ARTICLES FROM THE SUNDAY GUARDIAN
I apologise again for returning to this subject after a week, but I am sure my readers agree that last week's return of the prodigal was a subject that required immediate comment.
Coming back to the judiciary, let me begin by referring to what the Supreme Court had to say about itself on 12 January 2012. It admitted that the people's faith in the judiciary was decreasing at an alarming rate, posing a grave threat to constitutional and democratic governance of the country. It acknowledged some of the serious problems confronting it, such as, a large number of vacancies in trial courts, unwillingness of lawyers to become judges, and failure of the apex judiciary in filling vacant HC judges' posts. The Vision Document of UPA 2, which had promised to appoint 5,000 ad-hoc judges to wipe out a pendency of 2.77 crore cases in the trial courts, came to nought.
Yes, it is indeed a notorious fact that the ratio of judges to population is 1 to 10 million, whereas actually it should be five times larger. The calculations of the National Court Management System (NCMS) set up by the Supreme Court, in its report of 2 May 2012, informs the nation that the number of judges must be increased almost six-fold, from our present sanctioned strength of 16,000 judges, with an additional 80,000. Our courts have arrears of about 15 crore cases, although it is somewhat comforting that 74% of these cases are less than five years old. We must now create a system in which no court can be allowed to have a single case pending for more than five years.
Just by way of example, let me give my readers a sense of how long it took for a high profile murder case to reach conviction stage. The late Railway Minister L.N Mishra's murder took place on 2 January 1975 at Samastipur railway station. This trial concluded only on 8 December 2014, after 39 years. Shocking and unacceptable are the only words I can use to describe it.
Even before the NCMS report, several Law Commission Reports have advised the creation of five times the number of courts which we currently have. This requires considerable expenditure, particularly on infrastructure, both movable and immovable. The required funds must be a preferential charge on our fiscal resources, and it is regrettable that the government (in substance, the ruling politicians) is not willing to invest in additional infrastructure and staff on this absolutely essential measure, even though it has enough resources, including about Rs 90 lakh crore stashed in foreign banks.
Agreed, providing court buildings and infrastructure may take some time, but internal judicial streamlining need not keep waiting for court construction to complete. Until then, some innovative solutions can be put in place. Perhaps one court house can be used for additional sessions during different parts of the day, with different independent staff. This would provide speedier justice to the common man and clear the backlog of cases, which are so embarrassing to our national judicial statistics.
The cutting edge and primary face of our judicial system for the common man is the lowest judge in the judicial hierarchy, both on the civil and criminal side. It is the holders of these offices for whom the highest qualifications and training must be insisted upon. Their salary and perks of office must closely approximate to what is provided for the highest judges, with just a nominal difference. So too, the age of retirement of all classes of judges should be uniform. This, and the equality of perks, will reduce irrational longing for upward mobility and undignified attempts to secure it.
It is also necessary to place greater emphasis on judicial academies in all states of the country, where all levels of judges should be exposed to up to date case law, judicial knowledge and trends, participate in experience sharing, and hear fair criticism so as to positively improve the quality of delivery of justice.
One practical way for the Supreme Court to relieve itself from the enormous pressure of numbers upon it, could be to set up benches outside Delhi — in the north, south, east and west of India, something contemplated in Article 130 of the Constitution. It is difficult to understand a former Chief Justice of India's assertion that this will fracture the integrity of the court. Surely, integrity has nothing to do with geographical location.
The judiciary must also recognise that there are certain cases which must be tried and disposed of much faster than others. For example, the trial of rape cases must receive highest priority in the matter of speedy disposal. Under no circumstances, does this amount to violation of the right to equality. Equal treatment of unequals is the highest form of inequality.
To overcome dislocation in the justice system caused by shortages of judges at all levels, we could also consider the British system of appointing temporary judges to preside in courts. I believe it should be the duty of senior and known practicing lawyers of high repute and acumen to undertake this responsibility periodically, not only to provide swift and proper justice, but also to provide training and skills to junior lawyers.
There is also criticism that cumbersome and lengthy court procedures add to delays in the administration of justice, skewing it in favour of the more powerful party. My considered opinion on this is that it is not legal procedures that cause the delay, but an improper understanding or application of them. Intelligent and enlightened use of procedures can only ensure proper justice to the common man, and prevent unnecessary delay in administering it to her/him.
