JUDICIAL PERFIDIES - RAVINDRAN

JUDICIAL PERFIDIES-32 One can continue to write about judicial perfidies till cows come home but it will be only repeating the same narratives with change in the names of the characters. The plot cannot change. It will remain the denial of justice by those who are tasked, empowered and paid to provide it. So, while the critiques can and will continue, there is a need to come to terms with the fact that one has only one life to live. Hence there is this need to wind up this series with a quick recap of the defects/deficiencies that have been brought out so far. And that should lead us to the solutions, implicitly or, if need be, explicitly. We are already familiar with these fundamentals of jurisprudence: ➢ Justice delayed is justice denied ➢ Justice should not only be done but seen to be done ➢ Not a single innocent person shall be punished even if a hundred criminals are allowed to go free and ➢ Capital punishment shall be awarded in the rarest of rare cases. But there are two even more fundamental principles that are not often spoken about: ➢ Your liberty ends where my nose begins and ➢ Justice implies two aspects: punishing the guilty and compensating the victim. My first experience with a court of law was neither as a complainant nor as a respondent to a complaint. It was merely for a court of wards permission to mortgage an ancestral plot of land on which I was constructing a house. But at the end of 4 years when I withdrew the application, the lessons I carried home were of the incompetence and arrogance of the judge and the lack of professionalism and servility of the advocate. My subsequent experiences with the judiciary have taught me that it is the judges who have made it so. Then I got stuck with a consumer complaint where I had got a favorable verdict from the District Consumer Disputes Redressal Forum (as it was then, now it is also a Commission). The opposite party had taken up the matter with the appellate body, the State Commission quoting a preposterous judgment of the Kerala High Court in Jancy Joseph Vs Union of India (1999 (1) KLT 422). There a single judge had ruled that women could not be arrested in cases involving recovery of money. This was a gender based discrimination and against the Constitution. It was done by applying Section 56 of the Civil Procedure Code (of 1908 vintage) to Section 27 of the Consumer Protection Act, 1986. But he had aggravated the discrimination by ruling that others (read, men) could be arrested even if they had no means to pay, which was against the provision of the same Section 56 of the CPC. Since I was now a victim of this totally unjudicious verdict, I had to pursue another case in the High Court of Kerala, questioning the decision in Jancy Joseph. It took the High Court a year and half to dismiss this petition with a curt 2 sentence verdict: ‘This matter had been decided in Petition Number xxxx/yyyy and held against the appellant. Hence this petition is dismissed.’ My advocate while providing me copy of the order did not provide me the copy of the order quoted therein. The court had refused to provide a copy of the same even under the Right to Information Act, saying that it is part of judicial proceedings and cannot be provided as per the High Court’s RTI Rules. Some justice and transparency there! The appeals and revision petitions by the opposite party in the State Commission were also dismissed and after reverting to the District Forum the verdict was again given in my favor but with much reduced refund of cost and compensation without any valid reason. The total litigation lasted 11 years and it had cost me 4 times more than what I had lost as per my complaint. Later, I came to know that a division bench of the same court in Mary Chacko vs Jancy Joseph (2005 (3) KLT 925), in the context of application of the same Section 56 of the CPC to SARFAESI Act had taken a different stand and ordered that women can be arrested because 'there is a clear basis for treating the public dues different from the purely private'. Since then I have been left wondering under which law it is permitted to cheat ordinary citizens of justice. Meanwhile, in 2002, in an article - ‘Democracy? East is East and West is West…’- I first wrote about the need to have rule of law instead of rule of judges. The article is available at http://suchnaexpress.blogspot.com/2011/01/democracyeast-is-east-and-west-is-west.html. Much water has flown down our rivers but the need for a total overhaul of our judiciary has only got reinforced and reached a stage where citizens have begun to perceive the judiciary as a threat to rule of law and democracy. My letter to the Chief Justice of the Kerala High Court on 18 Nov 2004 had dealt with the following issues afflicting the judiciary: contempt of court (anathema in a democracy), judicial accountability and the need for a National Judicial Commission to try judges (for all omissions and commissions under laws applicable to all citizens), judicial accessibility, judicial process, listing of cases, personal appearance of litigants and representatives, involvement of advocates, citizens’ charter and working hours, grading of advocates and norms for fees and irrationality and unfairness of decisions. The contents of the letter are available at http://raviforjustice.blogspot.com/2011/02/reforming-our-justice-deliverysystem. html. This was followed by a one man satyagraha in front of the High Court which was disrupted by the police on the direction of the concerned official of the court. Some respect for freedom of expression which is tom-tommed by our judges who have flip-flopped even in the context of bandhs/hartals which have been bringing normal life to a standstill. Once it was rightly held that they are illegal because it affected the fundamental rights of other citizens but they retracted later. Even thereafter a judge made road side meetings illegal leading to a politician rightly calling him a dimwit. And for this comment he was punished for contempt of court with imprisonment for six months. On 31 May 2005 an online petition was initiated addressed to the President and Prime Minister of India to constitute a National Judicial Commission to try and punish judges as per laws applicable to ordinary citizens but with twice the severity in punishment. This petition was posted at http://www.PetitionOnline.com/jrandac1/petition.html which is now defunct. However, copy of the petition and the list, including the comments, of 429 citizens who had supported it are posted at https://www.slideshare.net/raviforjustice/310505-thepetition- toconstituteanationaljudicialcommission and https://www.slideshare.net/raviforjustice/310505thepetitiontoconstituteanationaljudicialc ommissionsignatures1to429 respectively. It is evident that the failure begins with the Constitution that has created this institution without any systemic checks and worse, provided armor to it through a blasphemously antidemocratic contempt powers. Imagine an employer of a company being made liable to punishment for calling out a non-performing employee. Did the architect(s) of our Constitution forget the very meaning of the term democracy? While a detailed analysis- ‘Report of the NCRWC- a Citizens Review’- can be read at http://raviforjustice.blogspot.com/2011/03/report-of-ncrwc-citizens-review.html, the following notes, by one of the two of the non-judicial members of the National Commission to Review the Working of the Constitution, are relevant: Dr Subash Kashyap, former Secretary General of Lok Sabha, had noted: 'While no comments are being made on what went wrong in the procedure, priorities and perspective, it may be put on record that several of the recommendations now forming part of the report go directly counter to the clear decisions of the Commission on which the unanimously adopted draft report of the Drafting and Editorial Committee was based'. Also, 'The Chapter 7 of the Report is titled 'The Judiciary'. This chapter particularly is seriously flawed and distorted. The much needed Judicial Reform issues have not been even touched or these got deleted in the final draft'? Shouldn’t this suffice to overhaul our judiciary, lock, stock and barrel? Right from the format of petitions to the complete process from registering a case to its conclusion, every aspect of our judicial functions needs to be reworked. The first issue that comes in the context of format of petitions is the content and details. Given that the petitioner is a layman and the judge is a qualified lawyer, shouldn’t it suffice if the petitioner just narrates the facts of the complaint in the petition? Shouldn’t it be the responsibility of the judge to evaluate it in the context of the laws, get clarifications if any (on the facts only) from the respondent and the petitioner and give a fair verdict? I read somewhere that both the parties to litigation know the facts, it is the judge who is on trial. How true. So, if the judge gives a verdict which is not only fair but also seen to be fair, it can be assured that there are no further appeals. This also brings us to the issue of having advocates representing parties and costs. For the simple reason that the judges are legally qualified persons, the need for advocates representing parties should be banned. This is mandatory for providing a level playing field. Fali S Nariman, a reputed Constitutional lawyer, in his book 'India's Legal system: Can it be saved?’, had rightly written that ‘For more years than I can imagine we lawyers have been using our lawyering skills not in a profession but in a game, in which the more skilful (which tends to become also the more costly), will invariably win.’ (I will request my law qualified friends not to take umbrage at this suggestion. The need is to have law qualified people practicing law as doctors practice health care. Nitty-gritties can be worked out) It is seen that quite often petitions are made bulkier by listing cases laws, most of which may not even have any bearing on the issues relevant to the case. In fact I have read at least one advocate, Mathew J Nedumpara, explaining tirelessly that verdict of a particular case apply only to the parties involved in the case (res judicata) and it is the principles on which decisions are made that make for precedents (stare decisis). It cannot be that principles keep changing with every other case. To begin with, case laws, older than 5 years should be declared invalid. Today, with advocates on both sides presenting some facts, some laws and some case laws, it appears that judges can easily toss a coin and decide whom to favor with his verdict. On the subject of principles on which decisions are made, it is interesting to note the flip flops in the court decisions. One of them ended with the establishment of a blasphemous basic structure theory. Here is an interesting report (‘Basic structure of the Constitution revisited’) at http://www.thehindu.com/2007/05/21/stories/2007052103301000.htm. It was followed by the constitution of an unconstitutional Collegium for the appointment of judges. This was done by resorting to a never heard of interpretation of the meaning of a common English word ‘consultation’. That it got entrenched through a series of judgments when the Executive at the Centre was weak cannot be mere coincidence. Coming to costs, there is no reason why this should not be free as rule of law is as important, if not more, than education and health which are practically free in government schools and health care centers. Regarding the conduct of trials and verdict, it is of utmost importance that cases are disposed of on first come first served basis. Of course it will apply only to similar type of cases. So time frames have to be laid down for each category of cases and enforced. Some flexibility can be provided like giving, say, 10 percent extra time for 10 percent cases, on a case by case basis, by a superior court. Any default should be dealt with seriously and severe or repeated default should result in termination of the services of the judge. The need for day to day trials, once charge sheet is submitted, cannot be overemphasized. Not only are the facts fresh in the minds of the parties and witnesses, it is also easy for the judge to correlate them and come to rational and fair conclusions. I have read of the apex court mandating that verdicts should be delivered within 6 months of the conclusion of arguments. But I know of high court judges being elevated to the apex court even when they have failed to deliver judgment for 4 years after final arguments and moved to the higher court without delivering it, leaving the litigant in the lurch. Even at the end of preposterously prolonged trials it can be seen that the verdicts are not seen to be fair. There are many cases where trial courts have sentenced the guilty to death and the apex court exonerating them or reducing the sentence to life imprisonment after the convict has already spent a life term or more as an under trial. With all sentences ordered to be running concurrently the convict is soon out as a free bird to get back to his vocation as a criminal. The other day I was reading a report, ‘US: 54-year-old man rapes a 14-year-old girl multiple times, sentenced to 50 years in jail and physical castration’ (29 April, 2024, https://www.opindia.com/2024/04/usa-louisiana-rape-castration-minor/). I wonder why and under what laws are our courts prescribing that all punishments should run concurrently when the investigating authorities and prosecuting authorities have worked day and night to prove every charge from conspiracy through planning to executing a crime of murder? Incidentally, in the case of a judge who died in an accident the trial court itself had sentenced the guilty to life imprisonment till death. One report is at https://www.dnaindia.com/india/report-dhanbad-judge-murder-court-says-culprits-mustremain- in-jail-till-end-of-life-2976352. Interestingly the report does not mention any motive or previous history of conviction in any crime for those sentenced. Contrast this with the case of murder of a primary school teacher in Kerala in front of his students by a mob and six of the accused being sentenced to death. Even after the High Court upheld the verdict, years later, the apex court acquitted 5 of them and commuted death to life imprisonment for the sixth. Just imagine the plight of those acquitted living with the threat of death for more than a decade. Did the apex court act against the judges who sentenced them to death? Did the court order action against the investigating officers and prosecutors? Did the court order apprehension of the others involved? My study of the performance of our judiciary over the last 25 years has made me doubt not only the competence of our judges but even their integrity. The instances of misuse of power are plenty but the situation is worse now what with 85 percent of the judges in the Supreme Court being kith and kin of former judges or senior judicial officers, as per a list released by National Lawyers’ Campaign for Judicial Transparency and Reforms. Incidentally, the apex court that had illegally trashed the duly enacted National Judicial Appointments Commission Act, had, during the Emergency days, used an amendment to the Constitution (39th amendment to the Constitution, 10 Aug 1975) to exonerate the then Prime Minister Indira Gandi who had been earlier convicted in an electoral malpractice case by the Allahadbad High Court (State of Uttar Pradesh v. Raj Narain, 1975 SCR (3) 333). Imagine the horror of it. A convict allowed to amend the Constitution in her favour and the apex court accepting that amendment to exonerate her. If this is not turning law on its head then what could it be? Of course such cases cannot happen routinely but what about the principle of conviction being based on the laws existing at the time of occurrence? Whether it was a Chief of Army Staff’s date of birth or an employee seeking pension that had been denied to him or the entry of women in Sabarimala, incompetence of the judges is writ large on the verdicts. When the School Leaving Certificate is the accepted proof of date of birth I cannot understand how a court can accept an error in an application form to be authentic and not accept the date in the School Leaving Certificate produced as supporting document. And the court never asked why a Lt General, on the eve of his promotion to a higher office in the same rank, had to sign an undertaking that he was accepting his date of birth in the application as true and not the one in his School Leaving Certificate. The press and visual media went to town stating that the General, then Chief of Army Staff, was selfishly trying to get advantage of one more year in that office. He was even threatened with prosecution for contempt of court when, while answering media persons, he had responded that he did not feel justice had been done to him. If that was in the case of a Chief of Army Staff, which the whole nation was watching eagerly, the cases of lesser mortals can well be imagined. There is this gentleman who served with the Central Government for 18 years and resigned for personal reasons. He was denied pension and all terminal benefits merely because he had resigned. Subsequently, on learning of a Supreme Court order saying that pension is not charity but deferred wages he applied to Central Administrative Tribunal for his entitled pension. The ignoramuses in CAT dismissed his petition saying it was time barred. On appeal, the High Court referred it back to CAT stating that there is no time bar for pay and pension