Cloaked daggers and writ petition in Supreme Court (April 20, 2012)

http://bharatkalyan97.blogspot.in/2012/04/cloaked-daggers-and-writ-petition-in.html

Frontline
Volume 29 – Issue 08 :: Apr. 21-May. 04, 2012
INDIA’S NATIONAL MAGAZINE
from the publishers of THE HINDU

Cloaked daggers

PRAFUL BIDWAI 

The intrigue and disinformation campaign against the Army Chief, General V.K. Singh, is discrediting the institution itself.

S. SUBRAMANIUM

General V.K. Singh, Chief of the Army Staff.

SO it now turns out, as many had suspected, that The Indian Express story alleging that there was unusual and un-notified movement on January 16 of two Army attack formations towards the national capital, which “spooked New Delhi”, was a complete fabrication. The barely hidden suggestion in the story was that the troop movement ominously took place the night before the Chief of the Army Staff General V.K. Singh moved the Supreme Court on the date of birth issue; it was a not-too-subtle way of the Army flexing its muscle against civilian authority.

The troop movement violated no protocol of standard operating procedure. Such movements need to be notified to the Defence Ministry only if they involve corps-level strength. The story appears to be wrong on other details too, and has been dismissed by Prime Minister Manmohan Singh, Defence Minister A.K. Antony, and General V.K. Singh.

However, the real question is who fed or planted the story, and with what motive. One may never know for certain the answer to the first question, but the plausible motive seems to have been to discredit Gen. V.K. Singh. One of his detractors, former Northern Army Commander Lt Gen. H.S. Panag, said that the troop movement was an attempt by a “compromised [military] hierarchy” to “pre-empt” a likely decision by the Defence Ministry to sack the COAS. Lt Gen. Panag was relieved of his command after an anti-corruption inquiry in 2008, and has since retired. But he is a member of the Armed Forces Tribunal. Thus, it was totally out of order for him to make these remarks. A similar story was planted earlier about Gen. V.K. Singh having ordered the clandestine interception of telephone conversations involving top Defence Ministry officials. This pointed to grave indiscipline. But the charge was never substantiated.

Even more important, the “controversy” about his year of birth (1951 or 1950) was raked up without any reference to the record pertinent to his promotion, first as Lt General and later as a full General. The sole basis for regarding the date as 1950, which would entail the end of his tenure this year, was another document concerning his application to the National Defence Academy. A confidential letter from the COAS to Manmohan Singh, pointing out serious deficiencies in the Army’s war preparedness, was also mysteriously leaked.

Clearly, a great deal of intrigue and disinformation has been at play in an institution, which is supposed to follow exemplary standards of truthfulness, discipline and integrity. A possible clue to its source is provided in a writ petition moved before the Supreme Court by former Chief of the Naval Staff Admiral L. Ramdas, former Chief Election Commissioner N. Gopalaswami and three ex-generals, among others.

This reportedly alleges that a process or line of succession was launched by former COAS Gen. J.J. Singh by initiating something new called “the look-down policy”, which was calculated to favour certain officers and have them promoted above the rank of Brigadier. As a result, many likely contenders to Army commanders’ positions were “eliminated” to ensure that Gen. V.K. Singh would remain COAS only until May 2012 and that Lt Gen. Bikram Singh, currently the Eastern Army Commander, would succeed him.

The petition also alleges that there was a “communal conspiracy” behind the rejection of Gen. V.K. Singh’s claim for a revision in his date of birth, in particular, lobbying by Sikh organisations, and support from certain high government officials. Even if this allegation is discounted, the petition, which prima facie appears broadly truthful, raises disturbing questions about the process through which high-level Army promotions and seniority lists are determined.

On March 3, Lt Gen. Bikram Singh was designated as the next COAS – three months in advance, instead of the usual two months. But Lt Gen. Bikram Singh has two court cases pending against him: the first involving a fake “encounter” killing in Jammu and Kashmir in 2001, and the second concerning Indian troops’ misconduct, including rape, during a United Nations peacekeeping mission in Congo under his charge in 2008. Surely, both propriety and convention demand that he should not have been designated the next COAS until he is cleared of these cases.

The Defence Ministry has also just cleared the names of Lt Gen. Dalbir Suhag, head of Dimapur-based 3 Corps, and Lt Gen. Sanjiv Chachra, Military Secretary, for promotion as army commanders. Lt Gen. Suhag was recently at the centre of a controversy triggered by the forwarding to the Central Bureau of Investigation (CBI) of a complaint about his role in the purchase of parachutes as the head of the Special Frontier Force.

The CBI refused to investigate the complaint, made by Trinamool Congress MP Ambica Banerjee, on the ground that Lt Gen. Suhag had been cleared by another government agency. As for Lt Gen. Chachra, his appointment as Military Secretary, in charge of transfers and postings, was reportedly opposed in the past by the Defence Ministry.

Evidently, there is very little coordination, accord or harmony between the armed forces and the civilian leadership, which is supposed to exercise supremacy over the armed forces in a democracy. Indeed, their relations are extremely strained, and marked by suspicion, distrust and a crisis of confidence. This does not generally bode well for the nation’s defence.

Particularly worrisome is the recent trend of personnel of the armed forces pronouncing themselves on policy matters, or speaking at cross purposes with the government on issues such as a resolution of the Siachen glacier dispute with Pakistan, which has festered since 1984, and repealing or suspending the Armed Forces (Special Powers) Act (AFSPA) in Jammu and Kashmir. Siachen, the world’s highest-altitude military conflict, has taken a huge toll on the Army, including the loss of an estimated 2,000 lives mainly thanks to frostbite, while driving thousands of soldiers into acute psychological disorders, and inflicting a daily expense of Rs.3 crore to Rs. 5 crore. India and Pakistan came close to resolving the dispute by agreeing to withdraw their troops from the glacier at least three times, in 1989, 2006 and 2011.