Now let me turn to the responsibilities and duties of the bar. Lawyers, during the course of their pre-enrolment education and actual practice, must imbibe that their avocation is a profession of public service, and not a business, the dominant object of which is making money. Under no circumstances should they foment avoidable litigation. Settlement of compoundable disputes, which include all civil disputes by negotiations or arbitrations, should be a highly desirable qualification of every practicing lawyer.
Lawyers appearing as public prosecutors in criminal cases and all lawyers appearing for the prosecution in criminal cases must never seek the conviction of any person known to be innocent. Nor should they conceal from the accused facing trial any material or evidence in their possession, which may help to establish innocence of the accused, secure bail or otherwise destroy in whole or in part the prosecution case.
Now, coming to our national scourge, the issue of corruption, the judiciary is certainly not immune to it, but perhaps corruption persists at a lesser scale in the judiciary than in other organs of government. Let me give you some views on this subject from within the judiciary itself.
In June 2011, a universally respected former Chief Justice of India, J.S. Verma, stated that "certain individuals with doubtful integrity were elevated within the higher judiciary". He cited the case of Justice M.M. Punchhi, whose impeachment had been sought by the "Campaign for Judicial Accountability". Justice Verma said he was willing to permit the allegations to be probed, because they were serious, and therefore required to be investigated, so that one could know whether they were true or not. But the political executive refused to allow this, and Justice Punchhi was later elevated to CJI despite facing serious allegations". Justice Verma also talked about another former Chief Justice of India, K.G. Balakrishnan's continuance as chairman, National Human Rights Commission, saying that, "he should have demitted long back and if he doesn't do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office".
In November 2011, speaking at the V.M. Tarkunde Memorial Lecture, a former Supreme Court Justice, Ruma Pal, computed seven sins of the higher judiciary, namely, a) turning a blind eye to the injudicious conduct of a colleague; b) hypocrisy — the complete distortion of the norm of judicial independence; c) secrecy — the fact that no aspect of judicial conduct including the appointment of judges to the High and Supreme Courts is transparent; d) plagiarism and prolixity — meaning that very often SC judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this — and use long-winded, verbose language; e) self arrogance — wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures; f) professional arrogance — whereby judges do not do their homework and arrive at decisions of grave importance ignoring precedent or judicial principle; and g) nepotism — wherein favours are sought and dispensed by some judges for gratification of varying manner.
Let us also not forget that in 2011, Soumitra Sen, former judge at the Kolkata High Court became the first judge in India to be impeached by the Rajya Sabha for misappropriation of funds.
Ridding the judiciary of corruption can only be achieved if women and men of proven moral calibre in addition to judicial excellence are selected to serve as judges. I have described in detail my views on the appointment of Supreme Court judges in my piece of 8 February 2015 (Curb executive control of judiciary). The Constitution has laid down certain qualifications for the appointment of judges, but they do not appear to be sufficient to find men and women of suitable ability and unimpeachable character. The system of appointment through the collegium is an improvement upon the previous system, where appointments were almost completely political in nature. However, these touch upon only structural and systemic changes. Sadly, we must admit that no law or legislation can create character, and the best of laws and legislations can be manipulated for illegal and immoral purposes. As in the case of any other institutional reform, the first requirement is enlightened, dynamic leadership, judicial will and commitment from within. Reform will automatically follow.
I must apologise to my readers for having devoted last Sunday to some facets of the Delhi elections. With Delhi voting on Saturday, I return to judicial reform for Sunday.
Let me start with the appointment of judges. It is an elementary principle that a litigant cannot be allowed to have a voice in the appointment of a judge from whom he is seeking justice. On a larger scale, it means that the litigants in general must have no effective hand or participation in the appointment of judges. It is a fact that apart from litigation between private persons, the executive, namely, the government and its extensive blundering bureaucracy are the ones against whom the wronged citizen seeks redress from the courts. Logically, should this wronged citizen be expected to have confidence in judges who owe their appointment wholly or partly to the executive? Once upon a time, when our rulers were honest, the system as originally expounded in our Constitution, which gave complete power of appointment to the executive, subject only to consultation with the judiciary, did work satisfactory. Unfortunately, national character has declined, the decline being deeper and faster amongst ranks of our executive.