related issues. The case shuttled between the CAT and High Court another 3 times before, against all principles of natural justice, the High Court dismissed the last case, after 6 years, by quoting Rule 26(1) of CCS (P) Rules 1972. As per this rule an employee forfeits all his previous service if he resigns. While this, by itself, is obnoxious Rule 40 of the same CCS Rules provides for payment of pension and gratuity to government servants compulsorily retired from service as a penalty. Wondering how the justice seeker could retain his sanity all through. In contrast is the case of a former acting chief justice of a high court being granted enhanced pension, due to him on attaining 80 years of age, on his attaining 79 years of age itself on the plea that he had entered 80 years then. Weird as this claim was, the court added its own justifications like the profession of a judge being a noble one and pension being a welfare measure etc. (Orders, dated 15/03/2018, of the Gauhati High Court in WP(C) 4224/2016 and upheld by the Supreme Court on 08/07/2019 in SLP (Civil) Diary Number 18133/2019) The judgment, on women’s entry in Sabarimala temple, dated 28 September 2018 in WP (C) No. 373 OF 2006, is another one of its class where four of the five judges of the apex court proved their incompetence in interpreting the provisions of the Constitution. Articles 25 and 26 deal with freedom of religion. 25(2)(b) is restrictive and discriminatory in so far as it provides for opening of only Hindu religious institutions of a public character to all classes and sections of Hindus. It is this discrimination, based on religion, that should have been addressed rather than misinterpreting it as a gender based discrimination because women of a particular age group only are banned from entering the temple. This by any stretch of imagination can only be a reasonable restriction as propounded in the many articles on fundamental rights. In contrast, there is absolute ban on women entering their places of worship in other religions. Worse, as per a report, dated April 13, 2021 (‘Supreme Court junks ‘frivolous’ plea to remove 26 Quran verses’ at https://indianexpress.com/article/india/supreme-courtwaseem- rizwi-plea-removal-of-quran-verses-7270090/ ) the apex court imposed Rs 50,000 as cost on the petitioner, Syed Wasim Rizvi, former chairman of Uttar Pradesh Shia Central Waqf Board who had prayed for regulation of Madrassa education on the ground that children should not be indoctrinated and to ensure steps are taken to avoid literal teaching of verses advocating violence. In the Mangalore air crash, while the high court granted same compensation to all those who died, the apex court revised it, and based it on the income of the victims. One is flabbergasted on what role the passenger’s income has got to do with the compensation when he had bought his tickets at the same price as the rest. One could understand if different compensations were paid based on the different classes of passengers and the fares paid by them. The above examples should suffice to conclude that no common sense, no principles and no rationale apply to our judges and their judgments. No wonder somebody commented that ‘we do not get justice in our courts, what we get in our courts is called justice‘. The important question is whether citizens of a democracy should accept this as a gospel? The politicians are often criticized for attempts to subvert the Constitution but the fact is that the architects of the Constitution themselves had subverted it given that the contents are not in synch with the objectives outlined in the Preamble. This had led to the apex court first declaring, in Berubari Union Case (1960), that the Preamble is not part of the Constitution and cannot be enforced in a court of law and then correcting it after more than a decade in Kesavanada Bharathi (1973) stating that it was part of the Constitution but cannot be amended under Article 368. But then we saw the terms ‘Socialist Secular’ and ‘and integrity’ being inserted in the Preamble on 03 Jan 1977, during the dark age of Emergency from 25 Jun 1975 to 21 Mar 1977. And the courts did nothing about it. We have seen how the judiciary had let down even the armed forces, held by the people as a symbol of national pride along with the national flag and national anthem, by their insane verdict in the date of birth case of the Chief of Army Staff. But that was not the first or last in the series of patently wrong judgments of the apex court affecting soldiers. In what is known as The Rank Pay Case, the armed forces officers had been cheated of their Rank Pay introduced in 1986. But the first petitioner, Major Dhanapalan got relief in early 2000. But the court did not extend justice to similarly placed officers. It forced a large number of officers to pursue cases in different groups, all over the country. It took over a decade before these cases were disposed of but only after denying them the dues of 20 years, from 01 Jan 1986 to 31 Dec 2005. Worse, those who had perpetrated the fraud on the gullible officers were not punished. The injustice should be obvious because it was around the same time that Subroto Roy of Sahara went to jail because he could not refund almost Rs 25000 crores to his investors as directed by the court within a specified period. I doubt if all the investors had approached the court for this relief. (For details see https://en.wikipedia.org/wiki/Sahara_India_Pariwar_investor_fraud_case.) I cannot blame those who ask in subdued tones if any judges were there among the investors. More recently, in the One Rank, One Pension (OROP) case too, the apex court let down the soldiers by turning the definition of OROP- two personnel from the armed forces in the same rank and with the equal length of service should get the same pension irrespective of their dates of retirement and any future enhancement in the rates of pension must be automatically passed on to past pensioners- itself on its head. Consequently, while the anomalies are gross, the case of Major Generals drawing less pension than Brigadiers, who are junior in rank and years of service, had been highlighted in the order itself. But this has only been mitigated, but not corrected, by raising the Major General’s pension to that of the Brigadier. Interestingly, OROP has been in existence for judges, MPs, MLAs bureaucrats and even the Chiefs of the armed forces since long. Only thing is the format has been different. For MPs and MLAs it is minimum pension beginning with one day of service and a regular pension after 5 years of service. Thereafter there is a fixed increment for every additional year of service. For the babus, at the top two levels they have a fixed amount as pay, and pension being 50 percent of that, every retiree, irrespective of his date of retirement gets the same pension. It applies to the Chief of armed forces who hold the rank of General and equivalent and to Lt Generals and equivalents who are Vice Chiefs and Army Commanders. Other Lt Generals who retire in the same rank and service have, obviously, been left out. Another case in which the apex court has failed soldiers is in what is known as the NFU (for Non-functional Financial Upgradation) case. This obnoxious scheme was introduced in 2006 for the IAS and IPS only, only to promotion incompetence but on the specious argument of stagnation for promotion in their services. By this, if any member of the IAS gets promoted anywhere in the country, the financial benefits would automatically be passed on to all the members of the same batch. In a blatantly discriminatory manner, the same benefit would be passed on to the members of the same batch of IPS only after two years. Worse, the members of the other Group A services like IFS, IRS etc were denied it initially. But they got them after approaching the CAT. The ones who were more eligible, if not the only ones who should have been eligible for such a scheme, the armed forces officers, even after getting a favorable verdict from the Armed forces Tribunal in 2016 are still waiting for it. An appeal filed by the Central Government against this verdict has recently been withdrawn. See the table below for the relative comparison of promotions in the armed forces vis a vis the civil services. The armed forces officers are not only lacking in promotion avenues but even the promotions come late. For example, an army officer gets promoted to the rank of Major General, considered equivalent to the Joint Secretary, on completing 26 years of service, whereas the babu gets promoted to Joint Secretary with just 14 years of service. Worse, it is not only promotion avenues that are lacking for armed forces officers but there is attrition also what with the majority of them getting superannuated as Colonels on attaining 54 