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A Tribune Special
Publish history of all wars India fought
Declassify the Henderson-Brooks report, says
Dinesh Kumar
T
he Central Chief Information Commissioner’s recent
decision to uphold the Defence Ministry’s refusal to declassify the 46 year-old Henderson-Brooks committee report that inquired into the debacle of the 1962 Sino-Indian war makes little sense and reflects a vintage mindset.

Illustration: Kuldeep Dhiman


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THE TRIBUNE SPECIALS
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TERCENTENARY CELEBRATIONS


OPED

Reconciling the spouses
Looking beyond the SC ruling on divorce

by Virendra Kumar
T
he Tribune (March 9, 2009) has brought to the attention of its readers a recent ruling of the Supreme Court in Vishnu Dutt Sharma v. Manju Sharma by Justice Markanday Katju and Justice V.S. Sirpurkar. The Bench has ruled that divorce cannot be granted under the provisions of the Hindu Marriage Act 1955 on ground of irretrievable breakdown of marriage.

On Record
Backlog of RTI cases alarming: Gandhi
Shailesh Gandhiby Girja Shankar Kaura
C
entral Information Commissioner Shailesh Gandhi has been promoting
and teaching Right to Information (RTI) to various sections. He has
conducted over 500 workshops for citizens and officers in slums, clubs,
offices and colleges.                                                 
Shailesh Gandhi

Profile
Diplomat, writer and politician
by Harihar Swarup
I
T is a unique way of launching an election campaign.
Instead of launching it at the poll rally, Congress
candidate from Thiruvanan-thapuram, Shashi Tharoor,
has taken recourse to his website to declare open his
campaign. Among other things, he has promised the
electorate —“I will work with dedication and sincerity
for your well-being; my beliefs and principles will never
be for sale; I will never lie to you or intentionally
misdeal you; and you can count on me to do my best”.

 


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A Tribune Special
Publish history of all wars India fought
Declassify the Henderson-Brooks report, says Dinesh Kumar

The Central Chief Information Commissioner’s recent decision to uphold the Defence Ministry’s refusal to declassify the 46 year-old Henderson-Brooks committee report that inquired into the debacle of the 1962 Sino-Indian war makes little sense and reflects a vintage mindset.

The government’s refusal to declassify this report submitted in May 1963 spans every political dispensation that has ruled at the Centre since 1993 when the 30-year secrecy clause officially lapsed.

Since then, successive defence ministers have cited ‘public interest’ as the
reason for not declassifying this report each time a question on this has been
raised in Parliament.

The government has on only two occasions voluntarily declassified an official war history / report – the Official History of the 1947-48 Kashmir war with Pakistan 41 years later in 1989 and the Kargil Review Committee Report on the 1999 Kargil war, less than a year later, in 2000.

All the other official war histories – of the 1962 Sino-Indian war and the India-Pakistan wars of 1965 and 1971– have never been officially released but, yet, are available on the website because of exposes by the media. These reports may be true to the text, but it is clear that these are not authenticated versions.

While the Henderson-Brooks report continues to remain in the Defence Ministry lockers, the three other war histories have been kept away from public eye even though the statutory 30-year period is long over.

This is even though a specially convened Military History Review Committee comprising three experts categorically recommended in 2001 that the war histories of these wars be declassified. The Committee, chaired by former Defence Secretary N.N. Vohra (currently the Jammu and Kashmir Governor), was established in 2000.

This exercise coincided with a comprehensive review of India’s security system by four specially set-up Task Forces reporting to a Group of Ministers Committee in the aftermath of the May-July 1999 Kargil war.

In January 2001, a report prepared by the Vohra Committee comprising Lt Gen (retd) Satish Nambiar and the former Director of the History Division of the Defence Ministry, Dr S.N. Prasad, as members, recommended the release of the three war histories in their original form.

Two key reasons given for declassifying the report were (i) the need for the armed forces’ to draw military lessons from the wars, and (ii) because it was a legal obligation to declassify documents after 30 years vide a parliamentary legislation.

The Vohra Committee report, which took just three months to prepare, also argued that it made little sense not to declassify the war histories when so many years had elapsed and scores of books, including accounts by military officers who fought in these wars, had been published.

Although the Henderson-Brooks report was not included in the agenda of the
Military History Review Committee, Mr Vohra had informally advised the then
Defence Minister George Fernandes to declassify the report on the latter’s asking
around that same time.

Mr Vohra had suggested that if the report was considered that sensitive, then an abridged version comprising lessons learnt for the Army and the Air Force could be released so that successive generations of armed forces officers could learn from it.

He also argued that in any case a large number of books had been written on the Sino-Indian war, including by a number of western authors.