The system, therefore, had to be altered. The first effort took place in the famous S.P. Gupta vs Union of India — 1981, where unfortunately the Supreme Court upheld the challenged system. They refused to treat "consultation" with judges as "concurrence". However, there were welcome references to the system prevalent in other countries like South Africa, where judges were appointed not by the executive, but by a judicial commission. Certainly, the Law Minister was formally consulted, his comments upon appointees or recommendees of the judiciary given due respect and attention, but they were not binding on the judges.
In the Second Judge's case of 1993, the Supreme Court was persuaded to hold that the word "consultation" meant concurrence. In other words, the judges had the final voice and not the executive. Though this was a great reform, even this new system had serious defects. There was no transparency in the process of appointment. The citizenry in general had no knowledge of who were to be appointed, and hence had no opportunity to voice their comments on the undesirable ones. In the words of the inimitable Mr Justice Krishna Iyer, the system was "incestuous". The judges bargained amongst themselves "you scratch my back, I scratch yours". This incestuous system had to go, and a judicial commission was the solution.
The next question that arose was what kind of a judicial commission should be created for this purpose. Many years ago, I had introduced in Parliament a Private Member's Bill on this topic, that contemplated and advised a National Judicial Commission with five members — the Prime Minister and the Leader of the Opposition, an eminent representative of the bar, a jurist from the academic world, and a person well-versed in the social sciences, who understands the needs of the underprivileged class of our society. The presence of the first two neutralised executive power. The practicing bar is the constituency of the judge, whose confidence he must enjoy. It is only members of the bar who know the black sheep on the bench. The American Bar Association can, by its adverse criticism, make the mighty President of the United States withdraw his nominees for judicial office. A Lord Chancellor of England admitted that if he made an unworthy appointment, he could not possibly look straight in the eyes of the lawyers at the bar dinners.
The Constitution, in Article 124(3) prescribes the qualifications of a person to be appointed as a Supreme Court judge — that he should be a citizen of India, that he has been for at least five years a judge of a high court, or has been for at least ten years an advocate of a high court, or is in the opinion of the President, a distinguished jurist.
To the best of my knowledge, no person has been appointed to the Supreme Court bench, because of his qualification as a distinguished jurist. This either means that the appointing authorities have regarded this qualification as totally redundant, or that the appointing judges believe that every person who has been judge of a high court for five years, or an advocate before the high court for ten years automatically acquires qualifications of a jurist.
I believe that the requirement of a jurist in the commission is absolutely essential. Our country badly needs them, and five years' judgeship in the high court or ten years' practice at the bar is not enough to make one a distinguished jurist.
Lastly, the country's progress and prosperity depend upon the welfare of the workers, the pillars of our economy. Without them, no economic growth is possible, and their need for justice is both acute and obligatory. Some recognised leaders of this sector of our citizenry will add to the social and public acceptance of the National Judicial Commission.
Now let us see what has been accomplished by the new Constitution 121st Amendment Bill 2014, which has since been enacted by Parliament. This Bill, unlike the earlier one, which failed to pass, has by Article 124A established the National Judicial Commission, as well as its constitution and functions. The defects of this new provision, however, are as serious as those of the previous one rejected by Parliament, namely:
(i) The Chief Justice of India and two other senior judges of the Supreme Court are three out of the total six members. This is unexceptionable and right.
(ii) The objection is to the fourth member, the Union Law Minister in charge of law and justice. This member should have been an independent and eminent member of the bar, and certainly not the minister of the government. If any minister, including the Prime Minister, is to become a member, his presence should be neutralised by Leader of the Opposition. The object of this provision, therefore, is to give the executive a significant edge in the selection of judges. This offends the very first principle that the litigant must have no voice at all in the appointment process of the judge before whom he seeks justice.
(iii) Now the remaining two members of this commission are described as two eminent persons to be nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition. This provision does not ensure the presence of an eminent and independent leader of the bar, nor does it provide for a distinguished jurist or academician. I have expressed earlier that a person eminent in the social sciences should normally mean a person enjoying the confidence of the workers of India. And besides, eminent persons in our present democratic ethos are normally interpreted to be those enjoying political power.
