defence of sovereign immunity when there is a “patent and incontrovertible” violation of fundamental rights through brutality, torture and custodial violence.
Your Lordships must know that the Hon’ble Supreme Court was speaking in the exact same language as Amnesty International on the exact same topic on the exact same day in Bengaluru! I respectfully submit to Your Lordships that the Office of the President, elected governments, and our men and women in uniform, the police, para-military and army do not have the comfort and security of anything similar to the “contempt of court” absolutism in jurisprudence which insulates Your Lordships from the kind of unrestrained and harsh criticism, loose comments and gratuitous insults which Your Lordships sometimes hurl at other pillars of government and administration including law enforcing agencies.
Judiciary on collision course with Office of the President of India
Let me begin with the intentionally worded language of Your Lordships when the Hon’ble High Court of Uttarakhand faced off with the Office of the President of India and the careful language used by Your Lordships in the same breath in your self-description.
Legitimacy of the President’s decision to suspend the Uttarakhand assembly is subject to judicial review as even he can go wrong, the Uttarakhand high court observed on Wednesday. The court was responding to an argument by additional solicitor general Tushar Mehta, appearing on behalf of the Centre, who contended that the President relies on his political wisdom in many matters. “You cannot have absolutism. President can go wrong,” the division bench of chief justice K. M. Joseph and Justice V. K. Bisht commented. The judges went on to remark that the court’s order, too, is “always open to judicial review.”
Correct me if I am wrong Your Lordships, but I was raised to believe that the actions of the highest constitutional authority of India, the President of India, are not justiciable and cannot be subjected to judicial review. I am sure every right thinking citizen of this Republic would agree that something is seriously amiss if judges of our High Courts and Supreme Court, who cannot be dragged before any court of law for any crime but can only be impeached by Parliament with the additional cushion for soft landing that erring judges have the option to resign before being impeached, can position themselves above the President of India and can state in open court that the “President can go wrong”.
By asserting that the First Citizen of India can go wrong and therefore even a high court judge can sit in judgement of the Office of the President, I respectfully submit to Your Lordships that by maintaining silence on this startling claim by two judges of the Uttarakhand High Court, Your Lordships have set a dangerous precedent . Your Lordships, if judges can state without being challenged or reprimanded that the President can go wrong and therefore the President’s actions are subject to judicial review, I foresee a frightening scenario when in the future Your Lordships may be emboldened to order our soldiers to return to the barracks in the midst of a war because Your Lordships think the President, as Commander-in-Chief of our army, did not have all facts on the table before him, or that he was misguided or misinformed and was therefore wrong in his decision to deploy our military in response to a perceived threat to the country’s security, sovereignty and integrity! This is not a stretch Your Lordships, because if we open the door of judicial review of the President’s actions, the door will forever remain open. I respectfully submit, Your Lordships should bang this door shut. Failure to do so will inevitably lead to chaos, sooner than later; considering Your Lordships concern for the human rights of stone-pelting, police-killing jihadis and other terrorists.
While asserting that there can be no absolutism and the President can go wrong and his actions are therefore subject to judicial review, Your Lordships also admit that your judgements and orders too are subject to judicial review, but here is the thing Your Lordships. You carefully, intentionally, with great foresight do not say, “Judges can go wrong”. Dear me, no. Your Lordships concede that judicial review of orders is possible but do not say Your Lordships can also go wrong because Your Lordships know that any admission that judges can go wrong will seriously dent the armour of judicial infallibility.
I will conclude my right to freedom of expression and right to dissent with a few poignant words about a table for one by Aditi Hingu. Your Lordships it is poetic justice that the author wept tears of blood for the soldier who will never return on the same day that Your Lordships castigated our men in uniform, and on the exact same day Amnesty International insulted our police and army on our soil. Your Lordships chose a safe and privileged career and a life of pomp and plenty for your families. Our police and army voluntarily and selflessly chose a life with the real possibility of untimely, premature death. Your Lordships must keep this in mind every time a similar case comes up before you. Your Lordships owe this much to them and their families.
17th August 2016
Your Lordships are invited to also read:
The Table for One – Aditi Hingu
On the eve of the 70th Independence Day of our country, I would like to share a story with the readers. This story is not about a person or an event. The story is about a solitary dining place at the Cadets Mess at the National Defence Academy (NDA) at Khadakwasla. Set up in December 1954, NDA is the first tri-services academy in the world. It trains cadets for permanent commission in the three services (Army, Navy and Air Force) and its alumni have fought valiantly in every major conflict.
Cadets live on the campus and develop strong bonds with their course mates. However, NDA is singularly different from other campus in one way—not only do the cadets forge bonds with each other, an equally strong bond is formed with all those who would have graduated from NDA , even if many years ago. A kinship is developed and the ethos of never letting down a fellow comrade-in-arms is strongly ingrained. Nowhere is this symbolized as poignantly as in the Cadets Mess at NDA.
