What if President Overrules Orders of PM to Use Nuclear Weapons? Whose Orders Shall Indian Military Follow?

There has been serious ambiguities left in Indian Constitution in relation to management of defence of India. Unlike written constitution of sovereign nations, Indian constitution is silent on political management of defense. India today is a nuclear power. What if President as supreme commander of defense forces overrules PM over orders of firing of nuclear weapons by Military? Whom shall military obey? This is a doubt which exists in many military minds and needs clarification.

To further understand above let us see what does constitution says on management of defence?

Our constitution was actually designed for a dominion nation with No well defined  military responsibilities. It was drafted by British and copied with suitable amendments when India gained freedom.

What was the arrangement during British period just before freedom?

1. Indian military and defense of India was controlled by British Govt in London.

2. Viceroy India only dealt with internal security of India related to law and order and had no jurisdiction over defense of India.

3. Cdr in Chief Indian Army was solely responsible for execution of military strategy as approved by British Govt in London. On military strategy, Cdr in Chief was not required to consult viceroy but only keep him in information loop if required.

4. However to cut the British cost of defense, Indian military was attached to Central Govt of India for administration. All cost of salaries, equipment and administration of military in India  was borne by Indian budget.

5. Ministry of defense was structured only to provide administrative support to military.

While status of dominion of India under commonwealth was being structured not much change in administrative arrangement for defence of India was envisaged.  Though Governor General of India became responsible for immediate border defence of India, however Indian military was expected to evolve a strategy coordinating it with military strategy of Commonwealth.  Structure of Defence Ministry was not tempered and Indian military remained attached with Central Govt of India only for administration respecting independence of military power.


Constitution of free India surprisingly didn't  change the basic arrangement of higher political management of defense. Let us see what does constitution say:

1. Indian military still remains attached with Central Govt of India respecting its independence from political structure of India as was the case during British Period.

2.  Basic structure and role of Defence Ministry remains same as it was during British period to provide administrative support to Indian military bearing its all cost.

3. Instead of Queen in British India or Governor General in Dominion of India, President becomes Cdr in Chief of the Defense Forces. Under article 53 (II) Executive Military Authority has been separated from Executive Political Authority. Under article 53 military power is not subordinate to civil political power. These are two separate hats over the head of president.

4. As per Oath, it becomes responsibility of president to defend India. That means supreme executive military authority is vested in President. PM doesn't take oath to defend constitution. Chief Justice takes oath to defend constitution but only for upholding rule of law.

5. Military Officers are given commission by President and their parchment letters are signed by a military officer under a warrant from President.

6. All higher commander are given certain military powers under authority of warrants given by president.

7.  As per oath of military officers they have to OBSERVE first before OBEYING orders of President and any other military officer put over them as their commanding officers.  Command is legally defined word and can not be delegated or exercised under advice. That means even President can not delegate his powers of command to PM or the powers of command as per definition can also not be exercised on advice. Means while exercising his powers of command, President is not bound by advice of cabinet as military commands are absolute authority.

8. In practice it is Cabinet which advices president in his functions and under article 74 this advice is mandatory on President to follow. On matters of defence it is cabinet committee on security which takes all executive political decisions to advice President.

Now the question is "Is article 74 applicable on Military Authority of Command by the President and his subordinate Military Officers"? Further, article 34 gives military powers to declare martial law suspending civil political authority? There exists a serious ambiguity.

1. What is the correlation between article 74 and powers of military command of supreme commander?  As per legal definition of command it can not be delegated or exercised under advice. Does that means advice of cabinet on military matters are not binding on president and he can exercise his military authority of command without any reference to cabinet?

2. What is the correlation between article 73 and article 34? Article 34 gives powers of declaring martial laws to military commanders.

What if orders of President and Cabinet to military are different? Whose orders military officers shall observe to check its political correctness and then obey it? They take oath to observe and obey the orders of the president. Military orders are absolute in nature. Military officers if go by their oath then shall follow the orders of President and not the PM.

As per law, Military Chiefs hold appointment under a warrant of President. By oath and warrant their loyalties are towards president and not the PM.

Constitution is vague and leaves a serious gap in decision making on matters of defense.

Article 53, in fact demands a law for the president to exercise his military authority. Unfortunately same is missing.

India is a nuclear power today. What if President overrules PM on usage of Nuke?
Defence of India shall not be left into such deep vagueness.

Law makers shall debate this issue and make suitable legal provisions on

1. For President to exercise his military authority in accordance with law as envisaged under article 53.

2. For functioning of Cabinet Committee on Security and process of declaring war and peace by President. Defense of India is as serious a matter as passing a finance bill. Surprisingly procedure on finance bills are so clearly defined but decision making process on defence is missing.

3. To clarify correlation between article 34 and 53 (II) on one hand and article 74 on other.

4. To make laws for service conditions of defense personals under article 309 to 313 removing serious gaps in management of military personals. Practice of defense regulations are more followed under monarchy. Surprisingly Indian military still has many provisions regulated through such regulations and laws are missing.

The vagueness as existing in higher political and military management of defence in India is serious cause of concern specially so when India is a nuclear power. Management of defense of India needs clear constitutional provisions and law makers shall consider same.

Let good sense prevail

 




















 

Can By Voting NOTA a Govt Be Elected? Yes It Can be? CONVERT NOTA INTO A REFRENDUM TO FORM A CIVIL NATIONAL GOVT UNDER ART 34

Our democracy is sinking and there seems to be no hope. Crony capitalism is giving impression of owning govts. Political parties are owned by individual leaders or lobbies working with sole purpose of plundering the country. None of the political party has internal democracy. Their sources of funding are not known. Their leaders have no security clearances. We even dont know if many of them are foreign funded. Parliament has been hijacked through a system of whip. Tickets for MPs and MLAs are being sold. Some of them are bring treated like dogs and slapped by their leaders. Justice system has collapsed with corruption and decades of litigation. Administration is rusted and about to crumble. Govt public servants are only working to rewards themselves ignoring good governance for masses. Caste and religion based vote bank politics is dangerously dividing the country.