This was vetoed by the Army – although occupying the icy heights confers no obvious strategic advantage. In 2006, Gen. J.J. Singh publicly ruled out his Army’s withdrawal until its positions on the glacier are marked and recorded. As former United States Ambassador David Mulford put it in a cable disclosed by WikiLeaks, “Army Chief J.J. Singh appears on the front page of the Indian Express seemingly fortnightly to tell readers the Army cannot support a withdrawal from Siachen. Given India’s high degree of civilian control over the armed forces, it is improbable that Gen. Singh could repeatedly make such statements without MoD civilians giving at least tacit approval.”

In a democracy, it is illegitimate for the armed forces to defy civilian authority in this manner. Similarly, in the recent debate over the AFSPA, whose withdrawal is demanded by the Jammu and Kashmir government – not least because of a dramatic reduction in cross-border infiltration amidst declining militancy – several Army commanders lobbied against the move and even threatened to stop counter-insurgency operations if the “indispensable” Act is lifted. It is the same story in Manipur.

The AFSPA is a draconian law unworthy of a civilised society. It grants impunity to an officer who kills civilians on the mere suspicion that they may be about to commit a violent act or even violate prohibitory orders which are imposed at the drop of a hat. To top it all, the government is taking refuge behind the AFSPA in refusing to sanction the prosecution of military personnel found by the police to have committed murder, culpable homicide or rape.

In Jammu and Kashmir alone, the Home Ministry refused such sanction in 42 cases in recent months, provoking the Supreme Court to remark: “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction?” Among the cases is the Pathribal killing of five innocent civilians in March 2000, on the palpably false ground that they were Lashkar-e-Taiba militants responsible for the massacre of 36 Sikhs at Chittisinghpura.

Army units have been recently implicated in a number of fake “encounters” such as the cold-blooded execution of villagers at Ganderbal in 2007, and at Macchel in 2010. More details of excessive use of force and torture by them are available at the Asian Centre for Human Rights website: http://www.achrweb.org/ihrrq/ issue1/indian_army.html.

Corruption scandals in the Army have involved numerous arms deals, from Bofors and HDW submarines in the 1980s to the more recent Tatra trucks case, and the Sukna land scam and the Adarsh Housing Society scandal. The biggest cases are related to India’s growing participation in the super-corrupt global arms bazaar since the Kargil conflict (1999), which has made it the world’s biggest arms importer in 2007-11. More corruption can be expected as India spends an estimated $80 billion on armaments acquisition over the next five years.

While there is no direct link between corruption and the armed forces’ defiance of civilian authority or outright lawlessness and “encounter” killings, a culture of impunity is common to all. Despite his faults and mistakes, Gen. V.K. Singh deserves support for opposing this and fighting corruption.

http://www.frontlineonnet.com/stories/20120504290809700.htm

 

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (C) NO._______ OF 2012

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

1.     Admiral (Retd.) Laxminarayan
        Ramdas

S/o. Late C K Laxminarayan

        Lara-Ramu Farm
        Alibag,
Maharashtra- 402209
2.     M.G. Devasahayam
        R/o 103, Ceebros Bayview,
4th Seaward Raod,
Valmikinagar,
Tiruvanmiyur,
        Chennai – 600041
3.     Maj. Gen. A.K. Verma
        R/o 1322, Arun Vihar
        Sector – 37,
        Noida, U.P.

 

4.     N. Gopalaswami

Former CEC,

Flat No. 5, Leo Madhuram,

39, Giri Road

T. Nagar,

CHENNAI – 600017

 

5.     Lt. Gen. (Retd.)  Onkar Singh Lohchab

S/o Shri C.R, Lohachab

R/o G-159, Palam Vihar,

Gurgaon,

Haryana

 

6.     Lt. Gen. P.C. Katoch (Retd.)

R/o 404-B,

Hamiltion Court,

DLF Phase 4,

DLF City,

Gurgaon – 122009,

Haryana

 

7.     Sam Rajappa

S/o Late Shri M.B. Samuel

R/o 23, Coconut Groove

Jansi Nagar,

12, Street, Velachery

Chennai – 600042

 

                               …Petitioners

 

VERSUS

Union of India

Through its Ministry of Defence

South Block,

New Delhi-110011                           …Respondent

 

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, IN THE PUBLIC INTEREST, BY RETIRED SERVICE OFFICERS, CIVIL SERVANTS, AND CONCERNED CITIZENS; SEEKING TO QUASH THE RECOMMENDATION MADE BY THE APPOINTMENT COMMITTEE CONSTITUTED UNDER THE GOVERNMENT OF INDIA (ALLOCATION OF BUSINESS) RULES, 1961, RECOMMENDING SINCE THE SAME IS VIOLATIVE OF FUNDAMENTAL RIGHTS GUARANTEED UNDER ARTICLE 14, 15 & 16 OF THE CONSTITUTION OF INDIA, 1950.

 

To,

The Hon’ble Chief Justice of India

and his Companion Justices of  the

Supreme Court of India

New Delhi.

 

The Humble petition of the Petitioner above named:

 

MOST RESPECTFULLY SHOWETH

1.     The Present Writ Petition Under Article 32 of the Constitution of India, in the Public Interest, by retired Service Officers, Civil Servants, and Concerned Citizens; is being filed under the prevailing extraordinary circumstances is seeking quashing of the Recommendation made by the Appointment Committee constituted under the Government of India (Allocation of Business) Rules, 1961, for the Appointment of Lt. Gen. Bikram Singh as next Chief of Army Staff. This has been done primarily to protect the Institutional integrity of the Indian Armed Forces which has today become an unfortunate victim of blatant manipulation by people in power without any care or concern to the irreparable severe damage to the important and highly regarded institution which has always been known for its discipline. These vested interests  have taken it upon themselves to impose so called “Line of Succession” in the Indian Army regardless of what the established Law of the Land lays down.