The government did not accept the committee’s recommendation following which Lt Gen Nambiar was assigned to edit and ‘sanitise’ the history of these three wars. Yet, this too did not cut ice with the government.

While the release of the Henderson-Brooks report has been opposed primarily by the Ministry of External Affairs on the ground that bilateral relations and the on-going negotiations on the border dispute between India and China may be affected, declassification of the three other war histories has been largely held up because of differences between the Army and the Air Force.

For example, Army war diary accounts of the 1965 war record their disappointment with the Air Force for not providing them with adequate air support and also, on several occasions, for killing ground troops in friendly fire.

The Air Force, on the other hand, accuses the Army for either not seeking air support in time or for not providing accurate information about ground troop movements. Interestingly, even these war histories were very nearly not written.

Behind this lies a story. Soonafter the P.V. Narasimha Rao government came to power in 1991, Union Finance Secretary Montek Singh Ahluwalia (presently Deputy Chairman of the Planning Commission) issued a circular directing the Ministry of Defence (and also other ministries) to wind up all ‘marginal’ departments as a cost-saving exercise. The Defence Ministry’s Historical Division was identified as one such ‘marginal’ department.

Before this department was axed, Mr Vohra, who was then Defence Secretary, quickly commissioned Dr Prasad to write the war histories of the 1962, 1965 and 1971 wars. A total of 50 numbered copies of each of these three war histories, which were finalised between June and November 1992, were published and distributed on a restricted basis to key officials.

They included the Cabinet Secretary, the Foreign Secretary, the Defence
Secretary, the three Service Chiefs, and the Commandants of the College of
Combat (since renamed Army War College), the College of Air Warfare, the
College of Naval Warfare, the National Defence College and the Defence
Services Staff College among others.

The Henderson-Brooks inquiry report pertains to the only war that India has lost in its post-Independence history. Lt General Thomas Bryan Henderson-Brooks, an Anglo-Indian who later migrated to Australia, and Brigadier (later Lt Gen) Prem Singh Bhagat, were tasked with holding an internal inquiry into the 1962 war.

The report was submitted to Army chief General Joyanato Nath Chaudhri on May 12, 1963 who forwarded it to Defence Minister Yashwantrao Balwantrao Chavan on July 2 of that year.

Eight years later, Neville Maxwell, an Australian journalist working with The Times, London, published his book India’s China War citing from “an unpublished Indian Army report on these events”. Any doubt that the report had been leaked to the British author were dispelled when Maxwell published a paper in 2001 titled Henderson-Brooks Report: An Introduction which is since available on the Internet.

Quoting from the report, Maxwell’s paper questions the wisdom of both decisions and indecisions taken by Prime Minister Jawaharlal Nehru, Defence Minister Vengalil Krishnan Krishna Menon, Intelligence Bureau Director Bhola Nath Mullick and some top military officers including the General Officer Commanding of the Tezpur-based IV Corps, Lt Gen Brij Mohan Kaul, over whose promotion the previous Army chief, General Kodendera Subayya Thimayya, had earlier tendered (and then also withdrawn) his resignation in 1959.

Even so, the Henderson-Brooks report is not without two major anomalies. First, the Henderson-Brooks committee was never given access to top secret documents of the military operations directorate.

And secondly, though Lt Gen Henderson-Brooks was then just a Corps Commander, he was entrusted with the task of commenting on tactical decisions and actions by several officers much senior to him.

By not releasing both the Henderson-Brooks report and the 1962 Sino-Indian War History, the government has unwittingly been giving a free hand to the Chinese to propagate their version of the history which is publicly available.

Some of the more valuable nuggets about wars India has fought have come from accounts written by retired military officers. For example, it was only 24 years after the 1971 war that Vice Admiral Mihir K. Roy had exploded the myth that the Indian Navy sunk the Pakistani submarine PNS Ghazi.

Instead, as he revealed in his book War in the Indian Ocean, the submarine had, on the contrary, sank accidentally while laying sea mines off the coast of Visakhapatnam, the headquarters of the Eastern Naval Command conducting maritime operations against East Pakistan at that time.

Inquiries into wars and debacles are necessary if military lessons have to be learnt. The United States and Britain have held their share of inquiries and that too in the midst of wars, military operations, and the Cold war. Even Israel, which is secrecy-obsessed and located in a hostile neighbourhood, has held inquiries relating to its military actions, which have subsequently been declassified.

Only a few years ago, the United States declassified the famous Nixon Administration documents that formed part of the Foreign Relations of the United States (1969-1976) documents containing details of the US’ pro-Pakistan tilt both prior and during the 1971 India-Pakistan war when Richard Nixon was President and Henry Kissinger, his Assistant for National Security Affairs.

