Surgical Strikes By Judiciary On The Armed Forces - Redux

The role of the Armed Forces is to preserve and defend our country and ensure its constitutional writ runs within the geographical borders of the country.

Surgical Strikes By Judiciary On The Armed Forces - Redux

Editor's Note

MVI had published an article  by the author with same title on Sep 14, 2021. However ,the issues covered and points highlighted were  different  .
Link of the same is:

Surgical Strikes by Judiciary on The Armed Forces
“Lordships can borrow my last sentence to use in their next judgement while convicting an officer or a soldier of the Armed Forces for eliminating a dreaded terrorist.”

You must have come across one person who knows every aspect better than you: be it Astronomy, Astrophysics, Nanoscience, Medicine, Engineering, Law, Oceanography, National Strategy, Operational Art, History, Geography, Genetic Science, Physics, Aviation technology, Architecture, Palaeontology; further going into the realm of literature: Shakespeare, Keats, Tagore, Wordsworth, Hemingway, RK Narayan, Greek Philosophy, Indian Philosophy and all past scriptures from Rig Veda to future inventions of this and next century; the married blokes definitely know the answer; it is their wives.  Literally; amazed at God; to give so much knowledge, wisdom and confidence to them, unilaterally without exception.

However, there is one more institution that can compete with wives; it is Judiciary.  They know everything on earth and also in the cosmic realm and do not need an expert opinion from ‘amicus curiae’; which they rarely appoint.  They can pass judgements on all issues and make sarcastic or outrageous remarks. The nation has to lump their indiscretion which is assumed as ‘Wisdom of the Judiciary’.

Lordships in the past couple of years have passed one ruling after another trying to get women in all branches including the combat arms of the Armed Forces but were able to get them into all services and combat support arms.  Their length of service was extended and were given a permanent commission.  Then another order was passed that they can be ‘Commanding Officers’ of units.  The icing on the cake is to pass a judgement that women be admitted into National Defence Academy.  Savour the heading in the papers: “ANOTHER MALE BASTION BUSTED’ by the learned judges; blah blah…  Do you Lordship understand; what is the role of the Armed Forces of India?  I am not a misogynist; however, these things take time and cannot be thrust down the throat of the Armed Forces citing the gender gap. The women officers have a lower standard for passing their physical proficiency and Battle Physical Efficiency tests. The Lordships have rejected the difference in physical capability with the contempt it deserves.  Contempt on whom; merely showing contempt does not undo the fact? They have ensured the physical fitness of the armed forces is pandered down to the lowest common denominator.    Can we institutionally accept Commanding Officers to have a lesser physical capability than the troops they command? Your Lordships; it is not a desk job to view the physical capability with contempt.  Anyway; who will make you understand?

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The role of the Armed Forces is to preserve and defend our country and ensure its constitutional writ runs within the geographical borders of the country.  Take the case of Afghanistan; here, the Armed Forces failed the Government and the country ceased to exist.  It was left to scavengers to feed on the cadaveric remains of the country and its people. The most violent among those own the country and oppresses its people.  All the previous government functionaries like your Lordships have gone into hiding and counting their days for probable execution.  Women demonstrators are being shot and those who were members of the previous governments are being beheaded. Don’t we see what can happen to a country if the Armed Forces are defeated?  What would happen to a country if it is taken over by brutes and terrorists with the power of the gun?  Do you really still feel that you need to meddle with the Armed Forces which enforces the will of the people in our country?  Lordships without a shred of experience, knowledge and environmental realities; who’s past ten generations have not served in the Armed Forces and the next ten generations will probably not do so; take decisions to break, denigrate and play around with the very institution that enables their security, monthly pay and allowances? It is one institution by far has not imbibed the widely accepted and trending ethos of nepotism, corruption and materialism, which have infected literally every single branch of the government without exception: When I say without exception; the Lordships are intelligent enough to understand to whom all, it is implied? Yet; they are not happy and any petition with vested interests is seen through the prism of gender equality without once trying to read the Preamble of the Constitution that implicitly says that all rights and freedom are granted to people on the proviso; assuring the ‘unity and integrity of the nation’.  It is the duty of all citizens to contribute to this clause as that alone will enable all our rights and freedom.  No rights or freedom are unilateral and total.  All of them come only when we all ensure the unity and integrity of the nation.