Democracy has been hijacked and masses are suffering. Martial Law is not the solution as it will bring more miseries and can trigger division of the nation. Armed revolution as being talked by red revolutionaries, will bring more destruction. On horizon, rise of no promising leader or party is seen. People will surely not keep suffering. If their caged anger explodes it will burn the nation to ashes.

Madi was seen as best and last choice when he spoke about only development and one India but he has deceived the masses. He has allowed corrupts, communal and castiests to overshadow his some what good work. In his govt corruption has changed the form. Now criminal rewards at top levels are not in form of bribes but favors to crony capitalists who in turn reward govt public servants through legal channels. It is the copy of the US system of corruption.

What is the choice then? We surely need to bring structural reform in our democracy, bring efficiency in governance, put justice system on rail. Empower member of parliaments and ensure transparent funding and internal democracy in all political parties. There is an urgent need to check if no political leader is foreign or crony capitalist funded. We need to crush corruption in any form. Unless this criminal greed is controlled nation can not develop.

What shall be done? Is there is any choice? YES THERE IS A CHOICE AND NOTA GIVES THAT? How can voting NOTA form a honest and professional govt? Yes it can be done fortunately. Within democratic norms NOTA CAN BE CONVERTED INTO A REFERENDUM TO REJECT CORRUPT DIVISIVE POWER POLITICS OF PLUNDER BY FEW AND LOBBIES.

CONVERT NOTA INTO A REFERENDUM. Voters themselves can convert elections into referendum to reject present corrupt politics. If majority of people vote NOTA that means present politics by corrupt overlords is rejected by people. That means under article 34 of the constitution, Military can back formation of a  "CIVIL NATIONAL GOVT" of honest and professionals. NOTA REFERENDUM mandate from the people is on the assurance that Military Generals will keep away from the Civil National Govt. This govt then shall bring structural reforms and hold elections within five years for mandate of people.

What can be a suggested process to form a Civil National Govt

1. NOTA is taken as referendum by voters and they vote in majority in its favor rejecting present corrupt political system.

2.  Only two constitutional positions take oath to defend constitution. First is president as Supreme Commander of Defense Forces and Second is Chief Justice of India to uphold rule of law. After, the peoples mandate, President, Chief Justice, All three services Chiefs and Cabinet Secy hold discussion and agree on a format.

3. Either supreme commander of defense forces or Senior most military chief on advise of Chief Justice of India declares Martial Law under article 34 and with consent of President and Chief Justice a suitable person is appointed as martial law administrator.

4. Martial Law Administrator passes a decree to form a Civil National Govt of honest and professional persons giving it mandate to bring structural reforms to restore democracy, justice system, governance and administration eliminating corruption and inefficiency.

5. Elections after 5 years are held under new restored constitution and new parliament is formed where restructured constitution and new laws are approved. Martial Law is withdrawn complying with article 34 of the Constitution (retaining it). New Constitution as approved by new parliament is signed by President or new parliament cant form a constituent assembly to debate and approve it. this procedure can be debated by experts and suitably evolved.  

Above is the only best suggested option for the people to bring revolutionary changes peacefully and democratically for best future of our children.

LET US CONVERT NEXT ELECTIONS INTO A REFERENDUM. VOTE NOTA FOR FORMING A CIVIL NATIONAL GOVT UNDER ARTICLE 34.

Become a CITIZEN SOLDIER to educate masses about how to use NOTA TO FORM A CIVIL NATIONAL GOVT.

Make it in a movement to VOTE NOTA IN NEXT NATIONAL ELECTIONS.

Join discussion on Facebook page of Citizen Soldiers. Like the page and join discussion.

https://www.facebook.com/Citizen-Soldier-1571203533125109/home








   

#JudiciaryUnderAttack? Really? Chief Justice is On Oath to Defend Constitution. What is he doing ? Playing Politics?

As reported in media, Chief Justice of India has expressed his concern over delay in appointment of judges by Govt. His expression has caused a debate in social media.

Let us see action of justice objectively. Chief Justice is well withing his right to to communicate to govt discreetly about his concern in delay of appointment of judges. If govt was not responding he should had taken suo moto cognizance  and asked for govt files in court.

But what has he done? He has chosen to spoke in open media? Why? Obviously he has intentions to create political ripples.

Other related issue is. Has Justice ever taken any action to curb corruptions in courts? Has Justice ever taken any action to reduce decades of litigation to acceptable time limits?

Any citizen of this country expect justice system to deliver justice within maximum three years without causing any disrespect and fear and without him or her paying any bribe? What are the plans for Chief Justice to ensure that? Has he shared any of these?

Justice System in the country has collapsed?

As per constitution only two people take oath to defend constitution? One President as Supreme Commander of Defense Forces and second Chief Justice by up holding rule of law? Please note that PM of India only takes oath of allegiance to abide by constitution.

If the defense and justice system are under pressure than as per oath it is responsibility of Supreme Cdr and Chief Justice to act.

Justice system in the country has already collapsed due to decades of litigation and corruption. No person of self respect like to go to court? Where is truth and where is its victory?

Chief Justice, instead of playing politics, shall seriously do his job and present a plan and execute same to ensure delivery of justice to citizens. Yes delay in appointment of judges is a cause of concern but communicate same with govt discreetly and take action if govt fails to give response.

Let Good Sense Prevail.

Army Captain Beaten by UP Police for Bribe; Will Army Desert Him? @adgpi @manoharparrikar @CMOfficeUP

Army Captain Beaten UP by Police for Bribe; Will Army Desert Him?

A very disturbing report is coming from Faizabad UP; where UP Police has beaten up a serving army Captain for bribe. As per initial reports, Army Captain was on leave and while driving his car there was a minor accident. Matter went to police wherein police asked Captain to pay bribe to hush up incident.  As reported, army captain refused to pay bribe which led to heated argument and police then mercilessly beat up serving army captain in spite of the knowing his identity. 