years of service. The above case has been explained in some detail only to highlight how a case that should have been disposed off in one hearing had dragged on for 9 years and then had to be withdrawn by the appellants. Contrast this with the case of the high court judge who had been given enhanced pension one year before it was due to him. We have already seen how a false concept of Basic Structure of the Constitution and an unconstitutional Collegium has been thrust on the nation by the judges of our apex court. And we had a situation when these judges were almost demanding that the President just sign the appointment letters prepared by the Collegium. Now let me walk through some not so much discussed issues. Firstly, let me begin with the use of the honorific ‘Justice’ by judges of the higher judiciary. Article 124 (1) states that There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. That is the appointment is as judges and the senior most is designated as the Chief Justice. So the correct, and only, permissible use is Mr abc, Chief Justice of India, Supreme Court of India or Ms xyz, Judge, Supreme Court of India. Similar logic applies for judges of the High Court under Article 216 of the Constitution. Interestingly, the judges in the subordinate courts do not use this honorific, though they are also judges as per the Constitution and doing the same job. Justice is what is supposed to be delivered by the judges. That brings us to yet another question: why should a high court judge retire at 62 years of age when the one in the Supreme Court retires only at 65? And why should judges retire at 62 and 65 when the babus, file pushers, retire at 60? Quixotically, the Chiefs of Army, Navy and Air force retire at 62 years of age and the Chief of Defense Staff at 65. As an aside it is important to look at what judging is all about. Is it really a profession that requires rigorous training and exercise? To my mind, it is one of the basic and inherent qualities in every human, nay, living, being. All that our designated judges are required to have is knowledge of the law and a commonsensical approach in applying those to given circumstances. Though we have often heard a quip ‘ignorance of law is not an excuse’ we have never questioned why judges are never taken to task when their judgments are overturned by appellate courts. Article 124(7) states that No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India. Now this is essentially a bar on reemployment of judges, for obvious reasons. Unfortunately, the language is not that obvious. So let us look at the provision for judges of the high courts. Article 220 states that No person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts. Here obviously there is no scope of any ambiguity. In spite of this, apart from the already provided re-employment in various tribunals and quasi judicial bodies, the judges tried to usurp some more by ordering that chief information commissions should be either a retired Chief Justice of a High Court or a judge of the Supreme Court and that cases should be decided by a bench of two members one of whom should the law qualified and preferably a retired high court judge. (Reportedly the only Chief Information Commissioner who had been suspended from that post was M A Khan, a former judge of the Allahabad High Court. He had been suspended on 09 July 2008 by Governor T V Rajeswar Rao for ‘violating norms for recruiting employees in the commission, financial irregularities, mistreating complainants and non-cooperation with colleagues’. He had later committed suicide due to depression.) Interestingly Para 9 of the order in WP(C ) 210/2012, states: The appointment of the judicial members to any of these posts shall be made in consultation with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be. Recollect the term ‘consultation’? Fraudulently and dangerously given to mean as concurrence for justifying the unconstitutional Collegium? Fortunately, almost one year after this order a division bench of the court recalled the order but with different directions. Of those this one is particularly relevant: ‘that the Committees under Sections 12(3) and 15(3) of the Act while making recommendations to the President or to the Governor, as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended, the facts to indicate his eminence in public life, his knowledge in the particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made.’ Now just think of applying the same direction in the case of appointment of judges to the higher judiciary. The bigotry should be obvious. I am for all tribunals and quasi judicial bodies being treated as specialist courts and should have a common mode of recruitment. And it should not be left to be filled by retired judges or bureaucrats. My experiences with these quasi judicial bodies have convinced me that they are worse than fly by night operators and a waste of the tax payers’ money. A detailed study about the Information Commissions has been done in three parts of this serious. A Parliamentary Standing Committee on the Ministry of Law and Justice, then headed by Rajya Sabha member E.M.S Natchiappan, had commented that 'Judges appointing judges is bad enough in itself; judges judging judges is worse.' A former CJI had admitted that 20 percent judges were corrupt. A Transparency International Report revealed that the judiciary and police were the most corrupt institutions in India. Adv Prashant Bhushan exposed that 8 CJIs were corrupt and though contempt of court action was initiated his claim that corruption was used in the wider sense of the term got him reprieve. As if such corruption was legal and ethical. But, in spite of such revelations and admissions, the cause of concern is that nothing has been done to control these crimes. But there are even more serious crimes for which ordinary citizens would have been sent to the coolers for life but judges have got away because of brothers in black cloak judging them. Mysore sex scandal involving judges and women advocates and illegal land allotment scam, involving judges, both in Karnataka, cash at door step scam involving judges of Punjab and Haryana High Court, P D DInakaran case, involving multiple charges, are a few that easily comes to mind. While the details can be got by searching on the internet here are three links that I found very interesting: ➢ https://www.indiatoday.in/india/story/law-intern-sexual-harrassement-judiciarystares- at-morality-crisis-176475-2014-01-11 ➢ https://www.legalserviceindia.com/legal/article-5419-a-sneak-peek-into-thecorrupted- indian-judiciary.html and ➢ a document corruption-in-indian-judiciary_1511777721 that can be downloaded from https://wwjmrd.com. Law Commission of India, then headed by a former Supreme Court judge AR Lakshmana, had, in its Report No 230 of Aug 2009, dwelt on the issue of judicial reforms. It had admitted to the failure of the Collegium and the need to revert to the old system, the need for cutting short of vacations by 10-15 days, increasing the working hours by half an hour per day, better use of court time etc. Even these symbolic changes have not been implemented till date. Unfortunately, it had also harped on the judge to population ratio which is a farce. What matters is the judge to docket ratio. This, as per data presented by K T S Tulsi, a senior advocate of the Supreme Court in 2004, was highly in favor of the judges in India. They were handling only less than one third the cases being dealt with by their counterparts in the US of A. People who quote this false reason to cover up their incompetence and other shortcomings should not be eligible, not only for holding the offices of judges but even of any other public office. Things have spiraled down so badly that we have witnessed Supreme Court judges (verbally) convicting victims, not only without trial but without even knowing the facts, as it happened in Nupur Sharma Case. More recently we had another judge threatening to tear apart an accused in a contempt of court case. Reading of such instances one is tempted to ask: arrogance, is your other name a judge? To conclude this part, here are two quotes: Justice is an intrinsic human need. We suffer much privation but we cannot suffer being wronged. Absence of justice, we must not forget, is one of the causes of crime. ('Needed high speed legal redressal'-Aravind Kumar, Jurist and lawyer, Pioneer, Kochi,01 Aug 2006) The judicial system of the country, far from being an instrument for protecting the rights of the weak and oppressed, has become an instrument of harassment of the common people of the country. (People's Convention of Judicial Reforms and Accountability held at ISI, New Delhi on 10-11 Mar 2007; http://www.judicialreforms.org/) P M Ravindran/ raviforjustice@gmail.com / 12 Jun 2024