 

1A.   The Petitioner No. 1, Admiral (Retd.) Laxminarayan Ramdas, Commissioned in the Indian Navy on September 1, 1953, served as Chief of Naval Staff of the Indian navy taking from November 30, 1990 to 23, September, 1993. He has been awarded during his tenure in Indian Navy, Vir Chakra, Param Vishisht Seva Medal, Ati Vishisht Seva Medal and the Vishisht Seva Medal. Post retirement, he was awarded the Ramon Magsaysay Awards for peace in 2004 for his efforts in trying to demilitarise and denuclearize South Asia.

 

He is trained as a communication specialist in the Royal Naval Staff College in the United Kingdom, he then went on to establish and head the Naval Academy in Kochi, Kerala. One of his major accomplishments is the reconnaissance and interdiction of enemy vessels and bombing of East Pakistan during the 1971 Indo-Pakistan war.

 

During 1971 Operations while in command of INS Beas Admiral Ramdas took part in the most effective Naval Blockade of East Pakistan which frustrated the Pakistans attempt to evacuate 91,000 of their troops who eventually surrendered to the Indian Forces, and captured a large number of ships carrying contraband to that country, bombarded Cox Bazar and took part in the landing and other operations in an area infested with enemy mines and under-water threats. For his resolute, bold, gallant and imaginative action in the face of great danger Admiral Ramdas was decorated with the Vir Chakra, he latter commanded one of the most modern Patrol Vessel Squadron of the Indian Navy.

 

He served as Naval Attache in Germany for 3 years. He held the appointments of Director of Personnel, Director of Naval Signals and Director of Naval Operations at the Naval Headquarters. Other notable appointments he held were Assistant Chief of Naval Staff (Operations), Flag Officer Commanding Eastern Fleet, Controller of Warship Production and Acquisition, Deputy Chief of Naval Staff and Flag Officer Commanding-in-Chief Southern Naval Command.

 

Prior to his Taking over as Chief of the Naval Staff in November 1990, he was the Flag Officer Commanding-in-Chief, Eastern Naval Command which appointment he held since Feb 1989. A distinguished sportsman, an enthusiast of sailing and adventure activities, he promoted sports and adventure activities in the Navy to a great extent.

Petitioner No. 2, M.G. Devasahayam, is a soldier cum administrator with a long career spanning over 45 years, with experience in the working and ethos of Indian Army, Indian Administrative Service, Government and Non-Government Organisations. He entered Indian Army as a Commissioned Officer (Infantry, The Madras Regiment) in 1964. During Army service he participated in the Indo-Pak War (1965) and counter-insurgency operations in Nagaland (1967-68). He is the recipient of Samar Seva Star and General Service (Nagaland) medals.

 

Moving to Government service (IAS-Haryana Cadre) in 1968, he has been the head of two important Districts (Bhiwani and Chandigarh) and distinguished himself in the areas of Social Welfare, Urban Development and Public Utilities-Electricity and Transportation-Management. While at Chandigarh he worked closely with Mother Teresa and was instrumental in the setting up of the ‘Home for orphans, abandoned infants, dying destitutes and mentally retarded’ [Shanti-Dan] at the heart of Chandigarh and a sancturary for lepers at the City’s outskirts. He was also closely associated with Lok Nayak Jayaprakash Narayan.

 

Mr. Devasahayam is a prolific writer with published articles in many Newspapers, magazines and journals and has authored three Books – ‘India’s Second Freedom-An Untold Saga’; ‘JP in Jail-an uncensored account’ and ‘JP Movement, Emergency and India’s Second Freedom’

 

Presently he is Member of National Working Committee of Gandhian Seva & Satyagraha Brigade, New Delhi devoted to the cause of combating corruption. He is convener of the Chennai based Forum for Electoral Integrity and Forum for Integrity in Governance. He firmly believes that Institutional Integrity is at the core of honest governance, vibrant democracy and national security.

Petitioner No. 3, Major General (Retd) Ashok Kalyan Verma, AVSM, was commissioned into the RAJPUT Regiment in June 1956. He commanded the 18th Battalion during the 1971 War and was ‘Mentioned-in-Despatches’ for his role in the Battle of Akhaura. Subsequently, he commanded a Brigade in Ladakh and the prestigious 26 Infantry Division in Jammu & Kashmir. Among his various appointments he was staff officer in the Military Wing of the Cabinet Secretariat and Brigadier-in-charge Administration in Jalandhar during 1984-5. He was later DGOL in AHQ, Delhi and was an integral part of the ‘Experts Committee’ that was constituted for the reorganization of the Indian Army.

 

Besides having been on the teaching faculty of the Defence Services Staff College, he has also been the commander of the Higher Command Course at the College of Combat, Mhow and also Senior Directing Staff at the National Defence College, New Delhi. He was the Colonel of the Rajput Regiment from 1986 until his retirement in 1991.

 

He is the author of three books – Rivers of Silence (Lancer 1998), Kargil: Blood on the Snow (Manohar 2002) and The Bridge on the River Mehgna (Knowledge World/Centre for Land Warfare Studies 2009).

Petitioner No. 4, N.Gopalaswami, is a former IAS Officer and Chief Election Commissioner of India (CEC). He has administrative experience in a career spanning 43 years both in the State and in the Central Government.

 

He joined Service in 1966 after a brilliant academic career culminating in his securing a Gold medal in Chemistry in the Post Graduate course at the Delhi University in 1965. He served in the State of Gujarat for 25 years from 1967 to 1992 distinguishing himself in the area of Urban Development and Planning, Land Tenures and Land Administration, Education, Police Administration and Management of Electronic Industry. He moved to the Central Government in 1992 and was involved closely in Electronic and Software Industries’ Promotion,  and in the field of Education & Culture. He served as Secretary General in the National Human Rights Commission under  2 eminent former Chief Justices of India, Justice M.N.Venkatachaliah and Justice J.S.Verma, implementing the policies of the NHRC in regard to Right to Life, Right to Health etc. He also served as Union Home Secretary before moving to the Election Commission. He was  an Election Commissioner  for 2 years and Chief Election Commissioner for  3 years during which time he executed many new innovations including the Photo Electoral Rolls to curb bogus voting  and impersonation in the elections.