It is not first time police has beaten soldiers like this. Soldiers, military veterans and their families are in fact increasingly becoming victims of lawlessness and criminal mafia having strong links with corrupt politicians and police. Recently there was a case where father of a serving army Captain was murdered in spite of Captain speaking to SP police and no help was rendered. Few years back mother of serving soldiers was mercilessly murdered. Soldiers launched a massive social media campaign, met every one including home minister even then the criminal who killed his mother was not arrested as he has strong political links.  In Noida last year, a retired army colonel was given no help when his son died in a swimming pool due to criminal negligence owned by a criminal having strong links with politicians. Many soldiers in service and on retirement find their property having been grabbed by their relatives or land mafia. When they go to courts they face more harassment due to corruption in courts and decades of litigations.

It is a serious problem which soldiers and their families face today wherein they find becoming victim of their own criminal and corrupt system. It is easy for soldiers to gain a victory over enemy but these enemies within attacking soldiers are proving to be more fatal.

In such case police will generally resort to a cunning game of covering the case:

1.       They will first create a false counter allegation against Captain and become offensive.

2.       As elections are approaching in UP, State govt is likely to file few cases against police accused where in they are not arrested and suspend few police men.

3.       Police investigation ordered by police will harass captain more by prolonging investigation to protect their own personals. It may take years and at last Captain will give up and army will lose interest in the case.

4.       Even if police files a charge sheet in court against police accused, case will linger on for years creating more harassment of captain. In UP courts corruption is the order of the day. Justice shall not be expected.

What options army has?

1.   Army Chief shall speak to the Chief Minister asking for a judicial inquiry or joint Military – Civil inquiry (Civil Magistrate). Please do not leave to the army cdr as CMs generally don’t give much importance to them. Once judicial or joint inquiry is over, Judge/ magistrate can order registration of cases and arrests of the accused.

2.     If state govt doesn’t agree then army shall go for its own COI. Army COI shall investigate and record statements including police accused and after that recommend criminal cases. Naturally police accused will refuse to attend army court of inquiry. Army has the option to get them arrested through warrants issued from civil courts.

3.      Once Army Court of Inquire is done recommend case for CBI action as no fair play from UP police is expected. Army Court of Inquire can surely recommend that. Central Govt may or may not accept it. Insist on it. If required Chief shall meet PM, Governor and CM for CBI action.

4.       Chief shall make sure in all such cases where serving soldiers or their families become victim of state atrocities. Cases are given for CBI action after due COI by the military.

Now real issue is will army stand up in defense of their officer or will they desert him?   Track record of army unfortunately is very bad. History tells us Army has been deserting their soldiers and officers in such cases leaving them to the mercy of criminal and corrupt system. The attitude of the army of deserting their soldiers in facts encourages criminals more to target soldiers. What army does only time will tell?

Let good sense prevail.

Note: the author as Adjutant of the training center has dealt with one such case. Where he advised his commandant for army COI in spite of state ordering a magistrate inquiry. Army COI created shock waves in police delivering desired results.  

Why Shall Soldiers Be Paid More Than Us; Babus Ask @IASAssociation #NDTV #FaujiVsBabu

Last week on NDTV in their program  "We The People" on subject of 7th Pay Commission covered with hashtag #FaujiVsBabu following arguments were put forth by Secy IAS Association and Mr Mathur; Ex Chairman of 7th Pay Commission:

1. As civilians serve for longer periods in terms of their service so they get more pay and pension compare to soldiers. In other words as soldiers serve less in terms of length of service and retire early they are paid less.

2. Indian Military is volunteer force. Soldiers know what will they get so why crib later if you are not paid as well as well civilians.

3. Mr Mathur Chairman argued as Military lives in their own world?

Before coming to these questions, let us understand first how the salary structure of civilians and soldiers are as a principle, fixed world wide by most of functioning democracies keeping in line with best HR practices.

In case of civilians;

International Labor Organisation (ILO) to which India is also a member, fixes basic worker's labour related standards and conventions. ILO has published various standards and conventions including for minimum wages and parity. These standards and conventions are equally applicable to private and govt workers including in organised and unorganized sectors.

So when govt constitutes a pay commission ILO standards and conventions become main terms of reference for negotiations between commission and trade unions. Four issues generally are discussed in length 1. Salaries as per working conditions from hardest to softest. 2. Minimum wages as per work conditions 3. Parity of salaries as per similar work profiles 4. Pension schemes under social security convention.

Please note that principles of parity and minimum wages which is so often spoken about comes out of ILO conventions. Please also note that ILO provisions are only applicable to workers and not the managers.

Once a base line of minimum wages as per work profile and parities are fixed then the salary structure of higher positions are worked out in terms of multiplication factors citing arguments of salaries in private sectors and practices as followed in various other countries. Now various officers associations negotiate with commission for their salaries. For example the salary of Cabinet Secretory shall be X times of a Govt Chowkidar.  Please note that for their salaries there are no international conventions. Associations negotiate based on best practices. Many times these associations build their arguments citing ILO conventions like Parity though the same is not applicable to them. The concept of similar grades and NFU for govt officers have been copied from ILO conventions on parity. The OROP extended to all services are also based on the convention of parity. Three additional increments given to IAS officers are also argued citing ILO convention of work conditions saying they carry additional responsibilities.

Please also note here that ILO conventions do not discriminate between govt workers and workers from private sector. That means the principles of minimum wages and parity are equally applicable to all workers irrespective of their backgrounds. As per ILO convention the minimum wages of workers from govt and private sectors shall be same. That means, if minimum wage of a worker from private sector is Rs 6500 per month then minimum wages of a worker in govt shall not be less Rs 6500 per month. But then how minimum wages for worker in govt sector has been fixed Rs 18000 per months which is almost 3 times more then a worker from private sector? It actually violates the ILO convention on parity and amounts to discrimination by the Indian govt.  It is nothing but a loot by govt employees, officers with connivance of corrupt politicians. 