(iv) One out of the two eminent persons is to be nominated from one of the six classes of the citizens of India — Scheduled Castes, Scheduled Tribes, OBCs, minorities or women. Selection of one member from these six large groups will certainly not be easy and can cause dissention and strife in nomination, or even an impasse.
To the best of my knowledge, this Bill was passed in Parliament almost unanimously. The previous government had initiated a very mischievous measure in the Constitution 120th Amendment Bill of 2013, introduced in the Rajya Sabha on 24 August 2013 by my friend Kapil Sibal, then Law Minister. He had somehow, through his personal magic, persuaded the Leader of the Opposition, Arun Jaitley to accept that Bill as good. I was the lone Rajya Sabha member who stood up to oppose the Bill, because I saw its mischief. And that was that the constitutional amendment only created a judicial appointment commission, but its structure, functions and powers were to be decided by ordinary Parliamentary Legislation, to be passed by simple majority. The Parliamentary Legislation could well provide that the Commission will consist of only one member, the Law Minister alone.
As a result of my serious opposition and explanation of the nature of the fraud under perpetration, the Bill could not be passed in that form, because substantially the entire Opposition walked out in protest and the requisite majority for a constitutional amendment was not available to the ruling party. This virtually saved the nation from reverting to the regime of executive supremacy in the matter of judicial appointment.
The only reform following the 121st amendment and the National Judicial Appointments Commission Act, 2014 is that the constitution of the National Judicial Appointments Commission is now made a part of constitutional Article 124A, and no longer left to the mercy of ordinary parliamentary legislation. However, this Act, fortunately, has not yet come into force. Last week, the Law Department of the University of Bombay organised a full day discussion on the Act, attended by eminent law professors, practicing lawyers, judges and students, and it found no approval from anywhere. For lack of adequate space, I can only point out its main defect, in the vain hope that this Act will not be brought into force until replaced by another or amended in toto. And that is that the Act is very badly drafted, almost justifying the well-known ditty:
"I am the draftsman and I write the country's laws
And of half the litigation I am the cause."
I must apologise to my readers for breaking my piece on judicial reform. This week has seen some matters of urgent public importance, which I believe warrant immediate comment. I will conclude my piece on judicial reform next week.
A huge controversy erupted, both within and outside BJP ranks, after nomination of Kiran Bedi as its candidate from Krishna Nagar constituency, and her projection as future Chief Minister of Delhi. The most vocal group of protestors was a large, influential section of practicing lawyers in Delhi, the very same section which had laboured hard for Narendra Modi and BJP candidates across the country, during Parliament elections.
Their grievance is founded on an ugly incident which happened in the 1980s, when Kiran Bedi, a young police officer, ordered a lathi-charge against lawyers, humiliating them and physically injuring many. Another grievance against her is that she left her original outfit, India Against Corruption, not for any convincing ideological reasons, but only for greener political pastures. Yet another grievance is that none of the eminent lawyers of the BJP, who no doubt were aware of these antecedents, thought it fit to keep the party leadership informed of them. Had they done so, this embarrassment to BJP could have well have been avoided.
Being preoccupied with my legal work and travel, I was unfortunately unaware of what was brewing. I came to know of this unpleasant development only after a sizable protest against Kiran Bedi had become a fait accompli. My subsequent talks with prominent leaders of the agitating lawyers cut no ice, and unfortunately, their grievance remains unresolved.
This is my last effort to put an end to this sorry episode. Let me inform my readers that when Arvind Kejriwal and senior leaders like Shanti Bhai and Prashant Bhushan floated the new Aam Aadmi Party, I heartily welcomed it and even voluntarily sent in my humble financial contribution. I believed their promise to fight the corruption of the ruling party, and expected that they would be natural comrades of Mr Modi and the BJP, which had similar objectives. But I was shocked and disillusioned to learn from an AAP founder member that he preferred Rahul Gandhi (with all his Congress corruption baggage), to Narendra Modi as Prime Minister. I requested Kejriwal to disown this statement publicly. Instead, he wrote me a most insulting and abusive letter, which not only revealed his vile etiquette, but also corroborated the theory doing the rounds, that the AAP was veering towards becoming a pro-Rahul, anti-BJP outfit.