 

Post retirement, he is  associated with the Consumer Association of India and the Concert Trust both sister organisations based in Chennai, working in the area  of  consumer grievances, awareness and related issues. He is also Trustee in Catalyst Trust, involved in spreading awareness of  Citizen’s rights and duties especially in the area of Elections and Local Self-Governance. He is a member of a Chennai based Forum for Electoral Integrity and Forum for Integrity in Governance . He also contributes to propagation of Samskrit as a Vice President of The Samskrit Promotion Board headquartered at Delhi, with  Justice R.C.Lahoti as its   President. He firmly believes in the rule of law and that only  integrity and transparency in Governance based on respect for Human Rights  will secure a robust democracy for all.

 

Petitioner No. 5, Lt. Gen. (Retd.)  Omkar Singh Lohchab, was Commissioned into the Indian Army in 1963. He did his Staff College Course in Australia in 1977. He went on to Command 2 Bihar and also held instructional appointments at the Army College of Land Warfare in Mhow and the Defence Services Staff College in Wellington. He commanded 330 Infantry Brigade in the Desert and was the General Officer Commanding both 14 and 4 Divisions.

Among his other Appointments, he was GOC Bengal Area, Additional Director General Adm & Coord, AHQ Delhi and MGGS Eastern Command. He retired in 2003 after serving as the Director General Military Intelligence for three years. The General is an MsC in Defence studies. Post-retirement, he lives in Palam Vihar in Gurgaon.

 

Petitioner No. 6, Lt. Gen. P.C. Katoch (Retd.), PVSM, UYSM, AVSM, SC, Superannuated as Director General Information Systems of Indian Army in 2009. He has participated in the 1971 India-Pakistan War, commanded an independent para-commando company in Nagaland-Manipur, a Special Forces Battalion in Sri Lanka, a Brigade on Siachen Glacier, a Division in Ladakh and a Strike Corpus in South Western Theatre. He was part of the Indian Contingent participating in an international Sky Diving Competition in USSR in 1976. He has served as Defence Attache in Japan and Republic of Korea and has held numerous operational staff appointments. An MSc in Defence Studies, he is Alumni of the National Defence College. Post retirement, he has authored over 120 articles on military, security, topical and technical issues and is also online Senior Consulting Editor for SP Guide Publications. He is member of the USI of India Council and active Publications. He is member of the USI of India Council and active participant in seminars at national and international levels. He chaired an International Leadership Seminar at Maldvies (2009), participated in the fourth round of Afghanistan India-Pakistan Trialogue at Kabul (2010) and has presented papers on Counter Terrorism at US Pacific Command, Hawaii (2011), on Maritime Security challenges at China International Institute of Strategic Studies, Beijing (2011), on Political & Economic Frameworks in Asia Pacific during USI National Security Seminar (2011) and on regional Security Post Withdrawal of US & NATO Troops from Afghanistan during the Japan-US-India Trialogue (2011).

 

Petitioner No. 7, Sam Rajappa is a senior journalist with over five decades experience in the media. Sam started his career in journalism in 1960 as a sub-editor with the Free Press Journal in Bombay. In 1962 he joined The Statesman in New Delhi and later moved to Chennai. He was associated with the paper till 2008. In 1980, he took a year’s sabbatical from The Statesman to set up the South Indian network of India Today, and worked as their South India bureau chief based in Bangalore. Again, he took a short break from the paper in 1996 to launch The Andhra Pradesh Times, an English daily published from Hyderabad, as its founder-editor. For about fifteen years, since1980, Sam was also the BBC’s South India correspondent. He was an adjunct faculty member of the Chennai-based Asian College of Journalism from 2001 to 2007. Till recently he was Director of The Statesman Print Journalism School, Kolkata.

He is a prolific writer and has written editorials and articles on various subjects including politics, foreign policy, governance, armed forces and national security. He continues to contribute editorial columns to online media and The Statesman.

The Petitioners, some of whom, themselves have given their life to the Armed Forces and Civil Services and have served it to the best of their capability and integrity to uphold the dignity of institution, are deeply pained to see the manner the things are unfolding, which has also led many in the armed forces to believe that since Independence, their status has been systematically downgraded. While no one questions the supremacy of the elected political leadership, there is acute resentment about the civilian bureaucracy, therefore to protect the dignity and independence of the institution the Petitioners with full sense of responsibility and with seeing no other avenue with great hopes are approaching this Hon’ble Court.

 

2.     BRIEF FACTS:

The Brief facts leading to the filing of the present Writ Petition is as follows:

 

2.1. India is a Sovereign Democratic Republic as set out in Preamble to the Constitution of India, it further assures dignity to every individual and the unity and integrity of the Nation. TheConstitution of India was adopted, with the intention of having India as a Sovereign Country, which would ensure all the Citizens their individual dignity and the unity and Integrity of the Nation in which they live.

2.2.  The Indian Army is the land component of the Indian Armed Forces which works to uphold the said ideals of the Constitution of India. The Army Doctrine 2004 clearly lays down its roles- Primary: Preserve national interests and safeguard sovereignty, territorial integrity and unity of India against any external threat by deterrence or by waging war; Secondary: Assist government agencies in coping with “Proxy war” and other internal threats and provide aid to the Civil Authority when requisitioned for the purpose.

