INDIA: Jurist, stop preaching 

The observations made by the Supreme Court of India in a case concerning disciplinary action against a former Major of the Indian Army contradict the Court’s own profile. Dismissing the appeal filed by the Major, who had filed the appeal aggrieved by the Army’s action against him, the court held that discipline is paramount in public office.

In an attempt to define what discipline implies in public office, the Court said the term includes “rreproachable conduct, restrained attitude, understanding of responsibility and adherence to discipline”. Only, it took 21 years for the Court to arrive at this conclusion, an impediment that negates all the qualifiers that the Court attributed to the concept of discipline.

That there is gross lack of discipline within certain limbs of the armed forces of the Indian state is beyond doubt. The Court in fact has played a considerable role in the deteriorating state of affairs of the armed forces. For instance the Armed Forces (Special Powers) Act, 1958 is a draconian law that provides statutory impunity to the armed forces stationed in areas declared ‘disturbed’ in India. The state of Manipur is an example.

The Asian Human Rights Commission has brought to the attention of the Court at least 43 cases of crimes committed by the armed forces stationed in Manipur over the past eight years. These cases include that of custodial rape, murder, torture, extortion and of disappearances. In the same vein, the AHRC has brought about 200 such cases of crimes committed by the Border Security Force stationed along the Indo-Bangladesh border in the West Bengal state during the same period of time.

Though it has ample powers to act suo motu, the Court has done nothing about these cases. Suo motu powers have been used extensively in the past, but of late they have been used more by the Court to silence those that may dare to criticise the Court, i.e. by initiating contempt of court proceedings.

And, how does the Court expect the armed forces to be a disciplined unit when these forces, having absolute impunity, commit crimes? The Court has had the opportunity to decide upon the constitutional vires of that draconian law, the AFSPA. On this occasion, the Court held the law constitutionally valid, even though the Act provides impunity from prosecution to the forces stationed in areas where the Act is implemented. Perhaps this single legislation may have claimed more lives than were lost during India’s independence struggle. Certainly no one has — the government of India included — statistics to agree or refute such a statement, and it has been nobody’s concern so far. Yet, there is no scarcity in rhetoric about public office and discipline.

The Court itself lacks ground to deal with questions of discipline. Corruption within the Indian judiciary is of such nature today there are websites dedicated to this, for instance The Court has been extremely guarded and has held out a thick hide to even the most serious allegations of corruption and malpractices. Today, lawyers have started expressing lack of faith in the country’s judiciary. Ordinary citizens have lost any such faith long ago.

Empty rhetoric is a common characteristic facade of India’s institutions. The world’s largest democracy, having a substantial number of its parliament members facing criminal charges has just concluded a session marking 60 years of the country’s parliament, where members like the Prime Minister of India called for introspection of the members to uphold the integrity and dignity of the house. Though members repeatedly expressed concern about people rapidly loosing faith in the parliament, there was no discussion whatsoever as to what actions would be taken to gain back people’s confidence in the country’s parliament. And, there was absolutely no mention of the unanimous resolution to launch India’s Second Freedom Struggle taken by parliament 15 years ago to commemorate 50 years of independence, wherein members called for citizens to fill up jails in order to free India from communalism, casteism, criminalization, and corruption!

In the melee of empty, lazy, and ridiculous rhetoric, the worst affected are the basic principles of equality and justice, on which the nation is supposed to be founded. Isn’t it appropriate for an institution like the Supreme Court of India to initiate action and bring about a change away from unacceptable status quos? It could be in the form of initiating actions against those that breach the Court’s own directions, for instance, with regard to the D. K. Basu case and the Prakash Singh case, two very important cases that have the potential to change the topography of policing in India for the good.

Sadly, the Court appears to be ignoring its own mandate, one that it is expected to undertake, and this despite being in the notice of direct and intentional violations of the Court’s dictum. Instead, the Court continues preaching norms, which unfortunately the Court itself has failed to observe.

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Picture courtesy: Supreme Court of India