I do not blame Kiran Bedi for parting company with Arvind Kejriwal, a man best known for deserting government and betraying his voters. The only rational explanation that emerges is that Arvind Kejriwal just did not have the mettle, knowledge or expertise to run a government, or deliver on the grandiose promises he had made to the people of Delhi. His bluff had been blown, and he had nothing to turn to except desertion, without any constitutional justification whatsoever. I'm glad Kiran Bedi has chosen her own path, and I hope she will be able to serve the people of India, and fulfil Prime Minister Narendra Modi's pledges to them.
Kejriwal seems to find a strange personal fulfilment in revealing to his electorate his impudence and ignorance that match each other perfectly. Here's an illustration. The Election Commission rapped him seriously for advising voters that they must accept bribes from candidates of other parties but vote only for him and AAP candidates. However, he showed scant respect for the Election Commission warning and has repeated himself with an air of bravado, almost criminal in nature, thinking it is his best qualification for becoming Chief Minister of Delhi.
A little education in such matters would have prevented him from making such a pathetic spectacle of himself. I am reproducing a paragraph from the Supreme Court judgement in Gadakhyashwantrao Kankarrao vs Balasaheb Vikhe Patil, reported in (1994) 1 SCC 682, for his benefit.
"But some of the statements made by Sharad Pawar, The Chief Minister of Maharashtra, even though not amounting to corrupt practice under the enacted law, do not measure up to the desired level of electioneering at the top echelon of political leadership to set the trend for a healthy election campaign. His suggestion to the voters to accept monies etc., if distributed by a candidate, without being influenced thereby as a means of propagating socialism exhibits a bizarre perception of socialism. It is shocking enough that the appellant said so but far worse to find the Chief Minister endorse that view. Intended as sarcasm it depicts poor taste. If this be the level of election campaign at the top, it is bound to degenerate as it descends to the lower levels. Some portions of the speeches of Sharad Pawar were indeed high precept but the electorate would have benefited more by knowledge of the track record of the preachers' practice of the same, there was no such attempt. The degree of responsibility and the level of electioneering expected of the top leadership was wanting in these speeches. If probity in public life is to be maintained and purity of elections is not a myth or mere catch phrase, a higher level of electioneering is expected at least at the highest level of political leadership."
I hope Kejriwal reads this and apologises both to the Election Commission and to the voters to whom he has given unseemly, criminal advice.
I request our lawyer friends to take into account Kejriwal's criminal misdemeanours and reflect upon how they vitiate public life, as against Kiran Bedi's actions at the very early, inexperienced stages of her career in the Indian Police Service. Her misconduct against the lawyers is not easily excusable, but it should be borne in mind that she was publicly reprimanded and suffered punishment by being denied the police commissioner's post, which was otherwise her due. Many years have gone by, circumstances have changed, and she has paid for her mistakes. To forget that unfortunate occurrence may well be in public interest now.
I vividly recall the success of our "Lawyers for Modi" campaign at Talkatora in March 2014, when we pledged our support for Mr Modi, despite attempts by eminent lawyers within the BJP to sabotage this event. Well, India was fortunate enough to finally get the best Prime Minister to lead it after decades of corruption. I urge the legal fraternity that we should not allow an almost time barred anger to dilute our faith and solidarity with Mr Modi, and we should assist Kiran Bedi in her new responsibility.
Another matter of even greater importance continues to haunt the present. The people of India in general and the poorer sections in particular were overawed by Narendra Modi's solemn promise to retrieve our stolen wealth of an astronomical figure of about Rupees 90 lakh crore, and that the criminals would be identified and punished. Today, many are voicing their disappointment, including Anna Hazare. PM Modi, in the throes of spectacular success in many spheres, should not become impervious to these dangerous signals, and not a farthing has been secured in nearly eight months of holding office. This must change.
I have three qualifications which entitle me to speak out on this issue. I am a citizen of India; I am a senior MP, having been one for much longer than all others in government; and I am the petitioner in the black money case with a Supreme Court decree in my favour.
I am entitled to ask some questions, for which I am not getting any replies through correspondence.
(1) Why is the government using the DTAT for recovery of black money, when India is a party to the United Nations Convention Against Corruption?