 

2.3.  Indian Army has a duty to protect the Country from any external aggression and internal turmoil which goes beyond the control of the law & order machinery. It is the most important rather paramount task to preserve the sovereignty, integrity, unity and security of the Nation.

 

2.4.  The Preamble has been held to be the Part of the Basic Structure of the Constitution of India, and thus the Sovereignty, unity and Integrity of the Nation forms the part of basic structure of the Constitution.

2.5.  The COAS has the responsibility and duty to command and control the Army in a manner so as to preserve the sovereignty, integrity, unity and security of the Nation in the pursuance of the object as enunciated in the Preamble of the Constitution of India and thus to uphold the dignity and honour of the Services.

 

2.6.  Critical roles have been played by the Indian Army in protecting and defending India’s democracy during the dark days of Emergency (26th June, 1975 – 21st March, 1977), which makes it clear that Army is not merely an Integrity Institution, but also the sentinel of the country’s freedom and democracy and the personal integrity of the Person to be appointed as the COAS is of utmost importance to uphold the Basic Structure of the Constitution.

 

2.7.  In the prickly backdrop of political paranoia over the role of the Army in the subcontinent, civil-military relations in India have evolved in their own unique way. Since Independence the Indian Armed forces have unfortunately watched their status whittle away as the bureaucratic establishment slowly but surely took control, abrogating to themselves more and more power. While there had been a few exceptions, most Service Chief’s have failed to stand up to the deep-rooted nexus of political and bureaucratic authority. Once the “Ministry” has spoken, it has been usually accepted as the last word.

 

2.8.  The fact that the Politician, Bureaucrat and the former COAS, who have the duty to uphold the dignity and honour of the nation, have been able to mould and manipulate the system to the disadvantage of competent, strong, capable and eligible officers to pick and choose and ensure the appointment of a particular person of their choice, shows the malafide and arbitrariness in the decision making process, resulting in the violation of Fundamental Rights as Guaranteed by Article 14 of the Constitution of India.

 

2.9.  The Constitution Bench of this Hon’ble Court in Kochunni Vs. State of Madras AIR 1959 SC page 725 has categorically held that an application under Article 32 cannot be refused merely on the ground that such an application has been made to the Supreme Court in the first instant, without resort to a High Court under Article 226 or there is some adequate alternative remedy available to the petitioner. It has further been held in the said judgment that the right to move the Supreme Court for the purpose for enforcing the fundamental rights it itself a fundamental right and thus the Petitioners are approaching this Hon’ble Court under Article 32.

 

2.10.        The present saga has its origin when General Joginder Jaswant Singh (Hereinafter Gen. J J Singh) assumed command of the Indian Army as COAS on 01.02.2005.

 

A Maratha Light Infantry officer, General JJ Singh was the first ever Sikh to rise to the top spot in the Army.

 

2.11.        The background in which this needs to be appreciated is, in the preceding months, as General NC Vij’s tenure at the helm was coming to an end, there had been a fair amount of ‘langar talk’ in the Army that General JJ Singh would be superseded by General Shamsher Mehta, an Armoured Corps officer. Though the Government of India by and large always followed the ‘seniority’ principle in selecting service chiefs (the only exception being General AS Vaidya who had been elevated over Lt General SK Sinha in 1983) there had been enough uncertainty resulting in the Shri Gurudwara Prabhandak Committee (hereinafter the SGPC) issuing a strongly worded statement which was published in a few newspapers in favour of General JJ Singh taking over as the first ever ‘Sikh’ chief. Said statement came in for heavy criticism and nothing more was heard of it again, but by General JJ Singh’s own admission, that there would have been a blood bath on the streets if he had been superseded.

 

The Petitioners assume that the SGPC’s statement probably had little or no bearing on the Appointment Committee which at that time was headed by the Present Hon’ble Prime Minister, Dr Man Mohan Singh. Yet the fact remains that for the first time in Independent India, the communal cards were played at the highest level in the Army.

 

General JJ Singh within few months of taking charge initiated some thing called “look down policy” which was intended to give a clear idea to the officer above the rank of Brigadier who was still climbing the command pyramid to as to what the “line of succession” would or could be and to work out his own list, where based on various permutations and combinations, the next three/four chiefs could be predicted.

 

The only list that mattered was General JJ Singh’s own prepared list, for as the Chief of the Indian army.

 

2.12.        It was well known that Gen. J J Singh was to be succeeded by General Gen. Deepak Kapoor, but his successor was to depend on the Promotion Boards which were to be held in future and especially towards the end of 2005 to decide as to which officers were to be cleared for the Lieutenant General Rank.

 

For the Line of Succession to succeed, General JJ Singh tweaked the events to clear the way for his immediate choice after General VK Singh.

 

At that point of time, Lt. General Bikram Singh was no where in the list of contenders, and there were other officers ahead of him, but were required to be ‘eliminated’ by General JJ Singh himself itself with a bit of deft maneuvering.

A list was prepared, nick-named ‘Op MOSES’ which implied that the Chief would pave the path for Lt. General Bikram Singh, for him to become the COAS in 2012. Like a family tree in reverse, Op MOSES listed potential threats that needed to be neutralized.

 

At this stage it would be pertinent to bring it to the notice that, for anyone to be in the line of becoming the COAS, the three Promotion Boards, pertaining to the Promotion of an officer as Brigadier, Major General and Lt. General is important, as the Person who would have maximum period of Residuary Services left would become the contender for the Post of COAS, and the Senior One amongst them at the time of retiring COAS, would if the Seniority Principle is adhered to would become the COAS. The functioning, appointment, duties and promotions are regulated by the Defence Services Regulations, 1986.

 

2.13.        There might have been many other who would have been sacrificed in the unethical and immoral game plan laid down by Gen. J J Singh, but some of them heading the list of contenders were Brigadier Padam Budhwar and MM Chaudhary, followed by Major Generals Shujan Chatterjee, AK Singh, Ravi Arora and VK Singh.

