The International Court of Justice (ICJ) quandary in Saurabh Kalia’s case

Many issues arise from the unfortunate series of events in the last few days related to a father’s fight for justice.

Mr Kalia has spent the better part of the past 13 years seeking justice for the perpetrators of the barbarism unleashed on our soldiers in the Kargil War, including his son, Late Captain Saurabh Kalia.

It seems that the Govt has done little to apply balm in this very unfortunate event which can send chills down the spine of any living soul. As reported widely by the media, Mr Kalia has now decided to approach the Supreme Court praying for directions to the Union of India that it should approach the International Court of Justice (ICJ) in this regard.

Elements in the Govt have rendered their voices of support to Mr Kalia’s request to the official establishment for approaching the ICJ. However such voices of support are hollow to the say the least. I say this because similar directions to the Govt of India for approaching the ICJ were passed in December 2011 by the Gujarat High Court in a long pending case filed by the late General Aurora, the details of which were reported earlier on this blog. However the Central Govt approached the Supreme Court challenging the directions of the High Court as far as they related to approaching the ICJ (Para 27(a) of the HC judgement). The Central Govt had also sought a stay on the operation of the directions of the HC which was granted by the Hon’ble Supreme Court.

If true, it thus seems silly when as reported it is stated by the Govt that the file on the Saurabh Kalia issue related to the matter of approaching the ICJ is still alive, pending and shuttling between the Ministries of Defence and External Affairs. I say it is silly since the Govt has already made it clear on oath in Gen Aurora’s case that it is not in favour of approaching the ICJ, and has in fact obtained a stay on the HC directions thereafter. Double speak or lack of coordination, I cannot say with certainty till the time a clear-cut statement is issued by the MoD or MEA.

There is yet another angle to the matter. Vide Article 36 of the applicable statute, the ICJ can only be approached by States and that too with the consent of the parties involved, that is, India and Pakistan in this case. In order to approach the ICJ without consent, the jurisdiction of ICJ needs to be explicitly mentioned as conferred by the treaty under question. The list of treaties that confer jurisdiction on the ICJ does not include the one infringed in this case and hence in that sense, even the hands of the Govt are tied. It needs to be seen and examined whether the SC would be able to resolve this subject and provide guidance to the Govt by way of judicial intervention or interpretation of an international statute resulting in providing leverage of approaching the ICJ.

That said, even in case of a direct legal impediment, it was incumbent upon the Govt to at least try resolving the issue or ironing out the creases or finding a way of assuaging a father’s quest. After all, our MEA is fully competent to find a via-media in such intricate issues. The Govt could have also tried to seek consent of the Pakistan Govt for approaching ICJ but I doubt if such steps were taken. It is unfortunate that a father is being made to seek judicial intervention in a matter which should have been sensitively handled by the Govt’s own experts on the subject operating in this domain. And as stated above, how far the SC would be able to intervene also remains to be seen in view of the inherent impediment in the statute governing jurisdiction of the ICJ.

The ball is, and also logically should firmly be, in the Govt’s court and it would be nothing but plain legitimate expectation for us to hope that the Govt takes it up in the right earnest or makes a statement in the SC when the case comes up for hearing that it shall take up the issue before the right forum forcefully and try its best to take it to its logical conclusion thus providing the much required balm to the family which has suffered for the last 13 years.

The barbarism is not to be forgotten and could have also been compounded by the fact that the players involved were that of the Northern Light Infantry, then an irregular paramilitary force, in composition almost a militia comprising tribals, and not troops of the Regular Pak Army.

That aside, the respect that is due towards soldiers of even the other side, and the human element after death in war, can be gauged in this rare video which shows the respect and salutations awarded to the enemy after death while handing over bodies to representatives of the other Army.

Let us all hope that no parent is made to suffer this ignominy ever again in any Army

Agree with AK or not, system in shambles!

I do not personally agree with the manner adopted by Kejriwal in parading a former commando in front of TV cameras with his woes. I may not agree, but others may, and that is just my own humble opinion.

However, if the allegation of delay in release of pension for 14 months after invalidation is true, then it is unforgivable. If the delay was actually there then it should have been admitted by the system rather than putting out a morbid PIB press release which confuses the issue for the public at large to consume. It is yet another matter that though the official press release talks a lot about the enormous benefits released, it does not state as to whether there was a delay in the grant of pension or not or the date of release of the person from service and the date when the pension was released.

