My op-ed for the 'Deccan Chronicle' and 'The Asian Age' on Capt Kalia's case and institutional malaise

Unabridged version of my op-ed that has been published in the Deccan Chronicle and The Asian Age today (07 June 2015):

Captain Kalia, pain, agony and an institutional malaise

Navdeep Singh

Seldom have I picked up a pen to write an opinion with a hazy mind. Hazy not because I am unclear about the issue at hand, but because I feel I have no solutions to recommend, and those who were tasked and legitimately expected to find an answer many moons ago, have washed off that responsibility and thrown the ball, literally, in the court of Courts.

Late Capt Saurabh Kalia’s case, the casualness shown thereon and the quandary, nay inertia, over invocation of the jurisdiction of the International Court of Justice (ICJ), paradoxically, emanated from a different matter, and that was a Public Interest Litigation filed by the Late Lieutenant General Jagjit Singh Aurora in 1999 before the Gujarat High Court seeking a declaration that 54 Prisoners of War believed to be in Pakistani jails may not be treated as “presumed dead” but “on duty” for all purposes till the notional date of retirement and their kin accordingly be released all benefits of such declaration and that the Government take the issue to international fora for justice.

Accepting his plea in 2011, the Gujarat High Court, in a 57 page decision, recording chilling details of the travails of such Prisoners of War held in Pakistani detention which could bring a tear to the toughest eye, directed the Government to grant all service and retirement benefits by treating such Prisoners of War as alive, and more importantly, in Paragraph 27(a) directed the Government of India to approach the ICJ on the issue of non-release of our Prisoners of War.

It was similar relief that the father of Capt Saurabh Kalia had sought from our Government, and having failed so, also approached the Supreme Court for respite.

However, what most are not aware of is, that during the currency of the last regime, on 02^nd May 2012 to be precise, rather than taking steps towards implementing the judgement, the Government of India appealed against the decision of the High Court before the Supreme Court and also obtained a stay on the directions on approaching the ICJ.

The stand of the Government was hence clear on the subject, whether it is our Prisoners of War or the ghastly incident of Capt Kalia’s torture- the ICJ could not be approached since its jurisdiction is consent-based and both parties to the dispute need to permit the lis being adjudicated by the said Court. There is some truth in such a claim and agreeable is the suggestion that the hands of Government are somewhat tied, but the question arises whether it was prudent for the Government to oppose such a claim in the Supreme Court or file an appeal in General Aurora’s case? The answer is absolutely in the negative.

By opposing genuine and legitimate claims of the families of soldiers who have suffered the horrors of war, the Government does not send the right signals to the nation at large. In fact, it is also not entirely accurate that the Government cannot approach the ICJ without the consent of Pakistan. There was a way out. Rather than opposing the plea in the Supreme Court, the Government of the day could have invoked the jurisdiction of the ICJ under the unilateral application clause without the consent of Pakistan within the meaning of Paragraph 5 of Article 38 of the Rules of the ICJ (Forum Prorogatum) under which the ICJ would have transferred the petition to Pakistan for its response to the same. There are only two instances where such an approach has finally succeeded but at least the bona fides of the Government of India would have been clearly enunciated thereby bringing the horrendous war crime into sharp global focus, even if it had hypothetically resulted in a rejection at the ICJ ultimately. The saving grace though is the pleasant news that India’s current no-nonsense Minster of External Affairs has decided to render a relook at the entire issue.

Which brings me back to a very pertinent question, and that is, whether the issues related to the dignity and welfare of martyrs, their families, military veterans, military widows and even serving soldiers should shuttle between protests, distrust, disdain and from pillar to post to Court, or should the Government itself be sensitive enough and ensure that the disquiet is relieved through a temporal unguent?

The last few years have not only seen families of martyrs up in arms but also the Government, especially the Ministry of Defence, taking a stand contrary to the genuine claims of the military community including disabled and war disabled soldiers by filing thousands of appeals right up till the Supreme Court against, at times, just a few hundred rupees of benefits granted to them by Courts and Tribunals. The Government also placed a plea before the Supreme Court, and got a favourable verdict, that poor soldiers, veterans and widows aggrieved by the decisions of the Armed Forces Tribunal (AFT) would not be able to challenge the same before the High Courts, thereby snatching away their fundamental rights which are otherwise guaranteed to every citizen of the Country. The only way to question AFT verdicts now is to approach the Supreme Court directly but the same is permitted under law only if the case involves a “point of law of general public importance” and which approach anyway is unaffordable and inaccessible for the petty amounts and issues that most of such litigation involves.

Though the current Government has tried to improve the interface with the military community, things are not moving as swiftly as expected since the perilous hold of the lower bureaucracy in the Central Secretariat remains the same, and then, as we know, while political executive is variable, the babudom is a constant. If the Government is serious about assuaging sentiments, then it should no longer be business as usual.

I shall now fall back upon my disclaimer. There is not a solution I can recommend in Capt Kalia’s case, but unfortunately neither can the Court. It is the Government’s bounden duty to protect the interests of those who protect our borders. It is the system’s responsibility to find a way out of the logjam and to iron out the creases. As citizens, we expect the Government not only to raise the issue internationally and robustly with Pakistan, but also the highest of the political executive to personally reach out to Capt Kalia’s family and others affected by such horrors and to alleviate their hurt.

Per Thomas Carlyle, “endurance is patience concentrated”, but then, let us not stretch it to the extent of causing a rupture in our national pride we so very cherish.

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Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and the Armed Forces Tribunal. He is a Member of the International Society for Military Law and the Law of War at Brussels.

He is also the author of “Maimed by the System”, a collection of real life accounts of military veterans and their families who fought to claim their rights.