 

2.14.        While all the others had to be ‘fixed’ by manipulating their Brigadier to Major General Boards or by other delaying tactics that allowed Lt. Gen. Bikram Singh to overtake them, in the over all scheme of things it was also imperative that Gen. VK Singh becomes the Chief, but only till 2012, so that Lt. Gen. Bikram Singh, succeeds him.

 

2.15.        The Result for the Promotion Board held in October, 2004 for the Promotion of Officer from Brigadier to Major General was declassified on 21.02.2005. Apart from other Officers the name of Brig. Ravi Arora and Brig. Bikram Singh, were considered.

 

2.16.        But, to ensure that the Line of Succession works out well at the end, Brig. Ravi Arora despite being a Gold Medallist on commissioning and the senior-most in the batch was not empanelled but the Brig. Bikram Singh was. Aggrieved with the aforesaidempanelment Brig. Ravi Arora filed a Non- Statutory Complaint on 05.03.2005.

 

There were other non-statutory and statutory complaints filed.

 

The intention was to delay his promotion as much that, by the time he is empanelled to be the Lt. Gen, he should not be left with Sufficient Residuary Services to be considered for the Post of COAS.

 

While the other complaints were disposed of within 17 days, Brig. Ravi Arora’s complaint was deliberately not.

 

Unless the things are looked backward in the time, keeping in view the “Line of Succession” Gen J.J. Singh had made, his move could not be questioned, the same being apparently a malafide and arbitrary.

 

2.17.        While Brig. Ravi Arora’s Complaint was still pending, within 38 days of declassification of the Previous Promotion Board, Gen. JJ Singh held a ‘fast track’ promotion board on 01.04.2005, in which amongst others, one of his own staff Brig. Chetinder Singh, whose complaint was disposed of for the purpose, was considered and cleared for promotion, whereas Brig. Ravi Arora’s was not even considered.

 

The said board was irregular, unusual and discriminatory to others, since 60 days are provided to represent against the results and as per MOD Policy, the non-statutory complaints should be decided in three months, and thus previous list could not be said to be final till the time all the complaint made against the same is disposed off after due consideration.

 

2.18.        That the Promotions from Brigadier to Major General Rank is vacancy based, so not disposing off all the Complaints filed simultaneously, and granting promotion to some even before the expiry of the period for representation and disposal as per policy is apparently malafide and arbitrary exercise of authority, to favour few.

 

Soon after the aforesaid Promotion Board, Brig. Ravi Arora’s non-statutory complaint was rejected.

Against the aforesaid rejection Brig. Ravi Arora filed a Statutory Complaint on 21.05.2005, the said Complaint was vehemently opposed by Gen. J.J. Singh, to ensure that its disposal takes as long as possible, which as per plan took about 12 months against the mandatory six months for disposal.

 

The reason doing so was to ensure that he should not have the requisite residual service for promotion and appoint as Corps Commander or Army Commander later.

 

2.19.        A Promotion Board for promotion of officers from the rank of Major General to Lieutenant General was held on 30.09.2005. In which Gen. V K Singh was considered.

 

The results for the aforesaid board held, was declassified on 15.04.2006.

 

Before all the Promotion Boards held, Gen V K Singh’s Date of Birth, as produced by the AG Branch and the MS Branch was 10th May, 1951. The same was intentionally not touched.

 

For “Op MOSES” to succeed, it was imperative for Gen. V K Singh to be sent into a tail-spin. The timing was critical – to have created the age issue before his Lieutenant General Board would have meant that VK Singh would not be the chief, thereby knocking out Bikram Singh which would have been counter productive.

 

2.20.        The moment Gen V K Singh was cleared for promotion as Lieutenant General, at Gen. JJ Singh’s behest, the then MS fired off the first missile.

 

Lt General Richard Khare in a letter dated 03.05.2006, for the first time wrote to the then Lt. General VK Singh, that there is a discrepancy in his DOB in the Army List and the same is to be resolved.

 

At that time it could hardly have been any thing else but the reflecting of a correction. It was also conveyed to Gen VK Singh that the matter would be resolved after going through the records. However, he was told to reflect his date of birth as 1950 for the vague reason that he cannot change his age from what was reflected in UPSC application form and resultantly shown as such in Army List. The desired letter having been obtained from the unsuspecting Gen VK Singh, Op MOSES was now in full swing.

 

2.21.It is an admitted fact that although initially the Date of Birth of Gen. V K Singh was inadvertently shown as 1950 in the UPSC form, but the error was then only got corrected, i.e. even before he joined the National Defence Academy in 1966, and thereafter his DOB everywhere had been recorded and reflected as 1951 only. Even at the Indian Military Academy, where he was asked to fill up his form as per the original UPSC form, the correction was noted and the IMA records sent to the Adjudant General’s branch reflected 1951. On commissioning into the Army, his year of birth was listed as 1951. Even in the MS branch since his first commissioning as 2nd Lieutenant till he was promoted as Lieutenant General, his DOB has been 1951. All records in the AGs branch had the D.O.B. as 1951, and other than the Army List (which had failed to reflect the correction from the original UPSC form and was based on data forwarded by the MS branch without the requisite verification or checks) everything else listed his age as 1951. The said Army List considered to be fraught with errors and without any utility, had more or less been discontinued since 1990.

 

2.22.        Gen. JJ Singh was simultaneously working out on his plan to exterminate other from the race, from amongst Lt. Gen. Bikram’s contemporaries. MM Chaudhary and Padam Budhwar had already been passed over from the Major General rank after deliberately playing havoc with their promotional boards. The promotion of Brig. Ravi Arora, Gold Medallist, was already delayed to allow the favoured candidate to surge ahead.