Now let us come to pension of civilian workers. Under ILO conventions of social security, broadly there are two model of pensions followed world wide for civilians. 1. Assured pensions which are generally called "Pay As You Go". 2. Contributory pension schemes like present NPS for Govt employees. World wide most of the govts have switched from assured pension model of "Pay As You Go' to contributory NPS model as it is not possible for govts to create an assured pension model for all workers from govt and private sectors. India under the obligation of ILO convention on social security has switched from assured pension model to contributory model. But here again Indian Govt is cheating. NPS schemes of workers in private sector is not same as the NPS scheme of govt employees. Govt NPS scheme gives certain minimum assured returns whereas it is not so for NPS schemes of worker from private sector. Keeping in line with ILO conventions world wide most of the democratic govts have same NPS schemes for private and govt workers. 

India in fact is miserably failing in providing required minimum wages and social security schemes to her population but govt civil employees under blessings of corrupt politicians, are on looting spree.

In Case of Soldiers:

Like civilian workers there are no ILO standards for soldiers except a convention on child soldiers debarring it. It itself makes an exception and that is the main reason for most of democratic govt having separate pay commissions or boards for fixing soldiers compensation packages. In fact Indian Govt has no justification for clubbing soldiers in same pay commission of civilian employees as soldiers are out of umbrella of ILO conventions.

Due to peculiarity of jobs requirements of soldiers and their key role in keeping nations and democracies defended  generally following guiding principles are adopted:

1. Citizens  while volunteering  to become soldiers, give life time commitments to defend nations in form of active color service, reservists and stand by military veterans to be called for service in extreme emergencies therefore they require state commitment of life time support. Emergencies like in Iraq where military veterans of even 80 years are fighting ISIS.

2. Citizens while volunteering accept harsh working conditions like working under military laws and giving away their certain freedoms and fundamental rights. Even after retirement their choice to pick up jobs globally are restricted. Like an Indian soldier after retirement will not be able to join armies or companies of hostile nations. Sates therefore have to give life time support guarantees and its a sovereign commitment.

3. A soldier becomes progressively unproductive for intense battles after a certain age or as his age increases and has to be superannuated, therefore for all compensation packages soldiers color service till when he is retired, is considered as full service and deserves maximum benefits. For better understanding that means color service of soldier is equal to max permissible service length of the a civilian and when a soldiers is retired at younger age after his color service, his take home life time career compensation shall not be lesser than a civilian who retires after his full length of service with no reserve liabilities.  

4. Any service more then soldier's color services is an additional service to state and needs to be given additional rewards.  That is the reason there are provisions in many armies to give pension up to 100% like US army.

5.    In military as officers lead from the front at their younger ages and have same training and working conditions in battles or otherwise, therefore like soldiers they are also given the same benefit of  color service with additional rewards for their leadership and state executive roles. Any additional service more than color service of officers require additional compensations as they retire in their pyramidal hierarchy structure.

6.  Working conditions of the soldiers as a principle are considered many times harder than the hardest of the working standards as defined by ILO. Soldiers also carry a commitment to give their lives for nations which no civilian work condition demands. In case of a risk a civilian in his hardest of the job, he is supposed to stop working following all safety procedures and leave the place to safety in shortest possible time. In case of a soldier he has to overcome the risk and can not leave the post even if he has to give his life if ordered. Therefore solders deserve special reward like Military Service Pay which is excluded in his compensation packages for drawing a parity with compensation packages of civilian employees.

7. Considering giving a compulsive  life time sovereign support commitments to soldiers most of the nations who are under constant threat in any form give assured pensions to their solders under Pay As You Go model. Nations like Australia who have lesser direct threats have turned to NPS model of pension to soldiers but soldiers in these model are given additional incentives in form of additional state contribution in their NPS than the civilians. Like in Australia state contribution in NPS is double than civilians.

With above principle and state commitments in mind generally following method is adopted for fixing salaries and pension of soldiers:

1. A base model is created taking into consideration the color service of a soldier and his assured pensions thereafter to work out a parity with civilians in terms of life time career compensations.

2. Special military incentives are additional to above base model.

3.  Any additional benefit which is given to soldiers like special food at Siachen is additional cost to state and is not considered as part of the  soldiers compensation model.

4. For any service more than color service soldiers are given additional benefits.

With above model in place, the cost of the state to maintain a regular standing armies go extremely high forcing them to adopt strategies to cut cost but without compromising on above explained model. Some of the tools used are:

1. If govt gives assured jobs to soldiers till retirement ages as specified for civilians, then the his pension is adjusted against the salary. However if he leaves civil job his pensions is restored.

2.  Nations keep smaller standing armies with provisions of calling reservists and keeping forces like Territorial Armies which could be mobelised for war within 3-6 months for a short term threat.

3.   Nations design mobilizations plans by creating certain silent reserves like NCC, Civil defense force, military veterans or arming and training civilian population living close to borders etc for long term threats to win a war in 3-5 years time.

4. Nations create additional forces in form of PMF and Police Forces for using them in duties like internal securities, borders guards and civil disturbances. Using military resources on border guard duties or counter insurgency operatiosn  as India is doing on LOC or in disturbed areas, increases the cost of the state and reduces power punch of military.

5. Young retiring officers and soldiers are used as national assets and employed by state in other duties like disaster management etc.

6. Military soldiers are encouraged to start up businesses. Govt supports starts up in incubators to support in terms of providing training, funding, credential support, JVst etc. Let us not forget in India also military entrepreneurs like Lt Col K P Singh of DLF, Capt Gopinathan of Deccan Airways and many,  have contributed in national GDP growth.  .

Nations cut cost by adopting different methods but at no stage, states cheat their own soldiers of standing serving armies. Indian Govt is actually cheating soldiers violating all established principles, citing no reasons and paying soldiers life time compensation which after 7th pay commission is lesser than forest guards.