SOME MEMORIES OF SIKKIM – CIRCA 1965

SOME MEMORIES OF SIKKIM – CIRCA 1965 I joined the signal regiment in November 1965 as a young second lieutenant after the YO’s course at the School of Signals, Mhow. The divisional HQ was then at Mile Stone 9 on the Road Gangtok Nathu La. It had been moved up there recently from Gangtok by the GOC, Maj Gen Sagat Singh, soon after the incident when the Chinese gave an ultimatum that we should vacate Nathu La resulting in orders from the Corp HQ to vacate the pass, which Sagat refused. When the Chinese became belligerent and opened fire, we also opened up with guns and mortars, though there was a restriction imposed by Corps HQ on the use of artillery. Thanks to Sagat’s obduracy, Nathu La was not vacated, unlike the neighbouring pass at Jelep La, held by the neighbouring division. This played a crucial role in the Nathu La skirmish, which occurred two years later. Coming back to MS 9, the divisional HQ and signal regiment were located on a hill slope next to the road. Almost everyone was in tents or tin sheds. There were no bukharies then and it was terribly cold at night. There was no snow clothing and we had to manage with OG jerseys. There were no sleeping bags and at night we had to use three or four blankets to cover ourselves. The officers’ mess was in a tin roofed hut, which was kept warm by sigries. Naturally, we tried to delay the dinner for as long as possible, to enjoy their warmth before retiring to our tents. I was told by the other officers that I should grin and bear it, as the area was in high altitude and this would mean some extra money. How this happened is another story. On the road, just below our location there was once a stone which had the height written as 8,500 feet. Soon after the HQ had moved, the GOC noticed some tall aerials on the hill top right above us. When he enquired from the Commander Signals, Lt Col PK Roy Chowdhury, he was told that these are radio relay aerials. These had to be located at that height so that we could communicate with Gangtok, from where another link enabled us to establish communications with the Corps HQ at Siliguri. Sagat asked his staff to check the height of the location of the radio relay detachment on the hill top. It was just above 9,000 feet. Everyone was thrilled to hear this. Troops located at 9,000 feet or above were entitled to high altitude allowance. Sagat ordered that the stone pillar on the road showing the altitude as 8,500 feet should be uprooted and thrown down in the river. This was promptly done. He gave instructions that the location of the divisional HQ and signal regiment would now be treated as in high altitude and everyone could claim high altitude allowance. When some officers from his staff expressed the fear that this might invite objections from the local audit officer (LAO) during his next visit, Sagat told them not to worry. The LAO should be accommodated in the tent along with the detachment manning the radio relay terminal on the hill top, instead of the JCOs mess. Since the radio relay detachment was part of the divisional HQ, the audit objections, if any, would be set aside. The 2ic was Major George Paisley while the OC 1 Company was Major SK ‘Jimmy’ Dovedy from the 1st JSW course. Interestingly, apart from Maj Dovedy and me, there was no other officer from NDA in the unit, which was overflowing with captains and subalterns. Most of them were ECOs, commissioned during the Emergency declared after the 1962 war with China. There were so many officers that there was a separate squad for officers during morning PT. There was no PT ground and all we could do was run on the road followed by PT in the open areas in front of the signal centre and office complex.

ADAPTING TO CHANGE - WHY DOES THE ARMY ALWAYS LAG BEHIND?

ADAPTING TO CHANGE - WHY DOES THE ARMY ALWAYS LAG BEHIND? By Maj Gen VK Singh Change is part of life. With time rules and trends change in every walk of life. In almost all cases, these changes are for the better, and make our lives easier and more comfortable. Fifty years ago, the only way to communicate with family members and friends was the letter sent by post or telegram, unless one had a telephone. Today, even those living in remote areas have mobile phones. Very few people had cameras and one had to rely on professional photographers during important occasions such as weddings and family gatherings. The only medium to get news of what is happening in the World was the radio and newspaper, which only the privileged few could afford. Most of the rural population did not have access to banks and had to keep their savings in cash or gold ornaments. Even in cities and towns, depositing and withdrawing money was a tedious process. ATMs and online banking changed all this. Earlier, when a migrant worker wanted to send money to his family in the village, he had to send a money order, which took days if not weeks to reach it destinations. Today the migrant labourer transfers money to his wife online and it reaches her instantly. Another change concerns the identity of the citizens. The only people who had identity cards were members of the Armed Forces, Police and Government departments. A person without a job had virtually no identity. One could vote, provided his name was in the electoral rolls. With the passage of time the use of identity cards has grown exponentially. Fifty years ago, the only card an Armed Forces veteran had was the identity card issued by the Service HQ or Records Office. These granted him access to almost every place including military establishments, offices, hospitals, canteens and so on. These were valid for life and did not have to be renewed. Of course, if one owned a weapon or a car, one had to get a licence for its use, which needed to be renewed from time to time. The same applied to passports for foreign travel. When I retired twenty years ago, my identity card was withdrawn and I was issued a Retired Officers identity card. A few years back this card was withdrawn and I was issued a Veterans Card. With time the number of cards kept increasing. Today a veteran officer has literally dozens of cards. There is the veteran card, the ECHS card, the canteen card, the DSOI membership card, the golf course membership card, the PAN card, the Aadhaar card, the voter card, the driving licence, and so on. In addition, you have debit cards for withdrawing cask from your bank account and credit cards for purchasing items in shops or online. In recent years some more have been added such as the ESM identity card from the Zila Sainik Board. The plethora of cards have created a number of problems, with regard to their safe custody and renewal. As one grows older, keeping track of where each card is kept and when it is due for renewal becomes a hassle. The issue that troubles elderly veterans the most is the process of renewal. Almost all other agencies, government and private, have switched over to online renewal. This applies even to the life certificate one had to submit for his pension from the bank or annuity. Earlier, one had to submit these certificates in writing after getting them countersigned by a gazetted officer or the bank manager. Since the last couple of years, ICICI Prulife which earlier insisted on a physical life certificate now does it on line. After you log in the camera of your phone or laptop takes the photograph and the process is complete. For some reason, the Armed Forces have still not switched on to the online mode. The ECHS card has undergone two changes. Each time, one had to collect it in person. The Veteran card also had to be collected personally from Station HQ. The Zila Sainik Board also insists that you must visit their office to collect the ESM card identity. One might ask, once you have a veteran card, why should you need an ESM card to prove your identity as an ex-serviceman? Credit and debit cards for banks are also renewable. But the new ones are sent by post. If the banks can do it what prevents our military establishments such as Station HQ, ECHS and Zila Sainik Boards from doing the same? Consider the plight of elderly and disabled veterans who find it difficult to make personal visits. Some living in remote villages have to spend a lot of time and money to travel to these establishments just to collect a card. Can we not make their lives somewhat easier by adapting to change and adopting new practices being followed by others?