The details of the Nixon-Kissinger anti-India tilt is recorded in South Asia Crisis,
1971 (Volume XI),that form part of these declassified documents that are now
publicly available.

In 1967, even while the Vietnam war was on, US Defence Secretary Robert
Strange McNamara commissioned a study of how the United States had come
to be ensnared in Vietnam.

A Vietnam History Task Force produced a history of the US’ involvement in that country spanning 47 volumes, 15 of which came to be known as the Pentagon Papers. These were leaked, published in two US newspapers, and their publication subsequently upheld by the US Supreme Court.

During the midst of the Korean war, the US Senate Armed Services and Foreign Relations Committees held joint hearings into defence and foreign policies following President Harrry S. Truman’s dismissal of the famed General Douglas MacArthur.

Even while the First World War was on, Britain instituted a Special Commission in 1916 “to enquire into the conduct of the Dardanelles operations”, an infamous campaign in which the Allies lost a large number of their soldiers.

Barely a month after the end of the 16-day Yom Kippur war with Egypt in 1973, the Israeli cabinet appointed a commission to probe intelligence and deployment of the Israeli Defence Forces. The report was submitted in April 1974, partially declassified a year later in 1975, and fully declassified 20 years later in April 1994.

On January 30, 2008, Israel published the final report of an inquiry instituted into Israel’s war against the Hizbollah in Lebanon in 2006. The 629-page report found “grave failings” among both the political and military leaders and even censured Prime Minister Ehud Olmert who had testified before the inquiry.

Publishing war histories is crucial to draw lessons for any modern and progressive military and also for assisting policy-makers, diplomats, and military historians to similarly draw lessons.

It makes little sense for the government to be so cautious and paranoid about
publishing the histories of three wars that were fought so far back as up to 38,
44 and 47 years ago.

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Reconciling the spouses
Looking beyond the SC ruling on divorce
by Virendra Kumar

The Tribune (March 9, 2009) has brought to the attention of its readers a recent ruling of the Supreme Court in Vishnu Dutt Sharma v. Manju Sharma by Justice Markanday Katju and Justice V.S. Sirpurkar. The Bench has ruled that divorce cannot be granted under the provisions of the Hindu Marriage Act 1955 on ground of irretrievable breakdown of marriage.

A perusal of the apex court order in this case, however, reveals that it bears some disturbing dimensions that tend to disrupt the well-established legal order. First, the ruling deviates from the direction hitherto provided by the Supreme Court itself in a number of judicial decisions, particularly a relatively recent judgement rendered by a three-Judge Bench of the Supreme Court in Naveen Kohli v. Neelu Kohli (2006). In this case, the Bench examined the whole gamut of Section 13 of the Hindu Marriage Act, especially the numerous nuisances of the matrimonial ground of cruelty.

On totality of facts, reversing the decision of the Allahabad High Court, the Bench granted the divorce petition of the appellant husband despite strong opposition by the respondent wife.

The underlying principle that emerges from this judgement is that if it is not possible to reconcile the spouses after long separation (10 years in this case) on the basis of some ‘workable solution’, it is better to dissolve such a marriage.

The apex court affirmed the earlier decisions that took the similar position: see, Sandhya Rani v. Kalyanram Narayanan (1994), Chandrakala Menon v. Vipin Menon (1993); and Kanchan Devi v. Promod Kumar Mittal (1996).

While laying down this principle of justice, the Bench also took the opportunity
to recommend the Union of India to seriously consider bringing an amendment in
the Act of 1955 for expressly incorporating irretrievable breakdown principle as a
ground of divorce.

Reading irretrievable breakdown principle into the provisions of Hindu Marriage Act, pending its express incorporation into the Act, is a right, nay an indispensable constitutional obligation, of the apex court. Under Article 141 read with Articles 142 and 144 of the Constitution, ‘for doing complete justice in any cause or matter pending before it,’ the Supreme Court may pass any order, and all authorities are mandated to act in aid of the orders so passed. Therefore, the apex court cannot be taken to usurp the legislative function; it rather facilitates legislation by showing the desired direction.

If this construction and comprehension of the constitutional provisions is correct, it does not seem to be right in our respectful submission to say, as stated by the Katju-Sirpurkar Bench, that all those cases of the apex court that provided the relief of divorce on the principle of irretrievable breakdown of marriage, in the absence of clear and categorical provision will not be treated as judicial precedents.