With having explained above let us come to the questions as raised by two very senior IAS officers and Ex Chairman of 7th Pay Commission in the NDTV  show "We The People".

First argument was, Civilians are paid more as they serve longer? Let us see the fact? 

1. ILO standards exclude soldiers as their jobs are many times harder than hardest of the working conditions as specified by ILO.

2. Democratic Govts have worked out certain parity norms and as per that shorter color service of soldiers is considered equal to maximum service length of hardest of civilian job say 33 years in India.

3. The above argument was also accepted by first Indian Govt  when they fixed 75% pension for soldiers and 50% for officers comparing 25% to 30% of the civilians.

4 As a practice if soldier retires before his color service, his pension dues are lesser. Most govt start paying pensions to soldiers after 7-11 years of their service. But same is less than what they get at the end of the color service. In fact Indian govt has been cheating soldiers by not paying pensions to soldiers who quit jobs before completion of color service.  Worst sufferer are short service commissioned officers.

With above facts in mind the argument put forth by secy IAS association actually doesn't stand any ground if seen considering full length of civil service being equal to colour service of soldiers.

Second argument was "Why did you join as soldiers if you knew you will be paid lesser?" 

1. The same argument is also applicable to civilians? If you are paid less later on or your pay is not increased in subsequent pay commission, do civilians have right to go on strike? Why civilians negotiate and demand pay rise?

2. It is fundamental right given by Indian constitution to demand fair payments for the work services given and soldiers also have it? If Govts worldwide consider soldiering as many time harder work than hardest of the work conditions as specified by ILO than soldiers have constitutional right to demand more life time compensation and rewards than civilians? To pay less let govt justify soldiering being softer job than softest of work conditions as specified by ILO? Why are babus not explaining it? i do not think our constitution gives authority to govt to cheat or defraud soldiers?

Third argument was, "They live in their own world"? 

Mr Mathur, (I will not not call him Justice as use of this title by him or govt is unconstitutional. Attention of babus are drawn to article 18 of the constitution) I do not understand what does it mean?

1. Do you mean that soldiers shall also warm up palms of politicians and babus to get favor as many business associations or corporate houses do?

2. Do you mean that military officers also lobby politicians, judges and top babus and bribe them?

3. Do you mean retd soldiers shall also  form associations and give bribes to get govt policies changed.

4. Do you mean that soldiers shall become politically active?

It appears Mr Mathur has punished soldiers to please Cong as soldiers voted Modi. let us not forget he was appointed by UPA Govt. The quality of report which he has submitted create doubt over his qualification to even become judge?

Mr Mathur soldiers are suppose to live in their own world till politicians and babus screw up situations and call for help from military? As per our constitution, soldiers become visible in certain conditions till extend of even declaring martial laws, till then they are suppose to live in their own world. Please do not incite military.

7th Pay Commission recommendations, as accepted by govt has shattered soldiers belief in govt and that surely is a dangerous situation as no soldier fights to risk his death unless he has pride in his work and uniform, unless he has trust in his govt, his military leadership, cause, weapon systems, logistics and assured safety of his own wife and children. Best of the armies melt away if any of these factors are weak. Let us not forget Indian soldier did leave their posts in 62 wars at few locations.

As General Malik said; At the end of the day, "it is political leadership of the nation which has to take a call". Nation has to decide whether she wants a professional military which can effectively deter wars and threats and win it if enemies make a wrong choice or Ghasi Ram ki Fauj paid lesser than forest guards. Political decisions influenced by corrupt babus with ulterior motives and infested with god like egos will lead to wrong decisions and surely result in nation paying heavy costs. In given security situation, in spite of nukes and plethora of missiles, India is still struggling to ensure an effective defense to her. Certain wrong decisions in relation to reward systems of soldiers giving them a feeling of inferiority and hurting their pride will prove to be disastrous to the moral of troops affecting their war fighting capabilities. After all it is men behind machines which matter most and India is yet to get a robotic army which could be controlled by babus sitting in AC offices in Delhi.

Let good sense prevail.











































































    

Those Who Beg Get Coins Only. Military Pleading Corrupt Establishment for Justice #7thCPC

While discussing step motherly treatment being given to soldiers by govt once I told a serving army commander "Those who beg get chillar (Coins) only". I was from his unit and regiment and in his personal staff. He knew my habit of being blunt but somehow he always liked my arguments, so he discussed it further. He asked, what is the solution?  I said in our democracy military has a constitutional role, play it and communicate with govt as mother conveys with her child with firm eyes.

In 1994 when Gen VP Malik was commandant staff college, he created a very positive environment for intellectual discussions and learning. I am his big fan. Being from Madras Regt and coming for staff college from my center co-located at same location, I was not given accommodation by the college as I was told to retain station accommodation.  My house was close to house of Gen Malik and some times in evening we used to cross each others path while walking with our families. Gen Malik is rare breed of General who is honest, intellectually very strong, humble and visionary. Sometimes, we used to stop for a while for a small chit chat. General  and Mrs Malik liked children and they used to play with my elder daughter; Ankita. This General has towering sweet personality which can melt biggest of ego. I could feel his pain when he made his famous statement as army chief during Kargil War " We will fight with whatever we have". he is a true nationalist but he could also not make any dent on corrupt and arrogant political establishment.

So during staff college, when Gen Malik was commandant, a two days seminar on "Higher Poltical Management of War" was conducted. Many known personalities from civil attended it. We students were allowed to participate.  We were lucky to have late Inder Mehrotra participating with us but for first one and half days he kept quite. Rightly so all key issues related to subject were flagged and discussed highlighting gaps in political directions. At last late Inder Mahrotra spoke. As my tribute to this true Indian I put his words on records here as I remember and recreate.

He said and I quote;

"Gentlemen I am fortunate to have attended this seminar. Rarely we civilians find an opportunity to discuss such subjects of national importance with military leadership and that also in such open and frank environment. I have never seen it happening at least in military environment so far and I compliment Gen Malik for same. I have been hearing various speakers from military and civil both and the discussions therein. I am impressed with the young military officers who have participated in these discussions so openly and some of the arguments which they have made has touched my intellectual reasoning also. At least now I know our democracy is in safe hands.