RANK, APPOINTMENT & DESIGNATION

RANK, APPOINTMENT & DESIGNATION By Maj Gen VK Singh In recent years, there has been a lot of debate on the correct manner of addressing officers of the Armed Forces who have retired from service. Some recommend that the word ‘Retired’ or abbreviation ‘Retd’ should be used after the rank e.g. Colonel (Retd) AB Singh. Others feel that the correct method is to write ‘Retd’ after the name e.g. Colonel AB Singh (Retd). Army HQ tried to remove the confusion and issued a circular on 21 July 2021 clarifying that the latter option is correct, and the name should be written as Colonel AB Singh (Retd). Unfortunately, this has only confounded the confusion. Army officers are granted commissions that are signed personally by the President of India. Under British rule, officers commissioned in the Indian Army before 1935 were known as Kings Commissioned Indian Officers (KCIOs). Their commissions were signed by the King or Queen of England. Most of these officers were granted commissions after undergoing training at Sandhurst or Woolwich in the UK, except for a few like KM Cariappa who was trained at the Daly Cadet College, Indore. After being commissioned, Army officers were earlier granted the rank of Second Lieutenant. This rank has now been abolished in India and officers are being commissioned in the rank of Lieutenant, which was earlier granted after two years’ service as a Second Lieutenant. Thereafter officers continue to get promotions until they retire or are released. The highest rank in the Army is that of General, which is held by the Chief of Army Staff. A few who are exceptionally deserving are promoted from General to Field Marshal, who never retires. In India only two officers have reached the rank of Field Marshal – KM Cariappa and SHFJ Manekshaw. In India, Army officers are entitled to retain their rank even after retirement, as per privileges given under the Constitution which was adopted in 1950, when India became a Republic. However, the practice of military ranks being retained after retirement was in vogue earlier also under British rule. This tradition is followed by most countries, including the UK and the USA. The confusion about the manner of writing ranks after retirement was not there in the initial years after Independence. Old timers will recall that KCIOs such as Cariappa, Nathu Singh, Maharaj Rajendra Sinhji, Thimayya, Thorat etc. did not use the word ‘retired’ after hanging their uniforms. I am not sure when and why this practice started. Lately the word retired has been replaced by veteran, following the custom in most countries. In fact, the Retired Officers Identity Card issued to officers after retirement has now been replaced by the Indian Army Veteran Card, which has the officer’s photograph in uniform as well as civil dress. Since this card is also issued by Army HQ, I wonder if there was a need for the circular issued on 21 July 2021. According to article 18 of the Constitution ‘No title, not being a military or academic distinction, shall be conferred by the State’. Titles are used before names, in formal correspondence as well as on invitation cards and during normal conversation. Many professions carry titles, either by usage or as a result of a professional or academic qualification. Medical practitioners including dentists are universally referred to as doctors, as are those with post graduate degrees such as Ph.D. Judges of the Supreme Court and High Court also carry their titles, even after they retire, though this is from usage and custom rather than any written rule. Similarly, many people who have held the post of ambassador are now using this as a prefix, which is technically incorrect. A person holds the appointment of ambassador in a foreign country for a few years. It is not a title that should be used for life. In smaller countries, the position if often held by a relatively junior member of the Indian Foreign Service. Sometimes the appointment of ambassador is held by a person who is not from the Indian Foreign Service. S Radhakrishnan, VK Krishna Menon, MC Chagla, Karan Singh, Nani Palkiwala and General KM Cariappa have held the appointments of Ambassador or High Commissioner. None of them was from the Indian Foreign Service. And none of them used the prefix Ambassador with their names. As regards the All India Services such as the IAS and IPS, very few of them use these abbreviations as a suffix after their names. Some use the designation or last appointment held. So you may find names such as AB Singh, IAS; AB Singh, DIG, or AB Singh, DG BSF and so on. These are all incorrect. The day an IAS or IPS officer retires, he ceases to be a member of the service. Of course, there is nothing wrong in mentioning his last appointment, e.g. former Cabinet secretary; ex-DGP Haryana and so on. Again, it is a matter of individual choice and if someone wants to add IAS or IPS after his name, it is for the particular service or their association to take a call. Coming back to the question of Army ranks, my view is that it is a matter of personal choice. Once an officer has retired, it is entirely up to him how he writes his name. He can write only his name or his rank and name. Considering the ethos of the Army and the pride most of us feel, no one would like to hide his rank. If he prefers to write Retd or Veteran after his name, so be it. A name is a precious possession and an heirloom given to us by our parents. The rank is sacrosanct symbolising the nation’s trust. Nothing else is important. Posted by veekay at 9:31 AM No comments: Sunday, June 5, 2022 ADAPTING TO CHANGE - WHY DOES THE ARMY ALWAYS LAG BEHIND?

Corrupting India's Military History A Dangerous Trend

 

Corrupting India's Military History

A Dangerous Trend

Major General VK Singh (Retd)^@

 

Abstract

The article brings out that the trend of writing incorrect accounts of military actions, to glorify, portray military history incorrectly. Operations at Nathu La/Cho La in 1967 have been narrated to make the point. It states that it is important to portray failures, or less than perfect conduct of operations, so that lessons can be learnt and mistakes made in conduct of an operation are avoided in the future. Unfortunately, the military and military historians today have different views and failure in battle seems to carry with it a stigma and guilt, which is totally unwarranted. The article concludes that if handled correctly, even failures and lost battles can be used to glorify and motivate and yet we can learn constructive lessons from them.

 

Introduction

This article aims to highlight the trend of omission, distortion, and obfuscation of facts in records such as unit war diaries and regimental histories which are the basic documents referred

to by military historians. This phenomenon is rarely encountered in the documents pertaining to World War I and II, and even earlier. However, it is increasingly being noticed in the post-Independence period in the Indian Army'. Examples of such distortion of records are found in many tactical and operational level operations that the Indian Army was involved in after 1947. These may have been done in good faith to safeguard the honour of a person, unit, or country or because in the fog of war events get distorted. However, this distortion obfuscates the correct picture in official history and does not enable lessons to be learnt to take better decisions or do

 

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@Major General VK Singh (Retd) was commissioned into the Corps of Signals of the Indian Army on 27 June 1965. He retired in 2002. A keen writer since his younger days, in later years he took to professional writing and now writes in newspapers and professional journals on defence, intelligence, and security related issues. He has authored six books.

 

Journal of the United Service Institution of India, Vol. CLI, No. 625, July-September 2021.

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operations in a better manner the next time. To highlight the problem, the Nathu La — Cho La operations of 1967 have been chosen as a case study. This operation has once again come into the limelight in recent years. This trend is not limited to the Indian Army alone, or even to only the military; there is even a formal term for this — "historical negationism"².

 

 

The Accounts of the 1967 Skirmishes

 

The Nathu La Skirmish. The skirmish at Nathu La took place in September 1967. This was the first time that the Indian Army gave the Chinese a 'bloody nose'. The story has been narrated in several books including regimental histories and biographies of Lt Gen Sagat Singh³, who was commanding the division in Sikkim when the operation was conducted. In addition, several articles have been published in numerous journals written mostly by officers who were present or took part in the operation. Two recent events have brought the Nathu La skirmish in the limelight again. One is the publication of a book titled 'Watershed 1967 - India's Forgotten Victory over China" in 2020, written by Probal DasGupta⁴. The second is the episode concerning the Nathula and Chola battles of 1967 which was broadcast on TV in Tales of Valour on 09 and 10 Jan 2021 on the Times Now. There was also a Bollywood movie called 'Paltan' (battalion) which came out in 2018 and covered the operations at Nathu La. Sadly, these narrations have been less than truthful in recounting the events of the conflict.