Unlike in other organisations the Armed Forces have certain values, ethos and norms which are essential for cohesiveness and esprit de corps of a fighting unit. It is an onerous and sacred organisation that has to reform gradually and get the idea emotionally accepted by the members of the Armed Forces.  Have the Lordships ever visited the LOC or LAC of our country?  One cannot pass a decree that; so, and so can appear for the NDA Examination from tomorrow”.  It shows a lack of comprehension of the functioning of the Armed Forces.   However, when it comes to a ruling on OROP that virtually affects all the veterans and also those in service the same SC keeps delaying the case.  The last date was 30 Jul 2021 and due to a shortage of time, the hearing could not take place. Now, the next date has also not been given by the Hon’ble SC; driving the last nail on the Coffin of OROP?  Bravo! Lordships for your abiding wisdom; indeed, common soldiers cannot comprehend as the Lordship know everything about everything.

Coming back to our theme; if women and men are equal in all aspects then the Lordship should order the government that they should have physical tests of the same standard for both genders.  Lordships also can order the government to research in genetic engineering to put the male and female homo sapiens to exchange their physiological roles as well.  The Wuhan Institute of Virology has experts in ‘gain of function’ in species and their help can always be enlisted.

Next, as the Lordships have abundant and overflowing knowledge in every field, I suggest that an SC bench should be located in every formation headquarters.  During the war so many decisions are taken in the field of strategy, operational art and tactics.  The Lordships can scrutinise various options available to a commander whether to carry out left flanking manoeuvre or right, to suggest the depth of objective, the composition of task forces, to have a mobile defence or positional defence, the viability of Navy to interdict ‘Sea Lanes of Communications’ of our adversary.  Also, the IAF will need their directions for shaping the battlefield on our Northern Borders and the quantum of air effort to the Western vis-à-vis the Northern Borders. They can also advise on the Hybrid Warfare that would be unleashed by our adversaries in the two and half front conflict and the countermeasures to be undertaken. We will also need their valuable advice at lower levels; as to how many casualties which own forces must accept before shooting an armed terrorist who does not surrender? Lordships will definitely feel that the Armed Forces should not deprive the dreaded terrorist of his ‘Right to Life’.

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Lordships in their eternal wisdom convened the SC past midnight to hear the mercy petitions of Yakub Memon of 1993 Mumbai Blast case where 250 lost their lives and over 1400 were injured; then for Nitihari serial murderers and Nirbhaya rapists and murderers.  It appeared that they did not have confidence in their own earlier judgements? When they go to such extent to hear the pleas of terrorists, rapists and murderers, why should not the Armed Forces incur at the least ten casualties on themselves before shooting a poor terrorist who is merely misguided?  As per an interim judgement of SC delivered on 8 Jul 2016 the Lordships aver; terrorists are not necessarily enemies of the state; as also; “a person carrying a weapon in a disturbed area in violation of a prohibition to that effect cannot be labelled a militant or insurgent”.  What do they imply that the said person carrying arms in a prohibited area has to prove his credentials as a terrorist by killing and wounding an ‘X’ number of our soldiers/officers?  I think they should also specify the numbers so that his intent can be established beyond doubt.  If he has fired at the security forces and misses them, will it be a valid reason to declare him a terrorist?  No; he should prove his intent by killing the security forces in sufficient numbers:  As it would still be difficult to determine the intent of such an honourable person the Lordships should have a mobile bench with the army units who will seek their wise judgement before eliminating him.  A priest can also be taken to the site to deliver sermons on ‘Ahimsa’ on a megaphone before we shoot him.  It will certainly satisfy the Lordships that the Army has exercised restraint.  After the army eliminates him, the case in detail will be studied by a bench of seven SC Justices.  ‘Right to Life’ of a terrorist in a civilised society is more important than the ‘Right to Die’ for members of the Armed Forces of our country.  Lordships can borrow my last sentence to use in their next judgement while convicting an officer or a soldier of the Armed Forces for eliminating a dreaded terrorist.

Ultimately, the bottom  line is that we may lose the war; it means nothing so far as we are legally right in losing the war as perceived by the Hon’ble SC, which anyway would cease to exist after the war.

About The Author

Lt Gen Kamath is a highly distinguished general who has held some of the most coveted appointments in the Indian Army. He is a notable commentator on Defence & National Security issues

(Views expressed are the author's own and do not reflect the editorial stance of Mission Victory India)

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