With that confidence , let me share my observation on the subject with you? Why shall you blame political leadership of the country? If you say they do not have required expertise in matter of management of war then isn't your constitutional duty to educate political leadership? Why shall you blame babus? Is it their job?  I have seen military chiefs walking in office of the PM and talking to him directly on urgent matters of national importance and I have also seen chiefs pleading with defense secretory to get a favor from defense minister? Well if their are gaps in higher political management of war then whom should you blame?  I blame senior leadership of military in having failed in their constitutional duty to effectively communicate with political leadership? Why shall you go through a babu? If there are no military war doctrines or political strategy of war, my question to you is, have you drafted one and put it up to political leadership for their approval?  If there were no clear written orders of govt for war in 62, 65 or 71 wars, why shall you accept such unwritten orders? Did you insist for it? Gentleman I stop here and leave it for your judgement for further discussion on what I have said. ".

Unquote.

There was pin drop silence but after few moment few young officers got up to discuss it further to sheer discomfort of some Generals attending the seminar. As usual with his cheerful smile, Gen Malik at last intervened positively petting the young officers with a word of caution to leave it to senior leadership of the military and have trust.  The seminar had a positive impact when Army Navy and Airforce drafted their war doctrines and submitted for approval of Govt. ( I will request Gen Malik to correct me if I have misquoted).

I am quoting this story to ask present senior military leadership, the same question? Have you on military reward and compensation submitted any comprehensive professional model to the Govt for their considerations? As I know, joint pay commission cell of the military has been only submitting recommendations and then trying to build argument to plead with babus. There have never been any attempt by military to submit a comprehensive proposal separately to bring structural changes in reward system of military keeping in line with the best practices followed by best of functioning democracies. Military leadership has the authority and space to conduct such study and submit a proposal for the approval of Govt. The same proposal can also be then circulated to standing committee of Parliament for their assessment and recommendations. The proposal shall analyse issues like standing military commission, resettlement of the ex servicemen etc in detail. Please note that by law it is the command responsibility of every military commander to look after the welfare of his men under his command? The Chetwood motto also says so. 

Military commanders therefore can not shed their responsibilities showing their helplessness quoting various letters written by them to govt and babus ignoring them. Can babus be Bhagya Vidhtata of constitutional Military Authority? Why should military leadership or veterans beg for justice bringing Izzat in between? First do your homework and your job? Put it on record and its serious repercussion on military fighting capabilities. After all quality of compensation packages have direct bearing on status and performance out put of any organisation. 

In a democracy like India, where justice system has collapsed and taking decades to deliver whatever it may be called but surely not justice, where the kinds of scams which are unearthed on almost daily basis, where corruption rules in govt offices, where babus behave like gods, where arrogance and egos have blinded wisdom, where crony capitalist give an impression of owning govts, where farmers are committing suicide and soldiers being harassed and their properties being grabbed by criminal mafia, will reasoning for justice or Izzat work? It wont and that is what is happening when babus are declining recommendations of military citing no reasons or justifications. Why waste time sitting on Jantar Mantar and get humiliated? Will such corrupt, blind and arrogant minds ever understand the reason?

let military leadership do what they are suppose to do in any democracy and as authorized by constitution?  Military is well within its rights with out any reference to Govt, to order a study to make a comprehensive proposal to restructure entire reward and compensation system keeping in lines with best HR practices as relevant to military and followed in functioning democracies. The proposed structure shall also be affordable, should cut down the cost and improve efficiency. It shall in its terms of reference include giving proposals on subjects like "Standing Military Commission" and Resettlement of Ex Servicemen, bringing any amendments in constitution like placing welfare and resettlement of soldiers as a subject in concurrent list, making laws under article 309-313 of the constitution and any other. Why shall military only wake up when Govt orders Pay Commission? or unending fooling system of various committees start? 

I don't think Izzat can be earned by begging. Do your job as envisaged in constitution and what you are suppose to do as per your oath and your commitment to democracy. No Govt or political leadership or babu is above constitution. Let good sense prevail.  

WHY SHALL THERE BE AFSPA IF A CIVIL MAGISTRATE CAN ORDER ARMY TO FIRE IN AID TO CIVIL AUTHORITY? IS IT SO? EVERY IAS MUST READ IT

Many Politicians, civil bureaucracy and people have the wrong impression that in Aid to Civil Power, a magistrate can order Army to open fire. In view of same an argument is being pushed that if a magistrate can order army to fire then why shall there be AFSPA?

The same argument is also given by many IAS to propound a theory of their supremacy over commissioned officers of army with the statement that in peace time only Army Brigadier can order fire where as in civil a Collector can do it? So a Army brigadier is equal to Collector. Based on this argument many states govt in clear violation of Order of Precedence set by Central Govt, have issued their own Order of Precedence equating Collector with an Army Brigadier.

The argument has also been used to tweak army pay structure to bring it down. One senior IAS officer used same argument before 7 pay commission recommendations were made to put down armed forces pay structures and also to deny OROP to them.

Ignorance may be bliss but it becomes a curse if the same is used to govern the country to promote ulterior motives of establishing unfounded and illegal authorities by arrogant and corrupt establishments. What is the right legal position then? As per constitution and law, Armed forces can be used by govt as under:

1. To wage war against enemies any where in the world and within country under Defense of India Act and Rules.

2.   Under emergency provisions of constitution where Govt can declare emergency in whole country or part on grounds of deteriorating security situations and use military force by decree.

3.  Under Armed Forces Special Powers Act when the area is declared disturbed by a state govt under an elected govt or under president rule.

4. Under provisions of Cr PC 130 wherein an Executive Magistrate of highest rank; in this case a collector, can order army to disperse an unlawful assembly.