 

At first glance, 'Watershed 1967 - India's Forgotten Victory over China' appears to be dealing with an important event in India's military history. Unfortunately, the book has several errors in the correlation of events and facts. A review of the book by this author has been published in the Journal of the United Service Institution of India, January — March 2021 and could be seen for further details.⁵

 

The most glaring lacuna in the book is the distortion of facts relating to 2 Grenadiers. In this author's knowledge, the only authentic unclassified version of the battle is the diary of Second Lieutenant (2/Lt) (later Colonel) NC Gupta, which gives a day-by-day account of the occurrences from 11-14 Sep 1967.⁶ Its authenticity is sound because it was written daily as the events occurred and not in hindsight after 40-50 years, like this book and some articles written

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by a few others. The diary brings out many lesser-known facts including instances of apparent cowardice, especially the vacation of South Shoulder at a critical juncture by a few soldiers of 2nd Grenadiers led by 2/Lt. Attar Singh. An account of this episode has been covered in detail in the articles The Skirmish at Nathula (1967)' published in the Indian Military Review in Aug 2018 and 'Remembering the War We Forgot 51 years ago — How India Gave China a Bloody Nose' by Vandana Menon and Nayanika Chatterjee in The Print on 01 Oct 2018.

 

The regimental history of The Grenadiers, titled 'The Grenadiers — A Tradition of Valour', was written by Colonel RD Palsokar in 1980. The book gives a different narrative. On page 365, the author writes:

"At one stage it appeared that the force fighting from the

South Shoulder was wiped out as it was the main target

of the Chinese. The troops could not hold it and had to

fall back. When the Chinese fire died down, they once

again occupied the feature. The South Shoulder would

have remained unoccupied had 2nd Lieutenant Attar Singh

 not been there. His personal example inspired the men to

stay fast."

 

Colonel RD Palsokar (Guards) is a well-known military historian who has penned many regimental histories and biographies. It is probable that the primary source for his use were the inputs given to him by The Grenadier Regiment from the accounts submitted by the unit.

 

Another example of this historical negationism syndrome is the article titled ‘The Nathu La skirmish: When Chinese Were Given a Bloody Nose', by Major General Sheru Thapliyal, in the `Force' magazine in 2004 and reprinted in the CLAWS website in 2011⁷. He writes:

 

"2 Grenadiers were initially shaken up due to the loss of

Captain Dagar and injury to their CO but found their man of

the moment in Lieutenant Attar Singh who went round from

trench to trench to rally the troops and was later promoted as

Captain on the spot."

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A short resume describing the events relating to South Shoulder on 11 Sep, as described in Gupta's diary, has been published in the Indian Military Review. It is reproduced below:

 

"During the first day's action, there was a loss of morale in 2 Grenadiers when troops occupying the South Shoulder vacated their positions. This became evident after breakdown of communications. Finding no response from the post on radio and observing about a dozen troops running down the slopes of South Shoulder minus their helmets, packs and rifles, the Brigade Commander asked his Signals officer, 2/Lt NC Gupta to go up to South Shoulder with a spare radio set. On reaching South Shoulder at around 10 am, Gupta found the post abandoned and informed Brigadier Bakshi, who asked him to hold the post until reinforcements reached. About an hour later, Brigadier Bakshi spotted six soldiers sitting behind a huge rock around 100 metre down South Shoulder and asked Gupta to investigate. On reaching the spot, Gupta found that they were from 2 Grenadiers, including 2/Lt Attar Singh who was in command of the post at South Shoulder. Their radio set had been switched off. Gupta made him speak to the Brigade Commander who gave him a mouthful and ordered them to return to the post, accompanied by Gupta. At about 12 pm, Gupta discerned some movement in one of the bodies lying next to the fence barely 10 metre from the Chinese . Taking dvantage of the fog, he went ahead to investigate. He discovered that it was a badly wounded Major Bishan Singh, 'Tiger Nathula, who had been injured in the initial firing. Bishan was a 6 foot tall jat while Gupta was a diminutive five foot three, almost half his weight. With great difficulty Gupta managed to drag Bishan into our defences and made him speak to the Brigade Commander. Bakshi ordered Gupta to evacuate him using four men from 2 Grenadiers while he stayed on with the post commander and one Havildar."

 

From the words in the diary, Attar Singh was not trying to rally the troops but had abandoned the post along with his men. More than 30 soldiers were later court martialled for cowardice. Surprisingly, Attar Singh was not among them.

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The story of 2 Grenadiers would not be complete without relating the episode of the missing pages of Gupta's diary. It is given below in his own words:

 

"After the end of the event, a couple of officers of the brigade were asked to submit their versions of the battle to the brigade commander. Since I was in the habit of maintaining a daily diary since my NDA days, I had been maintaining the account of the activities leading to it and of the events of 11 Sept and beyond. I, therefore, submitted my account in a normal fauji file cover. The file had:

 

• Seven pages of important events leading to 11 Sept.

• Nine pages of events of 11 Sept.

• Ten pages of events from 11 Sept evening to cease fire.

 

After about a month, the file was returned to me but I did not bother to check if all pages had been returned. Like a good soldier, I carried it with me on all my postings and even after retirement in 1992. Around the early twenties, Major General VK Singh (he was Adjutant of 17 MDSR in 1967) was writing part three of the history of the Corps of Signals. He approached me for some gen on the operations. I decided to hand him over this file. Out of sheer curiosity to re-live the events, I started reading it and to my horror found ten pages missing. These were the most critical pages dealing with the events of 11 Sept.

 

I informed this to Gen VK who told me to try and remember the events and write them. I did this and gave him the file that contained the events leading to 11 Sept and events after 11 Sept in original. The events of 11 Sept were written on white paper and filed accordingly. I also made an endorsement on the first page of the events post 11 Sept that "Nine pages containing details of 11 Sept are missing".

 

In July 2016, Mr Vijay Dagar, nephew of Captain PS Dagar met me at Delhi where I had come from Australia for my knee operation. After the operation on 10 Aug

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Corrupting India's Military History — A Dangerous Trend          327

 

2016, I went to Captain Dagar Museum in Najafgarh and presented this file to Mr Vijay Dagar and told him about the missing pages. To my utter shock, he produced those nine pages in original and the file become one as it was when handed to the Brigade HQ. This is a combine of destiny and a miracle waiting to happen. Mr Vijay Dagar found these pages with 2nd Grenadiers and was able to take them. Page 1 of these nine pages has an endorsement in red ink in commander's own hand "2/Lt Gupta's Battle Account". In June 2019, all the pages were laminated and then presented in original toits rightful owners — The Nathu La Brigade."

 

The Cho La Skirmish. The missing pages from Gupta's diary point to the disturbing trend already mentioned — the distortion of military records by units. Similar discrepancies were noticed in the records of the two battalions that were involved in the skirmish at Cho La that occurred about two weeks after the skirmish at Nathu La. These were 10 JAK Rifles and 7/11 Gorkha Rifles. The regimental histories available are 'The Path of Glory: Exploits ofthe 11 Gorkha Rifles' written by Gautam Sharma and the 'Soldiers of the Sun and Snow' published by the Jammu and Kashmir Rifles Regimental Centre at Jabalpur.