 

2.23. The Review Promotion Board (SB No. 1 Review) was held on 25.07.2006. MS Branch record will show that Gen. Arora has a better chance over others, but in furtherance of other plan, in the said Review Board he was not approved intentionally. If he were, then the chances of Lt. Gen. Bikram Singh coming into the so-called succession chain would not have arisen. It is believed that the board was held specifically for the purpose of rejecting Brig. Ravi Arora’s Candidature.

 

The Ministry of Defence had raised objection about holding the board, as the previous Review board was yet to be confirmed by MoD.

 

Review No 1 SB was illegal as it has long been held that Army HQ cannot hold any selection board for a particular rank unless the previous board for the same rank is finalized. The same was clearly done with the ill motive by then the COAS, with the intention to pave path for Bikram Singh and to exclude Brig. Ravi Arora from the competition.

 

Moreover, if the Review Promotion Board would have been held after all the complaints received within the stipulated time would have been decided, then it was possible that Brig Chetinder Singh may not have got a vacancy, due to merit and vacancy.

 

Since Gen. Arora did not represent against Result of the aforesaid illegal Board, thus he was relegated to the next batch.

 

2.24.        Without there being any new material or confidential report coming on record, a Promotional Board was held again on 07.11.2006 (presided by Gen. J J Singh), which approved Brig. Ravi Arora for empanelment as Major General, but by then he was excluded from the succession chain.

 

2.25.        Whether the SGPC was in the loop is open to conjecture, but the seeds were sown for someone else to carry the can forward. Gen. JJ Singh handed over the baton to Gen. Deepak Kapoor and within three months took over as the Governor of Arunachal Pradesh.

 

2.26.        Gen. Deepak Kapoor succeeded Gen. JJ Singh, as COAS on 30.09.2007.

 

Though the epitaph of General Gen. Deepak Kapoor’s tenure as the COAS has the words ‘Adarsh’ and ‘Sukhna’ engraved on it, the fact of the matter is that the Indian Army was going through one of its lowest ebbs in the eyes of the public.

 

2.27.        Although Gen JJ Singh’s ‘look-down policy’ wanted Gen. VK Singh to be Gen. Deepak Kapoor’s successor, Gen. Deepak Kapoor on the other hand was desperate to shoot Gen. VK Singh down even before he could be appointed Army Chief, for the two officers were at the opposite end of the spectrum, both professionally and otherwise.

 

The stick which Gen JJ Singh had planted in the cupboard to truncate Gen. VK Singh’s tenure was now taken out by the said Gen. Deepak Kapoor to cut Gen. VK Singh down to size altogether. Accordingly, the MS Branch was now asked to rake up the age issue once again. However, two things came to VK Singh’s rescue: a) his excellent professional standing and b) in the overall scheme of things initiated in 2006, it was imperative that he became the Chief so that Lt. Gen. Bikram Singh could be appointed COAS in 2012.

 

This clearly indicated that there was a higher power at work, which outranked the COAS. The Ministry of Defence, fully aware of all the machinations under both Gen. JJ Singh and Gen. Deepak Kapoor, not only did nothing to sort out the mess, but chose to be the mute spectator from the sidelines as the drama unfolded.

 

2.28.        Gen. VK Singh moved to Calcutta in year 2009, where he took over as the Army Commander. Almost immediately, the Sukhna land scam was unearthed and despite stiff opposition from Gen. Deepak Kapoor, Gen. VK Singh decided to order an internal enquiry against the 33 Corps Commander and other senior officers.

 

At this stage a senior officer in the Gen. Deepak Kapoor hierarchy pointedly advised Gen VK Singh not to rock the boat.

 

2.29.        Gen. V.K. Singh, wrote to the MS, Lt General Avdesh Prakash asking him on what grounds had the MS branch advised Gen. Deepak Kapoor to ‘fix’ his year of birth at 1950. Lt General Avdesh Prakash, by then realized that despite Gen. Deepak Kapoor’s efforts to stall the Sukhna enquiry, it was just a matter of time before his name would come up in the deal and that he too would be implicated. Having failed to push Gen. VK Singh into a corner where he could have been court martialled for insubordination, Gen. Deepak Kapoor knew that Gen VK Singh was not going to just lie down and let the matter be. Lt General Naidu had by then retired and was replaced by Lt. General Nobel Thamburaj, so one hurdle had been removed. It was then decided by Gen. Deepak Kapoor and Lt General A Prakash, to make it appear as if Gen VK Singh, is petitioning the MS branch for ‘change of DOB’ rather than a mere correction to the redundant Army List.

 

2.30.        The MS, Lt General Avdesh Prakash, by then needed little prompting, for his only chance of defence in the Sukhna scam was to try and make it look as if he, an honest and upright officer, had stood in the way of Gen. VK Singh’s manipulation to change his DOB. His implication in the Sukhna land scam, he subsequently argued, was because he had thwarted Gen VK Singh who as the Eastern Army commander then vindictively got after him.

 

2.31.        Gen. Deepak Kapoor’s attempt to use the DOB issue to sack Gen.VK Singh before he moved as the Eastern Army Commander had alarmed Gen. JJ Singh and the powers that be who did not want Gen. Deepak Kapoor to tamper with the line of succession.

 

Gen. Deepak Kapoor failed to get at Gen. VK Singh at that stage because the Ministry of Defence did not blindly support him.

2.32.        The Appointments Committee, chaired by the Prime Minister for the third time (having earlier appointed JJ and Gen. Deepak Kapoor), cleared Gen. VK Singh to be the 24th Chief of the Army Staff.

 

2.33.        Gen. VK Singh on 31.03.2010 succeeded Gen. Deepak Kapoor as the 24th Chief of the Army Staff.

 

Apart from the various scams associated with Gen. Deepak Kapoor’s tenure, the Chief’s handling of the Northern Army Commander, Lt General HS Panag who had openly accused Gen. Deepak Kapoor of being corrupt.