Apart from the regular dining tables, the dining hall has an empty table near the entrance with a forlorn chair.
It is laid out for a solitary diner with complete crockery and cutlery. However, it is never ever occupied: the chair is tilted forward and the crockery is upturned. The table has a vase with a red rose and a red ribbon, an empty glass, an unlit candle, a slice of lemon and salt on the bread plate. A casual visitor may be pardoned for wondering—whom is this place for?
Why the upturned chair, the empty glass, a rose and ribbon?
This table for one is in remembrance of all those soldiers who fought in various wars but never returned—neither alive nor dead. They were either taken as Prisoners of War (PoW) or declared as Missing in Action.
In the wake of the Shimla Agreement after the Indo-Pak War of 1971, India repatriated over 90,000 Pakistani PoWs but shamefully failed to secure the release of 54 Indian PoWs.
As per the Third Geneva Convention (both India and Pakistan are signatories to the same), every PoW must be treated humanely, be allowed to inform his next of kin and International Committee of the Red Cross of his capture, given adequate food, clothing, housing and medical aid, and released quickly after cessation of conflict.
However, in complete defiance of these terms, there has been no information about the 54 soldiers—even though it has been long wait of 45 years for their families and comrades since the war ended. Despite proof of Indian soldiers languishing in Pakistani jails and sustained efforts by their families to secure their release, nothing tangible has happened. Bureaucratic files moved, papers were pushed—but to no avail.
Fifty-four young men were condemned to rot in jails for having committed the sin of fighting bravely in a war that was not created by them.
The trauma and torture that would have been inflicted on them cannot even be imagined. Their families were doomed to spend the rest of their lives doing the rounds of different Government offices and persuading, requesting and begging an indifferent politico-bureaucracy to bring back their loved ones.
Aged parents went to their graves with broken hearts and children grew up without their fathers.
Many of these soldiers were as young as 25 years old, married for not more than a year or two.
Imagine the plight of a 23-year-old girl—who lived with her husband for 1 year and led the rest of her life fighting a callous government for securing her husband’s release.
Life passed both her and her soldier husband by – she was neither a wife, nor a widow; could not experience motherhood; doomed to decades of uncertainty, seeking only clarity or closure—but getting neither.
Subsequent petitions by children who grew up without fathers led to the ministers flippantly asking them, “Do you think they are still alive?”
I wonder if any minister would have thought the same if his father/brother/son were languishing in the Pakistan jails.
Even if one of the soldiers (who may have been alive) can be brought back, it would mean closure for at least one brave family.
Numbers are not important here, what is important is how a nation can willfully and shamelessly forget its own people.
But while the nation has forgotten these men, their fellow soldiers haven’t.
The table for one is a poignant reminder to the cadets that the missing men were carefree youngsters like them, who roamed the same halls and whose boisterous laughter would have resonated within the same walls.
Every item of the table for one symbolizes something poignant.
The forlorn single chair is symbolic of the overwhelming odds that the conquered prisoner must have faced.
The unlit candle speaks about the insurmountable spirit that would not have broken despite capture, and possible extreme torture.
The upturned plate and the empty glass acknowledge the fact that these PoW may never return.
The red rose is reminiscent of the patience of the families that are still waiting to embrace a loved son, a beloved husband, a younger brother and an indulgent father.
The lemon and salt symbolize the bitter fate, heartbreak and tears that are left for the families who deal with uncertainty.
The red ribbon is reminiscent of the red ribbon worn on the lapel of all their supporters who bear witness to their determination to get a proper accounting of these missing soldiers. It is in the honour of these men, that the armed forces have kept the tradition alive for the last 45 years. However these men did not belong only to an institution called the Indian Armed Forces.
They belonged to a nation called India.
As we celebrate the Independence Day wearing the obligatory tricolour clothes and listening to patriotic speeches and songs, perhaps it would be fitting to spend a minute or two in reflection.
Reflect on what is it that makes a young man risk all for his country—a fairly tenuous ideal in these days when everything is defined by material success or in the ability to create anarchy in the name of freedom of expression?
What is it that makes a 30-year-old man leave his beautiful wife and young kids behind and serve for 2 years at the inhospitable terrain of Siachen?
What is it that makes a 25-year-old jump into a raging river to rescue civilians during floods, knowing well that the same set of people may pelt him with stones a year later?
As we enjoy our country’s Independence Day along with our loved ones, spare a thought for a family where a son has been missing for decades, for children who don’t even know what their father would be looking like now and for men who are still waiting for their comrades to come back.
Let us at least remember their sacrifices and sympathise with those who are still clinging to the ever-fading hope of reuniting with their loved ones.
The table for one waits wistfully for them to return.
Incredible India! Jai Ho! – Sify, 12 August 2016
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