(2) Is the government aware that the Convention is intended to override the customer secrecy practices of banks in which monies are secreted? That it creates an unqualified right and obligation of states to share information about concealed illicit wealth?
(3) Can the government disclose to the nation what steps it has taken to secure information from foreign banks and the governments of countries in which they are carrying on business?
(4) Why has the government not passed legislation (by Act of Parliament or Ordinance) nationalising secret bank accounts abroad? This has been suggested by the BJP Task Force, by the government's National Security Adviser, and by this humble, expelled member of the BJP who holds a decree of the Supreme Court.
Questions on this issue are getting louder and more frequent, from the public and from politicians, cutting across party lines. Government must stand by its election promise, or else, time will soon be running out for credible, convincing answers.
his is an appeal to the respected President of the world's most powerful democracy, and through him, with all my affection and gratitude, to those numberless American men and women who stand for freedom in the world; who know no distinctions of colour, race, religion or creed; and who believe in a religion of love, humanity and justice. True to the tradition of my country, I believe that the world should be liberated from the perennial fear of violence, terrorism and war, possibly a nuclear war.
As an ordinary citizen of Bharat, that is India, I am proud to belong to a country which long before the dawn of Greek and Roman civilisations, had produced a mighty civilisation with enviable attainments that were exposed to the West only in the 1920s, after the excavations in MohenjoDaro and Harappa. In more recent history, India has produced thinkers and philosophers who can hold their own against the most outstanding in the world.
Mr President, apart from Mahatma Gandhi and Rabindranath Tagore's seminal contribution to world philosophy, you are doubtless familiar with Swami Vivekananda, India's greatest cultural ambassador, and his stellar performance at the Parliament of Religions in Chicago on 11 September 1893. An impressive young man, just around 30 years old, he was representing a religion that was almost 60 centuries old. He was nervous, never having spoken before such a large and august gathering before, and in his nervousness missed his turn to speak many times. When he finally started speaking, his opening salutation to his "Sisters and Brothers of America" produced a spontaneous and unanimous two-minute ovation and deafening applause. The essence of his speech was that upon the banner of every religion will soon be written in spite of resistance, "help and not fight," "assimilation and not destruction," "harmony and peace and not dissension". At Washington, he told his audience that religion is "not an outgrowth of fear; religion is joyous. It is the spontaneous outburst of the songs of birds and the beautiful sight of the morning. It is an expression of the spirit. It is from within; an expression of the free and noble spirit." Swami Vivekananda's profoundness illuminated the Parliament of Religions, the press was full of adulation, and he became an icon for America.
Mr President, permit me to introduce myself. I was the elected chairman of the Indian Bar during India's notorious Emergency of 1975, when thousands of eminent persons in India were imprisoned arbitrarily. For fearlessly attacking the evil dictator, a warrant was issued for my arrest, but the High Court restrained its execution. Our Supreme Court, unfortunately, let the nation down by declaring judicial impotence in the matter of protecting the liberty of citizens. I escaped from India, and I am the only one Indian who has been ever granted political asylum in your country. I have since been involved in clean politics and I am perhaps the oldest Member of Parliament. I am deeply indebted to your country for having provided me refuge and means of livelihood during my exile. Two of my children and their children are loyal citizens of your country. I have never forgotten my debt of gratitude to your country, and what I write here is also a manifestation of that sentiment.
Mr President, I am a most ardent admirer of your country, for its glorious Constitution, for its human rights regime and for its solid, indestructible democracy. I admire the practice of true secularism by your Christian majority society, free from dogma and prejudice. We in India are trying hard to strengthen ourselves into a unified, secular nation, undivided by differences of caste, creed or religion. The world knows the difficult challenges we face, and in this message, I will dwell only upon the most difficult one — the mayhem and murder let loose by religious fanatics who have no understanding of the greatness and core of the religion they claim to profess and practice. I am speaking of Islam and its great Prophet.
Mr President, what happened to the US on 11 September 2001 has happened to us in November 2008 and continues to bedevil us every day of our lives. We are grateful that it is mainly your effort that rescued our friend and neighbour Afghanistan from the stranglehold of the Taliban, the Haqqani Network and the Lashkar-e-Taiba, in league, of course, with Pakistan's Internal Services Intelligence (ISI). You rid the world of a monster called Osama bin Laden.