 

Cho La, located to the northwest of Nathu La, was held by 10 JAK Rifles which was under the command of Lieutenant Colonel Mahatam Singh. During the last week of Sep 1967, the battalion was being relieved by 7/11 Gorkha Rifles. The area was under 63 Mountain Brigade under the command of Brigadier Kundan Singh. According to the relief plan, the changeover was to take effect from 01 Oct 1967. The raising day of 10 JAK Rifles was on the

same date and after briefing Lieutenant Colonel KB Joshi, CO 7/11 Gorkha Rifles, Lieutenant. Colonel Mahatam Singh had left on 30 Sep to conduct the Havan at the Battalion HQ at Changgu Lake next morning.

 

On the morning of 01 Oct, there was a scuffle at Point 15450 which had been handed over to the Gorkhas on the previous day. According to 10 JAK Rifles, the new post commander was Second Lieutenant Rana of 7/11 Gorkha Rifles. (According to the regimentalhistory of 11 Gorkha Rifles, Point 15450 was held by Lieutenant Rathore.) There was a boulder at the post and Chinese and Indian sentries usually stood on opposite sides. Since the Gorkhas were new

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to the post, the Chinese staked claim to the boulder, leading to heated argument between the two post commanders. During the argument, the Gorkha JCO rested his right foot on the boulder. The Chinese kicked his foot away. The JCO then put his foot back on the boulder and challenged his Chinese counterpart. The Chinese soldier bayoneted the Gorkha JCO injuring him in the arm. The Gorkhas retaliated by cutting off the arm of the Chinese with a kukri. The Chinese opened up with all they had, with the Indians responding in like fashion. The Chinese finally captured the post forcing the Gorkhas to withdraw.

 

Brigadier Kundan Singh, who was also officiating as the divisional commander, could not contact Lieutenant Colonel Joshi, CO 7/11 Gorkha Rifles, who had gone for a morning walk. Brigadier Kundan Singh then tried to contact Major Nair, the officiating CO of 10 JAK Rifles, but there was no answer from his telephone. Major SRR Aiyengar, the Brigade signal officer, told his B-1 operator, L/Nk Moga Singh, to take the radio set to Major Nair's bunker. When Moga Singh reached there, he found the telephone ringing repeatedly and the officer in a state of shock. Finally, Brigadier Kundan Singh was able to speak to Major Nair. After

giving him a piece of his mind, he ordered Nair to proceed to Cho La Post.

 

Brigadier Kundan Singh also ordered the rest of 7/11 Gorkha Rifles to move up from Tamze. He himself moved up to Twin Huts, to see things for himself. Joshi was missing and everyone thought that he has been killed. At 1700 hours, Joshi reached Twin Huts where he met Brigadier Kundan Singh and requested permission to recapture Point 15450, which was granted. According to the Gorkhas, the attack was launched next morning and the position was re-occupied by them, the Chinese having vacated it during the night. The battalion was awarded two Vir Chakras during the incident.

 

Meanwhile, Lieutenant Colonel Mahatam Singh, CO 10 JAK Rifles, who had been informed about the firing, immediately left the Battalion HQ for the road head at Tamze, from where he started walking up reaching Saddle at 1230 hours. He assumed command

and told Brigadier Kundan Singh that he would recapture Point 15450. He ordered Major Subhas Dogra, who had just handed over the post to the Gorkhas, to recapture it. Dogra

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Corrupting India's Military History — A Dangerous Trend                              329

 

Immediately proceeded with his men towards Point 15450. They found that the Chinese had withdrawn. The post was re-occupied at 1600 hours without firing a shot or a single casualty. In addition to the CO who was awarded the Maha Vir Chakra (MVC), the battalion won three

Vir Chakras.

 

As can been seen, there are several discrepancies in the records of the two units. According to the Gorkhas, point 15450 was held by Lieutenant Rathore while 10 JAK Rifles claim to havehanded over the post to Second Lieutenant Rana of 7/11 Gorkha Rifles. Both units, viz. 7/11 Gorkha Rifles and 10 JAK Rifles, claim to have recaptured Point 15450 which, in fact, had already been vacated by the Chinese. Compared to the skirmish at Nathu La which lasted 5 days and resulted in many casualties, the oneat Cho La was relatively minor lasting just a day. Though this is not mentioned in their regimental history, Major KG Nair of 10 JAK Rifles was later court martialled.

 

Conclusion

Most regimental histories of the post-Independence period tend to glorify the actions of battalions as well as individuals. Hence, successes are highlighted but failures rarely mentioned. In battle, cases of units fighting to the last man are matched by instances of units breaking up and examples of audacious commanders by specimens of indecisive leaders. Not surprisingly, some earn medals and promotions while others are sacked. Like in any two sided

match, the odds of winning and losing in battle are equal and one would expect that the performance of units and commanders would conform to this pattern. The military profession has always placed a greater premium on valour, rather than victory. This is especially true in India, where the most famous military leaders — Porus, Prithvi Raj Chauhan, Rana Pratap, and Rani Laxmi Bai — lost their battles. Yet, their stories are part of legend and have acted as an inspiration to generations of Indians. Unfortunately, military historians today have different views and failure in battle seems to carry with it a stigma and guilt, which is totally unwarranted. Today, a misplaced sense of honour and `izzat’ impels units to hide mistakes and failures and magnify achievements. If not corrected, this may seriously impinge on the integrity of post-Independence military history of India.

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Endnotes

^1. The term 'Army' can be read by the reader to encompass all armed forces of the Union.

 

² Historical negationism, also called denialism, is falsification or distortion of the historical record. It should not be conflated with historical revisionism, a broader term that extends to newly evidenced, fairly reasoned academic reinterpretations of history. https://www.bing.com/

search?q=historical+negationism+&qs=n&form=QBRE&sp=-1&pq = historical+negationism +&sc=4-23&sk=&cvid=991856EE2F 9640EEBA 8279 F81986AC3F

 

3 A Talent for War: The Military Biography of Lt Gen Sagat Singh by Randhir Singh is one such book. This author's book Leadership in the Indian Army: Biographies of Twelve Soldiers also covers Lt Gen Sagat Singh.

 

⁴ Watershed 1967 — India's Forgotten Victory over China. By Probal DasGupta; Publisher: Juggernaut Books, New Delhi (April 2020), Pages 208; Price Rs 390/-, ISBN: 978-93-53450-93-9 (Paperback)

 

⁵ https://usiofindia.org/publication/usi-journal/reviews-of-recent-books-12/?sf_paged=2

 

⁶ For excerpts of the diary, see Veekay's History Book, Nathu La –the True Story at http://veekay-militaryhistory.blogspot.com/2013/04/nathula-1967-real-story.html

 

⁷ "The Nathu La skirmish: When Chinese Were Given a Bloody Nose" by Major General Sheru Thapliyal. Accessed Aug 24, 2021 from https://archive.claws. in/595/the-nathu-la-skirmish-when-chinese-were-given-a-bloody-nose-sheru-thapliyal.html