Jurisprudentially, only those judicial decisions that break new grounds for doing ‘complete justice’ in the course of resolving conflict problems could truly be treated as ‘precedents’. On the contrary, a judgment rendered by the court, in which ‘full justice’ has been done by literally adhering to the clear statutory standards, hardly needs to be cited as ‘precedent’.

Thus, it sounds strange to state that, even while dealing with a ‘stale marriage’,
evidenced by a separation period of more than 15 years (in the instant case,
wife Manju stayed with her husband Vishnu Dutt for about 25 days in 1993-94,
and thereafter till 2009 they never lived with each other), the court should be
saying that such marriage could not be dissolved on the basis of irretrievable
breakdown of marriage because that would amount to ‘amending the Act, which
is a function of the legislature’.

If this proposition is accepted, that would simply imply that the judicial function as envisaged by Articles 141 and 142 is merely mechanical and not creative. There is yet another inherent reason for invoking the irretrievable breakdown principle while deciding disputes under the Hindu Marriage Act. In Vishnu Dutt Sharma case, on bare reading of Section 13 of the Act, the Katju-Sirpurkar bench found in a ‘crystal clear’ manner that ‘no such ground of irretrievable breakdown of marriage is provided by the legislature for granting a decree of divorce.’

However, in our submission, if the provisions of Section 13 are read with those of
Section 23 (2) of the Act, we would instantly hear the clear resonance of the
irretrievable breakdown principle. Under sub-section (2) of Section 23, before
granting any relief under the Act, the court in the first instance, in every case
where it is possible so to do, to make every attempt to bring about reconciliation
between the parties.

In this attempt, the court’s core concern is not to find who is guilty or who is innocent, but to explore the possibility of reconciling the spouses caught in conflict. This indeed is the application of irretrievable breakdown principle. If the inevitable conclusion is that reconciliation is not possible, then the court should consider its dissolution in terms of the provisions of Section 13 as expounded by the three-Judge bench in Naveen Kohli.

Besides, Section 13 of the Act is not completely void of irretrievable breakdown principle. In 1964, its ambit was widened by introducing Section 13 (1A), empowering the court to grant divorce decree to ‘either party’ to marriage if there has been no resumption of cohabitation for a period of one year or more after passing the decree of either judicial separation or restitution of conjugal rights.

This added provision, it seems, was not brought to the attention of the Katju-Sirpurkar Bench. This might have prompted them to realise the futility of the marriage in which there was no resumption of cohabitation for such a long period as of 15 years, against the value attached by the legislature to a relatively much shorter period of ‘one year or more’.

The writer is a former Professor and Chairman, Department of Laws, and
UGC Emeritus Fellow, Panjab University, Chandigarh


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On Record
Backlog of RTI cases alarming: Gandhi
by Girja Shankar Kaura

Central Information Commissioner Shailesh Gandhi has been promoting and teaching Right to Information (RTI) to various sections. He has conducted over 500 workshops for citizens and officers in slums, clubs, offices and colleges.

Having used the RTI to inform citizens about the Maharashtra CM’s Relief Fund, stopping misuse of over Rs 1000 crore in the redevelopment of Mumbai’s Crawford market and curbing political interference in police transfers, he is today among the six Central Information Commissioners.

In an interview with The Sunday Tribune, he discloses some thorny issues which are hindering the CIC. Excerpts:

Q: Why is the CIC lagging behind?

A: Pending cases is the main problem. There is acute shortage of staff with the Information Commissioners. We are unable to clear more than 1500-1700 cases per year. If we have adequate staff, we can settle at least 4,000 cases.

No proper systems and norms have been put in place as to how the CIC should function in the country even though more and more people are filing RTI petitions. The norms need to be identified and put in place. The commissioners and the staff also need to be trained on how to handle the cases.

Q: Should the RTI be made more stringent and its scope enhanced?

A: No. Presently, adequate number of bodies and offices are covered by it. This would mean amending the RTI Act itself, which would not be advisable. There would be no improvement as such.

Q: How is the Centre’s attitude towards the CIC?

A: The government has created the CIC and left it to fend for itself. Its response should be better to help deliver the goods. The commissioners don’t have the brief to tackle senstive issues which differ from department to department.

Q: What should the Centre do more about dissemination of information?

A: Transparency should be institutionalised. The RTI has ushered in a cultural
change and everyone should understand it. Of course, this change will come
about gradually.

Q: About four Commissioners have retired and their posts have not yet been filled. Isn’t it affecting the work?

A: Some Commissioners have been appointed. The Act provides for 10 Commissioners besides the CIC. If there were seven of them, it would be adequate to settle the cases.

Q: How many cases do you receive every month? Has the average increased
over the years?