India has fully collaborated in this to the extent of its ability. Just a few days before Pakistan's Prime Minister Nawaz Sharif visited India to attend our new Prime Minister's oath taking ceremony, our consulate in Herat, was attacked by militants belonging to LeT. Incidentally, this was the eighth attack on the Indian mission in Afghanistan.
India has made huge investments in development projects in Afghanistan and is its fifth largest development partner. As recently as May 2013, the Afghan ambassador to India, Shaida M. Abdali suggested that the two countries must sit down and discuss the contours of security and defence co-operation. India is prepared for all this, but we are terribly disturbed by your decision to completely withdraw your forces from Afghanistan by the end of 2016, starting 2014. Mr President, you would not be unaware that your decision has been criticised, not only by your Republican opposition, but also by former military officers and civilian officials, who worked for years to support your strategy, which you are now determined to end.
Responsible people in Afghanistan have made no secret of the fact that the threat of insurgency by terrorists is by no means over, and without the presence of American troops and other Nato forces, they are inadequately prepared to safeguard their security.
Mr President, we do realise that some of your countrymen desire an end to US presence in Afghanistan. But a premature exit will be a great betrayal of the people of the civilised world whose inhabitants yearn for a peaceful existence. It is true that you have promised to leave 9,800 troops in Afghanistan, but even this number will be halved by the end of 2015. The rest will be deployed in Kabul and Baghram and they too will depart by the end of 2016.
We are not cowards and we are prepared to make the sacrifices expected of us. But we respectfully and sincerely suggest the following: Please leave, if you must, but only after the forces, which can be provided by Afghanistan, India and other Asian well wishers, are adequately prepared to face the menace without your presence. The departure schedule of your forces should be linked to a periodic assessment of the efficacy of the alternatives put in place after your decision is fully executed.
You would be aware, Mr President, that your Iraq experience might repeat itself. Did not sectarian violence return to that country after US withdrawal? Your announced plan, Mr President, is already creating new hope and opportunities for the Taliban and their supporters for regrouping and destroying Afghan independence and peace in surrounding Asian states. It is most unrealistic to assume that local security forces can develop the required skills for counter terrorism and intelligence gathering, military superiority or air power, after your departure.
Marine General James N. Mattis has already advised that US and Afghan military leaders would have preferred the American announcement to have been a bit more ambiguous. He has criticised what he considers is your telegram to the enemy that your forces would quit the combat. This highly experienced expert has clearly questioned the ability of the local forces to conduct counter terrorism operations from 2017. He has warned that there is a serious risk that Al Qaeda will repopulate Afghanistan and resume attacks against the United States and certainly against India's forces and the development partnership. Responsible members of the American Senate like James Inhofe have clearly warned that the US cannot afford to repeat the mistakes they committed in Iraq.
Mr President, our Prime Minister Narendra Modi, during his recent trip to your country is known to have requested you on the same lines. Do not repeat the mistake of Iraq. The US withdrawal process from Afghanistan should be gradual and phased out, commensurate with Afghanistan government's capacity to fight the Taliban and prevent it from raising its head again. Renowned Pakistani journalist Ahmad Rashid has called your withdrawal plan "catastrophically wrong" and has predicted that it will almost certainly mean the relapse of Afghanistan into civil war and the emergence of groups even more extreme than the Taliban.
Lastly, Mr President, I'm sure you recognise that India is part of the solution and the Pakistan army is a part of the problem. Do not surrender to Pakistan's fiction of "good Taliban" and "Bad Taliban", the tragedy of which they themselves have experienced very recently. And surely, you are aware of the role of the "good Taliban" in the attacks on the Indian embassy in Kabul in 2008.
Harsh V. Pant, ends his highly readable book India's Afghan Muddle with a passage from Alexis de Tocqueville, the great French political thinker: "When the past no longer illuminates the future, the spirit walks in darkness." He cautions our policymakers that India will certainly be surrounded by darkness if they do not learn from the past and shape a different future for Afghanistan, India and the region.
Mr President, de Tocqueville is very dear to both America and India. We must heed his words with great seriousness.
Copyright. All rights reserved. Ram Jethmalani. 2019.
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