 

2.34.        It was in talk sometime in October 2010, that Gen Deepak Kapoor fraudulently acquired a flat in the now infamous Adarsh Housing Society in Colaba, Mumbai, which was built fraudulently on the land under ‘de-facto’ possession of the Army, for the intended purpose of the welfare of Kargil heroes and their widows. This news brought a lot of adverse publicity to the Indian Army and dented its image. After this news was brought to public, Gen Kapoor claimed that he cancelled his allotment for the flat.

 

2.35.        As the Army Chief, Gen. VK Singh for the first time had the complete facts pertaining to his own ‘case’ before him and when viewed in totality, various pieces began to fall into place. Despite all the evidence to the contrary, the Ministry of Defence was doggedly sticking to Gen VK Singh’s DOB as being 1950 with the intention of forcing the General to retire on 31st May, 2012 as against 31st March, 2013.

 

2.36.        The Defence Minister, A. K. Antony who had assumed office on 26th October, 2006, repeatedly let it be known that though he sympathized with Gen. VK Singh, his ‘hands were tied’ in the matter and that the pre-determined line of succession had to be maintained at all costs.

 

The constant reference to ‘orders from above’ remained a baffling question; Gen. JJ Singh, despite being the chief architect of the ‘line of succession’ was the Governor of Arunachal with no direct authority over the Defence Minister.

2.37.        The orders from above virtually gave the bureaucrats in MOD the license to flex muscle; a series of selected leaks began to paint Gen VK Singh as a conniving officer who was desperate to gain an additional ten months in office, either by hook or by crook.

 

2.38.        An RTI application dated 28.10.2010; filed by one Dr. Kamal Taori in the Ministry of Defence to obtain information regarding Gen. V K Singh’s DOB and that of five senior generals of the army is relevant in this context as the whole controversy, which we witnessed recently, was some what unearthed pursuant to the said Application.

 

2.39.        The Legal Adviser (Defence) who is part of the MOD was requested by the AG Branch to provide opinion on the subject of Date of Birth.

 

2.40.        The Legal Adviser, Defence in reply dated 14.02.2011, provided an opinion, approved by the Ministry of Law and Justice, wherein, it was opined that as per the records pertaining to date of birth such as the ID Card issued by the IMA, the class X School certificate of Rajasthan Board, all confidential records and course reports, all medical examination reports and as per documents maintained by MP-5 and record of service sent by IMA, Gen. V K Singh’s date of birth is 10th May 1951.

 

Consequently, the Army HQ vide Letter Dated 23.02.2011, replied to the RTI query, informing that date of birth of Gen. V K Singh as per the records in AG Branch and as per the High School Certificate is 10th May 1951.Additionally, by another letter dated 8th May 2011 issued to the RTI queries, it was also stated that date of birth as recorded in the High School Certificate and in the records of the AG Branch were in consonance.

 

2.41.        The AG Branch issued an order bearing reference no. 12198/RTI/MP-6(a) dated 25.02.2011, to the MS Branch requesting that amendment be made in the records maintained at MS Branch, to reflect Gen. V K Singh’s date of birth as 10th May, 1951 in conformity with the records maintained by the AG Branch.

 

2.42.The MS Branch, vide letter dated 16th March, 2011 responded to the same stating that as per the policy, change of date of birth in respect of commissioned officers are required to be accepted by the competent authority in the Ministry of Defence and requesting that the acceptance of change in the instant case be obtained and intimated to MS Branch to enable relevant records to be amended.

 

2.43.The AG Branch, in response dated 21.03.2011, noted that the case did not pertain to request for change of date of birth and requested the MS Branch to initiate necessary action to correct the anomaly of incorrect entry of date of birth in their records.

 

Based on query by AG Branch, the Controller Defence Accounts (O) (CDA) responded on 30.03.2011, referring to letter bearing reference 12918/ RTI/ MP-6(a) Dated 25.02.2011, that as per the records maintained with the CDA (O), the date of birth of Gen. V K Singh is already shown as 10th May 1951 in consonance with the first form sent after commissioning which had been counter-signed by the then Commanding Officer.  The letter of CDA (O) assumes relevance because even as per AO 663/ 73, relied upon by the MS Branch, the entries in the Army List have to be verified by CGDA and the office of CDA (O) is directly subordinate to it.

 

2.44.        A Petition was submitted by General V.K. Singh on 21.04.2011, to the Prime Minister’s Office, the same along with all relevant documents was forwarded to the Attorney General for India for his opinion on the DoB issue by the Ministry of Law and Justice. The query framed for the Attorney General was whether a change in DoB was possible keeping in view that many years had passed since commissioning. The Ld. Attorney General opined that amendment of the DoB is not tenable and the issue cannot be reopened at this stage. True Copy of the Note of Mr. Subhash Chandra Jt. Sec. (G & Air) dated 06th May, 2011, True Copy of the Letter of Mr. R L Koli (Addl. Sec.) Advising that the issue may be referred to the Ld. Attorney General of India, dated 10.05.2011, True Copy of the Opinion of Ld. Attorney General of India, Mr. G.E. Vahanavati dated 16.05.2011 and True copy of the Letter dated 19th August, 2011 address to Shri Ravikesh K. Sinha, are annexed herewith and marked as ANNEXURE P-1 COLLY (Page No. 71 To 122)

 

2.45.        General V.K. Singh, thereafter on 25.05.2011, submitted a petition to the Defence Minister on the issue of DoB. The same was submitted to the Attorney General for re-consideration by the Ministry of Law and Justice. The Attorney General in his second opinion reiterated his position and stated that there was no ground for re-consideration.True Copy of the Note of Mr. Subhash Chandra, Jt. Secy. (G & Air) dated 01.06.2011, True Copy of the Note dated 07.06.2011 of Defence Secy., Mr. Pradeep Kumar and True Copy of the Final Opinion of the Ld. Attorney General of India dated

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s