It has been oft repeated that delay in release of pension, especially for disability pensioners, is due to the internal procedures involved and regularly happens in many cases. But is this correct? Or are there guidelines governing the issue?.

What the PIB press release and the official establishment do not want to come to light is the provisions of Paragraph 19 of Appendix C of Integrated HQ of Ministry of Defence (Army) Letter No B/40122/MA(P)/AG/PS-5 dated 20 July 2006 which clearly provides that the Release/Invaliding Medical Board (RMB/IMB) is supposed to be conducted 8 months prior to release and the approval is to be granted within 1 month of the RMB/IMB and then adjudication is to take place within 3 months of RMB/IMB and sent to the office of Principal Controller of Defence Accounts (Pensions) who is then supposed to issue a Pension Payment Order (PPO) within 1 month of the receipt of the claim. Hence in normal circumstances, the PPO for disability / war injury pension is to be issued 3 months prior to discharge/invalidation. The delay, if any, can only happen in cases involving rejection of claims of attributability resulting in a fresh medical board and in that case too, in accordance with the period prescribed, the PPO is to be issued about 15 days prior to release from service.

Keeping in view the above mentioned procedure already codified as an SOP, any delay is unacceptable, especially in the case of the NSG commando, and neither it should be defended nor condoned. The correct way out for the Govt or the Army was to fix responsibility as to who were the persons involved in the delay. People sitting in bureaucratic chairs do not realize and cannot fathom that being out of service how these disability pensioners would survive or feed their families till the time pension is released, how would they receive medical care since many would not know that ECHS Medical Cards are not issued to disability pensioners till the time the disability pension PPO is issued.

The delay is nothing new. Thousands of claims are languishing with the Personnel Services Directorate and the Pension wing of the MoD for resolution and adjudication. Appeals are also delayed inordinately resulting in perpetuation of sufferings of the disabled. A live case handled by me just a few days ago was of an invalided Captain who was released in the year 2000 but has received his Pension Payment Order (PPO) for his complete service benefits now, in November 2012. And that too, not with the help of the system, but through the help of a mere RTI Application. It is yet another matter that the Supreme Court has laid down that pension should be released forthwith on the date of retirement and that any delay in release of pension should be penalized with interest at market rates.

We’ve been saying this on this blog since long and all of us have been playing our small little roles but there is much to do.

To put it succinctly, the Govt should not just unnecessarily rebut what is now coming out in public light, it should resolve these issues rather than retorting with mindless egoistic press releases.  

Forces Law Gazette : Issue No 3 (December 2012) now available on www.lawgazette.net

The third issue of the FORCES LAW GAZETTE has been published and is now available for free download on www.lawgazette.net

The download link is on a verified host and is virus-free.

Due to paucity of time, the frequency of the gazette has been changed from quarterly to half-yearly.

The FLG is a non-commercial newsletter and covers law and allied issues related to uniformed forces of India and other democracies. The December issue covers legal and other allied subjects till date.

Contributions in the forms of articles and write-ups are welcome and can be emailed to me.

The latest issue can also be downloaded directly by clicking here without visiting the FLG website.

Guest Post: BeeCee’s views on post retirement occupation, legal redressal and status+protocol issues

Our regular guest writer, BeeCee is back, and would like to share his views on post retirement jobs, veterans & serving personnel approaching judicial fora for relief and status issues. His earlier posts, and references to those posts, can be accessed by clicking here.

The views are his own. I would particularly invite the attention of readers, specially serving personnel, to his observations made in this post on status incongruities. 

Enjoy.

XXX

Navdeep's recent posts on Status issues and Rank pay, as well as some other mails on the net regarding post-retirement employment must give us pause to see the inter-connectedness of many of these issues. Also at play is the proposal to further restrict employment of ex-servicemen.

Post-retirement Jobs

As correctly brought out in a mail among some veterans, further restrictions on post-retirement occupation is another self-goal in the making by the Services HQ. 

To be fair, we are not alone in this. A former British General was describing to me the other day an  expose/sting op done by a UK Paper on senior retired military officers and their links to the defence procurement process in the UK. But the problem may actually be in the rules than in the personnel. The points I want to raise are threefold:

1. Does the GOI actually have the right to decide what work you'll do or not do when you retire? In particular, to proscribe you from doing the job you are most competent to do? One veteran had also raised this issue more directly sometime back and suggested that the GOI must compensate the affected parties adequately if they apply such restrictions on employment.

