Disclaimer: The dispute between Army Chief Gen. V.K. Singh and the GOI, on his date of birth, is a legal matter. I am not a lawyer. This post is thus less about law and more about kite flying!
Facts of case
Now that the disclaimer is out of the way, let’s get to the crux of the issue. In brief, COAS Gen V.K. Singh’s case was that the only mistake he ever made was an innocuous one – at the time of filling his NDA form he entered an erroneous DOB. Instead of 1951 he mentioned 1950. However, at every conceivable subsequent occasion, he made an effort to get it corrected. So much so, that between 1971 (when he was commissioned in the Army) and 2006, (when he was promoted to Lt. Gen rank) this issue never arose since he believed it was settled. It was only in 2006 that the issue rose afresh and all written undertakings he gave later (total three) to abide by 1950 DOB were taken under duress.
It was basis these “facts” that Gen Singh persisted in his efforts and went as far as the SC. He had all possible documents, hitherto considered sacrosanct in determining DOB – birth certificate, matriculation certificate, Passport, etc – in his favor. The Supreme Court opined on 10th Feb – and opined that Gen Singh basically had no case.
I try and understand why the SC so ruled.
Implications of SC judgment
Consider for a moment the implications of the ruling: the SC has ruled that if you fill a wrong DOB, and the system takes time in correcting it (as most Indian systems do), then irrespective of any documentation to the contrary, the erroneous DOB will stand. Infact, the SC has set a precedent where backing up your claims on DOB with documentary proof may not be necessary if you can manipulate the system to lie low for a few years (2-3 years as per most service rules during which DOB can be changed). So theoretically, enterprising people in Bihar, for example, could enter their DOB say 5 years lower than what it actually is, and with connivance of officers concerned, render any documentation to the contrary as irrelevant. 5 years of extra service gained!
Not only this, the SC has opened another box (Pandora’s if you like) – arguably a person could now have two DOB’s – one for service matters and one the real DOB. Yes, DOB is not a matter of opinion but a FACT, but SC has said that two versions of the same fact could conceivably exist. It’s like saying 2+2 could have two different answers depending on context!
Before this SC ruling, every court in India, from HC to SC itself have ruled that birth certificate and / or matriculation certificate ARE the only legal documents to be relied upon in determining a person’s DOB. In this case, the SC has chosen to overlook them. And set a dangerous precedent.
The question is why? Why has the SC taken a stance which flies in face of logic, visibly looks like a judgment against the merits of the case? Why was the SC risking ruling in a case against settled principles of law, going even to the extent of inventing such concepts as “at threshold” etc?
Why did the SC so rule? Civil – military relations
In TV debates and in print articles a majority of retired military men have backed up Gen Singh in his fight. A fair number of them, though, have also opposed his move, calling it personal battle etc. However, I have not seen even one retired civil officer or bureaucrat backing up Gen Singh’s case. Each and every retired civilian officer who appeared in the debate, on TV or in print, vehemently opposed Gen Singh dragging this case this far. This I argue is not incidental. It is at the crux of the issue – civil military relations.
Consider the region in and around India and the relationship between civilians and military. While we naturally focus on Pakistan and how the military has wrecked the democracy there, consider other countries in the region. Nepal – where Maoists / military have made a mess of democracy ; Bhutan – where the King derives his power from the military he commands ; Bangladesh – a country with history of coups, one failed as recently as a fortnight back ; Myanmar – ruled by a military junta for three decades ; Sri Lanka – excesses of military in LTTE phase, still considerable say in power ; Maldives – a coup in progress even as you read this. That makes up the entire SAARC.
But let’s look a little further and beyond: the Middle East – most, if not all countries are ruled by despots there and the military serves as their private protection force rather than as national defense force. Be it Iran or Saudi Arabia, Syria or Egypt – no ruler in any of the countries can survive if he does not have military on his side. Infact, regimes change when military changes side. In the much famous Egyptian revolution last year, Hosni Mubarak only quit when the military deserted him and not because of protests alone ; China – though not a classical military dictatorship, but the head of PLA is an important member of the ruling decision making body, even in matters of civil policy.
Look around and it is almost surreal – there is not one country within sight of India (Japan in East and Israel in West are the nearest) who have such a classical distinction, as in India, between the civil rulers and the men in uniform. In every other country of consequence in and around us (leaving aside city states like Singapore in SE Asia), the military either plays a very important role in civil domestic matters (as in China) or a direct role in all civil matters (as in Pakistan). What is the norm in Europe and US is such a glaring exception in our part of the world.
Now under these circumstances if our civilian rulers, and this includes the much maligned bureaucracy, are paranoid about maintaining civilian supremacy, can we really fault them?
If the SC had ruled in favor of Gen Singh, a precedent would have been set where the Chief of Army could defy the government of the day and still stand. Thus emboldened, maybe not Gen Singh himself, but a future Chief could have tried to broaden the envelope – defy the government on some other issue and hope to stand, because a precedent had been set. Maybe a future chief would defy the government on a more substantiative issue with far greater implications. Would the SC have liked to set such a precedent and set to peril, the path of civilian supremacy?
But when we say civilian supremacy, who do we mean? Do we mean only the elected politicians (as commonly understood), or also the bureaucrats (as rued by men in uniform)? Or do we also include the SC in the concept of civilian supremacy? Is not the SC, in all its majesty, as the final word in most matters, at the very top of the civilian hierarchy? Consider – in the Lokpal debate although there were some apprehensions on whether PM should be under Lokpal or not, but most agreed. However on judiciary (as in SC), there was total unanimity that it must not be under Lokpal, lest it’s independence be compromised. Everyone realises that the SC is at the very heart of civilian supremacy. Would the SC, then, have liked to set a precedent which could have imperiled its own supremacy at a later date? Because whenever the equation between civilians and military tilts in favor of the military, the courts of the land become but just a tool (think Pakistan, think Maldives or even think China).
The SC, I argue, was actually ruling in favor of civilian supremacy, even at risk of overlooking merits of the case. The SC was ruling to preserve its own supremacy. As about unsettling long settled principles of law in determining DOB, it’s a trivial matter. A future larger bench, in a different case, could reset it right. By then, The General challenge would have long been gone.
Is this a good thing , in broader scheme of things? I leave that for you to decide.
(PS: Bihar is mentioned in these columns only as an illustration and no disrespect meant to people from Bihar).