5. Under provisions of Cr PC 131 wherein any commissioned officer or gazetted officer ( JCO; Subedar or Nb Subedar) can disperse such unlawful assembly using military force as he seems fit but shall communicate with  an Executive Magistrate; Collector, in shortest possible time.

6. Under indirect provisions of Martial Law under  article 34 of the constitution wherein an officer of the rank of Brigadier and above, in case civil govt collapsing due to any reason, can declare martial law in any part of the country or in whole country as applicable as per their jurisdiction to restore the authority of civil govt as envisaged in the constitution.

In above provisions as given in point 3 and 4, the immunity has been given to member of armed forces from arrest under sec 45 of the Cr PC unless sanctioned by the central govt. Under provisions of law as mentioned in point 1 above, the law gives tremendous powers to central govt and armed forces to the extend of applying military law to civilians.Under the law as mentioned in point 2 above central govt may provide immunity in existing sec 45 of Cr PC or make any other law under a decree. Under AFSPA act as mentioned above in point 3, it itself repeats the provision of section 45 of the Cr PC. Under Martial law armed forces itself can make laws to provide them immunity.

As per constitution, the law and order is a state subject and defense of India is the subject of central govt. Going by the spirit of the constitution, military force shall not be used against own citizens unless a law and order problem is throwing a serious security challenge to defense of India. Or in other words, if a law and order problem escalates into a scrutiny threat and state govt finds it difficult to control it within given legal authority and means using all other forces at its disposal, state govt or central govt may call upon army to assist state govt in restoring law and order by using military force. Accordingly above legal provisions have been made to deal with entire spectrum of  intensities of violence which may be used by unlawful assemblies threatening law and order.

With above provisions in mind, let us come back to the argument being propounded for scraping AFSPA on ground that if a Magistrate has powers to order army to fire to disperse an unlawful assembly then why shall there be AFSPA?    

Let us assume a situation when there is no AFSPA. What are the provisions then available to state govt to use military force? It is only under section 130 of Cr Pc, an executive magistrate of highest rank (Collector) exercising authority of state govt, can requisition army to disperses an unlawful assembly. Let us discuss this section in some more detail.

Sub section 130 (1) makes the provision for use of military force to disperse unlawful assembly by an executive magistrate of highest rank exercising the state authority.

Sub section 130 (2) further explains the manner in which an executive magistrate shall require army to disperse an unlawful assembly  and use the words 'with the help of the armed forces'. It means this section doesn't put armed forces under the command of the executive magistrate.

Sub section 130 (3) explains the manner in which armed forces shall respond to such requisitions made by an executive magistrate of highest rank (collector) exercising state authority.  It says:

"Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in doing so he shall use as little force, and as little injury to person and property, as may be consistent with dispersing and arresting and detaining such person".  

Let us see what are the implications of this subsection. The use word 'obey' means that armed forces have no authority to refuse such requisition made by an executive magistrate but the same sentence also puts a condition 'in such manner as he thinks fit'. That means an officer of armed forces retains the authority to make his decision and use his military power as vested in him by law to select how much force and in what manner shall be used to disperse and arrest and detain.  Executive magistrate has no authority over armed forces and can not order how much force to use, when to fire, where to fire, how to fire and what to fire?  

The section 130 of Cr PC doesn't specify at what moment the authority of state to maintain law and order is transferred  or passed to officer of the armed forces by an executive magistrate acting under the provisions of law and for how much period? The issues has been debated in length by the various HC and SC and based on their observations and also in few cases executive magistrates blaming army of using military force on their own, a procedure has been adopted wherein army only accepts written requisition mentioning date and time from an executive magistrate. Accordingly every officer including a NCO of the armed forces deployed in such duties carry a form of requisition and it is signed jointly with executive magistrate before officer of armed forces orders troops under his command to use military force to disperse and arrest and detain unlawful assembly.

The section 130 is silent on the aspect that when will the officer of armed forces, who has taken over control of situation  from an executive magistrate under a written requisition signed jointly will hand over the control back to executive magistrate. However if this aspect is seen under the provisions of section 131 of IPC then it become clear that an executive magistrate can ask officer of the armed forces the control of situation back. Accordingly every officer of the armed forces including a NCO deployed on such duties carry a printed form which is signed jointly by officer of the armed forces and executive magistrate to hand over control of situation back to executive magistrate. 

A very interesting legal aspect of authority shall be noted here.  The legal provision uses the word executive magistrate of the highest rank but it may not be possible for a collector to be present on all disturbed spots therefore such authority in such situation is delegated to authorized magistrates who are civil gazetted officers. Similarly in case of armed force as per their operating procedures, the word 'officer' also includes NCO. So how does armed forces operate complying with provisions of civil and military laws both?  So for meeting the requirement of law, the requisition form can only be signed by a commissioned officer or a JCO from armed forces. However such commissioned officer or a JCO under military law and operating procedure can order a NCO to exercise power to disperse and arrest and detain. That mean in case of armed forces the state powers of the magistrate are exercised by NCO too. The AFSPA act actually makes it more clear when in the definition of officer of armed forces, NCO has been included. 

Now let us come back to the main question as raised under the subject heading; "Why shall AFSPA be there if a civil magistrate can order army to fire in aid to civil authority'? Following facts and issues which emerge from explanations as given above are given below.

1. A Civil Magistrate has no authority over armed forces to order fire.

2. Armed forces are used in aid to civil authority only for short duration and are related to disturbed situation at a spot and not an area or region.

3. In areas which are infested with insurgency where state of armed rebellion exists or area is disturbed due to  high intensity of violence existing or likely to erupt, what if a magistrate doesn't requisition armed forces under threat of insurgents or terrorists allowing state administration to collapse?  

There have been various instances where magistrates have denied requisitioning army even in riots infested areas forcing army to only accept written requisitions.  If such things can happen in normal peace times where riots have erupted it is most likely that in a insurgency infested area, a magistrate under threat may not even requisition armed forces.