2. Is there any other sector where the only people with domain knowledge are banned from working in the particular sector? Say, like 'if you have banking experience, you cannot work in the financial services industry' or if you have IT experience, you cannot work in the computer industry etc. What amazes me is that those who suggest these measures seem to be completely oblivious to the inherent self-contradiction in such blanket bans. The Service HQ must actually be actively involved in encouraging veterans to join the defence industry so that their knowledge and experience can be beneficial to both the vendor and the customer, and of course the country in general.

(Post Note on Points 1 & 2 : Yes, service rules prescribe prohibition on commercial employment for civilian as well as defence employees according to rank, however the said stipulations are peppered with many ifs and buts, and, as they stand now, are not blanket or draconian in nature –   Navdeep.)

3. Isn't it also surprising that the same people who advocate greater removal of controls and regulation for better efficiency in the marketplace advocate the opposite for Defence industry. It does not stand to reason that openness and transparency that is beneficial everywhere else would be counterproductive only in the defense sector.

My own view is that discouraging Service personnel from embracing this is a deliberate ploy by those already in it or their cohorts, to minimise competition and scrutiny by others with product knowledge. Corruption is a red herring. Of course there may be corruption, as in any human activity and must be dealt with ruthlessly. But the solution to a headache is not to cut off the head. I haven't heard anyone say that people who understand telecom or coal must be banned from those sectors because of corruption there.

The surprise is that Service HQ (and many veterans) don't see through this. Or is it a case of turning the Nelson's eye? You can then have shadowy operators (veteran or otherwise) coming out of the woodwork without scrutiny. It is also a way of creating continued dependency of veterans on govt handouts whether it be in the form of public/political appointments, Track II sojourns etc instead of letting personnel strike out on their own and make a living based on their personal competence.

Instead of parroting such views, Services HQ/Veterans need to look at the constitutional validity of such instructions. I suspect what may be required is merely a full disclosure from the veteran regarding his military background. In case of any conflict of interest, his competitor (likely another veteran) is sure to bring it out easing out the job of the procurement agency and delivering better service.

General VK Singh in the spotlight

Fortunately, a fair amount of sensible comment is coming in the media, especially if the last rank in service was relatively junior. Let me add some points to ponder.

Maj Dhanapalan's going to court to claim what was legitimately due to him has been hailed by all of us because the court upheld his claim, and especially because the RDOA effectively made it into a class action with many benefitting. 

When Gen VKS went to court to claim what was legitimately his due (at least I feel that way), many frowned and even became shrill when the court also took evasive action. Technically or legally, I think the General's claim was as valid as Maj Dhanapalan's.

But the point that needs to be made is that irrespective of personal opinions, both cases were caused by action/inaction at Service HQ, all three HQ in the former, and Army HQ in the latter. Has anyone been called to account for this? This, I think remains a fundamental failing.

When you compare DPA/NHQ's(reported) brief with that of RDOA on the Rank Pay case, one realises that nothing much has changed and Service HQ still haven't got their head out of the sand. The scales indicated in the letters in circulation are actually a bit lower than what would have been automatically available if we had just accepted civil norms to begin with. 

Status issues

Which brings me to the third issue highlighted by Navdeep on his blog and various comments thereon regarding status.

Again, here the primary culprit is Services HQ in the past because status is related to pay. This is what happens if you have a bunch of decision makers who feel that 'Service officers have/had an edge over others in pay', then further create an ambiguity in basic pay through integrated scale/Rank Pay and then add to it some officers who want to hang around in Delhi in whatever position is available.

NHQ had caught on to this sham in the mid 90s when the Cabinet Secretariat had asked for "Commanders (psc) on deputation to work as Under Secys in ......”. Navy wrote back to Cabinet Secretariat to make up their mind on whether they wanted Commanders or Under Secys to Govt of India. If it was the former, then they would have to be designated as Directors and if it was the latter, Navy will send Lieutenants. After some back and forth and a meeting between COP and the Secy, a meeting was convened to iron out an agreement between NHQ and Cabinet Secretariat. 

The interesting aspect is that none of the civilians on the other side of the table had a problem with a pay based equation (which was finally agreed to) as suggested by the Navy and is the norm elsewhere. Vociferous objection was from the senior military officer in the Cabinet Secretariat, a Maj Gen. The substance of his argument was that rank for rank military officers were paid higher and that it is only NHQ that had a problem while Army and Air HQ were willing to send even Cols/Gp Capts to Under Secy level posts. NHQ did win the argument there at the time but the latter part of his stand was also true. This and the exchange of words between the Maj Gen and a relatively junior naval rep provided much amusement to the civilians present during discussions.