A: Last year the CIC received about 15,000 cases. This year it would be much higher; the monthly average of cases has risen to about 1500. This will further go up if the backlog of cases is reduced.

Q: You also receive false cases. Why? How can this practice be checked?

A: It is a common problem with every law or Act and the RTI is no exception. It is a reflection of the present-day society. There are rogues everywhere and every law is misused. There is need for attitudinal change in society.

Q: How would you rate the information commissions in various states? Shouldn’t they be strengthened to become more effective?

A: Very poor. Most commissioners settle hardly 700-800 cases per year. The best disposal, outside the CIC, would be about 1500 cases per year, which reflects a very poor state of affairs.

The number of pending cases is on the rise and it is turning out to be alarming. If this continues over the next four to five years, the Act itself would be dead. The situation needs to be resolved by the government on priority.

Q: What is the CIC’s most important achievement? And how has the RTI empowered the common man?

A: The RTI has empowered the citizen in letter and spirit. He can now sit at home and seek information from the government which it is bound to provide. And the RTI’s real strength is that it is deepening the democracy in the country. Over the next three to four years, there can be a sea change in governance, provided we are able to clear the pending cases.

Q: Would you like to comment on the CIC’s continuing difference of opinion with
the Supreme Court?

A: Each constitutional authority exercises its powers in its own way and it is no different in this case.

However, this can happen only in a democracy and as such here is a case where two different constitutional authorities are expressing their opinion and voicing their difference of opinion publicly. There is no harm in it.

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Profile
Diplomat, writer and politician
by Harihar Swarup

IT is a unique way of launching an election campaign. Instead of launching it at the poll rally, Congress candidate from Thiruvananthapuram, Shashi Tharoor, has taken recourse to his website to declare open his campaign. Among other things, he has promised the electorate —“I will work with dedication and sincerity for your well-being; my beliefs and principles will never be for sale; I will never lie to you or intentionally misdeal you; and you can count on me to do my best”.

Both in English and Malayalam, the website unveils his vision and spells out reasons why he is the best choice for an MP. The former UN Under-Secretary General is no ordinary person. It is widely speculated that if Tharoor wins and if a Congress-led government is formed, he may get an important portfolio.

Given his wide experience in diplomacy, will Sonia Gandhi make him the External Affairs Minister or Minister of State? It is, however, too early to hazard a guess. Let’s wait. It is well-known that Tharoor was the official candidate of India for the post of UN Secretary General after Kofi Annan in 2006. He came close to second out of seven contenders in the race. It was indeed a narrow miss for young Tharoor.

As a matter of fact, his UN defeat was not a “real defeat”. He beat other
contenders handsomely — a former president, several foreign ministers and a
prince. During the campaign, he is credited with coining a memorable comparison
of India’s “thali” to the American “melting pot”. “ If America is a melting pot,
then to me India is a “thali”, a selection of sumptuous dishes in different bowls”,
he is reported to have said.

Besides being an accomplished diplomat, Tharoor is a prolific writer. He is in his best form with a pen and a pad. A question is often asked: is he a better diplomat or a better writer? Indeed, he excels as a writer because the world of diplomacy is too unpredictable. He has written numerous books in English. Most of his literary creations are centred on Indian themes and they are marked “Indo-nostalgic”.

Perhaps, his most famous work is The Great Indian Novel, published in 1989, in which he uses the narrative and theme of the famous Indian epic —Mahabharata — to weave a satirical story of Indian life in a non-linear mode with the characters drawn from the Indian Independence Movement”.

Few know that Tharoor began writing at the age of six and his first published story appeared in Bharat Jyoti (Mumbai) at the age of 10. His World War II adventure, Operation Bellows, was serialised in Junior Statesman, starting a week before his 11th birthday. Each of his books has been a bestseller in India. Tharoor has been a highly regarded columnist in each of India’s best-known newspapers.

Fifty-three-year-old Tharoor was born in London, educated in India and the United States, completing his Ph.D in 1978 at the Fletcher School of Law and Diplomacy at Tufts University, where he received the Robert B. Stewart Prize for Best Student. In January, he was named “Global Indian of Tomorrow” by the World Economic Forum in Devos. In 1977, at the age of 23, Tharoor married Tilottama Mukherji from Kolkata, a journalist and a scholar, from whom he is now divorce.

He has twin sons, Ishaan and Kanishk, who have recently graduated from Yale. Ishaan lives in Hongkong and works for the Time magazine and Kanishk is a resident of London working for Open Democracy. In 2007, he got remarried to Christa Giles, a Canadian, who is Deputy Secretary of the United Nations Disarmament Commission. He plans to manage his marriage long distance if he is elected to the Lok Sabha.

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