Shall in such situation central govt or state govt allow civil administration to collapse and force either army to impose martial law or central govt  to impose emergency? Keeping in line with right spirit of the constitution, democracy and freedom it is imperative upon central govt to avoid declaration of emergency or armed forces imposing martial law.

To manage disturbed situation of insurgency or threats from armed criminals and terrorists and also maintain right spirit of democracy under an elected state govt, Central Govt had no choice except to bring special laws in form of disturbed area act and AFSPA or suitably amend sections 130 and 131 of Cr PC to give armed forces special powers to deal with the situation with out reference to requisitioning procedure by the magistrate.

Under Disturbed Area Act the state govt has been actually empowered to requisition armed forces for maintenance of law and order for up to 6 months instead of magistrate under section 130 of Cr PC for shorter duration. AFSPA act actually gives no extra authority to armed forces but only reiterates provisions of Cr PC in more forceful manner  Actually Distruebd Area Act and AFSPA act can be scrapped if section 130 and 131 of IPC are suitably amended. But will it make difference? No. The operating procedure of armed forces will still remain same however it will extend the application of such laws to whole country instead of special laws having been made applicable to few disturbed states only.

Now question is, shall state govt keep extending Disturbed Area Act by renewing its notification every 6 months? So issue is not the law itself but its application? Citizens are fundamentally right and take to street when they find themselves subjected to military force for a longer period. It breeds more discontentment and forces more youths to pick up arms in rebellion.

Why shall central govt and state govt insist on use of armed forces for law and order problem and expect use of lathis and other soft forces by armed forces? Better is not to use armed forces if situation has improved. It will be highly dangerous to use army for milder force as it will blunt the sharp edge of their power which they use against enemies and also make soldiers softer. Provisions of section 131 are already there for armed forces to use military force on their own in case of they being attacked? Same can be suitably amended to satisfy concerns of the armed forces of security of their men, material and movements.

On contrary armed forces are not happy with existing legal provisions to fight proxy wars fueled by neighbors like in Kahmir and find provisions of AFSPA highly inadequate due to following reasons

1. Armed forces have no powers to investigate which makes their intelligence network totally ineffective thereby making their operations blunt and directionless. Intelligence provided by other agencies proves to be highly unreliable and many times have led soldiers to be ambushed.

2. In such proxy war subjected areas like Kashmir, state criminal justice system  comes under threat of armed rebellions and foreign agents and fails to convict such arrested enemies fighting proxy wars with state. It results in a situation where in though armed forces have convicted almost 2000 plus soldiers on charges of human right violations but state criminal justice system has not punished even a single enemy. It results in soldiers asking a very natural question. State is with whom? Enemies or soldiers? It affects their moral dangerously.

Keeping in mind the frustration of harassed people, problems of soldiers, spirit of law, freedom and democracy and requirements of military operations there is surely a need to review the situation and come up with better legal arrangements. The following strategy shall be adopted:

1. Distinguish between proxy wars and internal armed rebellions. Like in Kashmir it is proxy war and in Assam it is a armed rebellion by criminals.

2. Use armed forces only in case of proxy wars and high intensity armed rebellion but not more than 3 - 5 years.  In rest of situation use either PMF like RR or use CAPF like BSF or CRPF.

3. For using armed forces in situations of proxy wars and high intensity armed rebellion empower armed forces with powers of investigations and  constitute military courts to punish arrested enemies in shortest possible time. It will make operations of armed forces sharp and will help in controlling situation in 3-5 years time rather than keep fighting for decades. The fear of armed forces coming back with military courts will keep subvertive  emotions and thoughts of people under check. In such situation the state shall be brought under president rule. Make special new laws accordingly.

4. In other situation of armed rebellion, only PMF like RR or CAPF like CRPF shall be used. Amend Cr PC sections 130 and 131 accordingly for:

a. Armed forces to come for assistance to civil authority for not more than 3 months or shall conduct special joint surgical operations against identified potential targets.

b.  Allow armed forces to keep collecting intelligence and  joint investigations in key incidents so that when they are called upon troops are equipped with specific intelligence for conducting effective operations. Troops then can go back to barracks after fishing their task within 3 months.

c. Empower armed forces  to act in self defense by further strengthening section 131 of CrPC as attacks on armed forces by terrorists can happen anywhere in the country.

5. After making above provisions, scrap AFSPA.

Let us understand, to avoid imposition of martial law and state of emergency which are not good for the health of democracy, it is obligatory on part of central and state govt  to make special legal provisions to back criminal justice system to deal with the situation of armed rebellion and proxy wars. Only thinking of armed forces or PMF or CAPF fighting armed enemies or insurgents or terrorist with out making criminal justice system effective and responsive will land  us in a messy situation where we have reached now.

Subjecting citizens under military force for longer duration countermands the spirit of democracy, respect and freedom as assured under our constitution.  We must adopt a system where common citizen is subject to such hardship of disturbed situation due to armed rebellion for shortest possible time. Disturbed Area Act and AFSPA are inadequate to deal with the situation and surely we need to scrap it by making suitable changes or replacing it with some special laws to deal with situations like proxy wars, high intensity armed rebellion and armed rebellions.

For doing above, we need to first educate law makers, IAS officers, judiciary, CAPF, armed forces officers and people, about the gravity of situation and inadequate response which such disturbed situation is getting allowing it to simmer for longer periods thus making citizens to suffer hardship for longer periods and turning youths into enemies. Very responsible people asking such question as given in subject tagline surely indicated a very high levels of ignorance prevailing in many minds.

Surely enough our NCO and JCO deserve better respect and pay as they exercise the powers of civil magistrates. It is not a Brigadier of Army who is equivalent to an collectors as have been decided by few states violating warrant of precedence of central govt but JCO who as a gazetted officer can sign requisition with him and his status as given by law shall be respected. By law commissioned officers are vested with executive powers of the state like civil political authority and comparing them with administrative gazetted officers who support such executive political authority is highly unconstitutional.































        

  

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