Unfortunately, he was not alone in that line of thinking. At Delhi, it was common to see Majors and Dy Secys Govt of India/Directors staying in the same block of DII accommodation. This was because they had similar levels of pay and service and you didn't have to be a genius to realise that these grades were at par. However most Service officers of the rank of Major  had convinced themselves that they were junior, but were paid higher with better accommodation entitlements. A classic case Groupthink, at variance from reality.

On the comments of some bloggers that individual officers must refuse to take up lower level deputation posts, my view is that it could be done, but it will only have marginal impact. Addressing systemic faults is the responsibility of Services HQ and they need to ensure that no individual is put in a position to make such difficult choices. 

  

For whatever it's worth

BeeCee

Welcome step by the Army: Official website finally put to use for welfare of veterans (OFFICIAL NOTICE- Rank Pay Judgement)

Leaving bland sarkari attitude behind, the official establishment has finally made use of the potency of internet.

In order to ensure smooth implementation of the rank pay judgement rendered by the Supreme Court, the official Indian Army Website has placed online the names of all affected officers so as to enable them to check their particulars.

The notice placed on the official Army website with the said list, can be accessed by clicking here.

The link also contains the procedure for correction in case the particulars are found to be incorrect, or not found at all.

Officers who are not tech savvy or unable to handle MS Excel may kindly contact Maj Gen K Khorana at kkrishen [at] hotmail.com. The General has most kindly agreed to provide assistance to those requiring it. 

The use of social media and the power of internet was discussed on this blog earlier in February 2012 and that post can be accessed here. 

‘Ex-Central Police Personnel’ status to former personnel of the Central Armed Police Forces : Need to support the concept and not feel bitter about it!

Truly speaking, repulsive are the emails circulated by retired veterans condemning the grant of the newly conceptualised status of ‘Ex-Central Police Personnel’ to former personnel of the Central Armed Police Forces (CAPFs) akin to the model of the status of ‘Ex-Servicemen’ to former defence personnel.

Only because the Government has been insensitive to certain issues concerning defence veterans does not mean that we go around ranting about benefits being granted to others. Some veterans have even pointed out that such personnel would ‘eat away’ the vacancies of ex-servicemen who retire at a much younger age. But is this fear well founded? Not at all. The simple answer is that firstly there is no proposal to treat such personnel as ‘Ex-Servicemen’ or to place them at par with defence veterans – they would be treated as a separate category, and secondly, even otherwise since such personnel retire well in their 50s there is no question of any clash with defence personnel retiring in their 30s and 40s. Moreover the benefits which are to be granted by the States cannot be dictated by the Central Government and would be decided by States independently. It is also very important to note that many States already provide multifarious benefits to personnel and ex-personnel of CAPFs. Even the Centre is providing many similar benefits and facilities and those shall be merely formalised by the introduction of the new concept.

It is universally known that personnel of the CAPFs operate in trying conditions and very difficult and risky circumstances with disturbed family life. Yes, there are certain allowances in the arena of which they are better placed than defence personnel but the quality of life needs much improvement. In this light, if the Ministry of Home Affairs is doing its bit in improving upon the conditions of service of CAPFs, then what is required is whole hearted support from the defence community and not the opposite. It’s painful to observe the disparaging comments on the efforts of the MHA in improving upon the state of affairs in the CAPFs.

This brings me to another point. Though in many issues the efforts of the Government have been wanting in the welfare of defence veterans, the public at large mostly has been sensitive to the requirements of men and women in uniform. Even civilian pensioners and pensioners’ organisations have been generally supportive of additional benefits to defence pensioners, though they may have demanded parity with defence pensioners in certain aspects. There has never been any significant opposition from civilian pensioners on the applicability of a (better) varied formula for Other Ranks and JCOs to cater for their early release from service or curtailed tenures. And hence that very minimal courtesy is expected from the defence community too towards others. Even today, a group of civilian pensioners by way of a circulated mail has congratulated defence pensioners on the rank pay case. Always projecting defence personnel as being different and special and removed from the general society can be hugely counterproductive. The issue was also briefly touched by me in an OPed published in ‘The Tribune’ earlier this year.

Veterans should ask for what is logically due to them, but not by running down other institutions and not by seeking to withdraw benefits granted to personnel in other services. A little more magnanimity is required and I’m sure we can rise to the occasion.

On a lighter note, the situation reminds me of this phrase, those who can read Punjabi would get it !

:)