A petition seeking SC intervention telling the Union government about the violation of Geneva Convention and also trying to tell the government how to deal with Pakistan! It’s just rubbish. If the Indian government in its larger interests and stability of the region ignores the violation, then it is its decision; valid and legal. The Union government is not an automated teller machine.
This public interest litigation (PIL) is an abuse of liberty and gross intrusion into the executives’ powers. Who is the petitioner to tell the duly elected politicians and their legally appointed bureaucrats how to deal with international issues? PIL should have been rejected at the first hearing. The SC is no guardian of the Union government. Its job is to protect and uphold the Constitution and to see that international treaties to which India is signatory are not violated. But it does not mean that it can direct the government about extreme steps. While the SC can make some laws itself, it is the lawmakers in Parliament and respective Assemblies who make laws.
By the same account individuals can thereafter direct the Union government to raise particular issues at the UN, to tell the government to sign a particular treaty or not and to tell the RBI to fix the prime lending rates at a particular value and also fix cash-reserve ratio at a particular value etc. Nowhere in the world there are direct democracies. It is the representative democracies in the free world and in India referendums are not even allowed.
It is not even the prerogative of the SC to tell the Union government how to manage its affairs. The SC should not have any power in telling the government how to plan the Budget or fix its priorities. Should the SC tries to do so, which is the case, the government should reject it with the help of the opposition. This should be true for both the government at the Center and those in the states. The SC should know its limit and should not encroach into executives’ domains.
The fact is the mutilation of Indian soldiers does violate Geneva Convention on conduct of nation-states during war and peace. Since the incident took place in Kashmir, which is the disputed territory, as per the international diplomacy, the case would be considered in the category of armed conflicts.
But the Union government cannot take the issue at ICC just because a PIL is filed in India’s SC. First of all, ICC would consider the procedure through which it came to its notice, objectionable and inappropriate. In their private circles the jury of ICC would mock at India and at relationship between India’s executives and judiciary. The case is not that strong as there are many outfits and individuals operating in whole Jammu and Kashmir and even if it is, there is always fear of the Kashmir issue getting renewed attention internationally.
Moreover, the government of India had agreed for the normalization of relations with Pakistan after the talks. It should be noted that Kashmir issue is at the backburner of international diplomacy. One can read about Middle East dispute between Israel and Palestine very frequently in international and regional media but one hardly finds much mention of Kashmir dispute there. Part of the credit goes to Singh government for that.
The Union government decides about the issues of national security in a very objective manner and at the very top level. The fact is that the issues had been closed by executives of both India and Pakistan and the relations have become more or less normal after that. But if the Union government is itself looking for excuse to take the Pakistani government to ICC because of public opinion and SC’s directive then it is altogether a different thing.
The fact is that in a nation where corruption and occurrence of misrule are so high that underprivileged do not get justice, the PIL asking the Union government to take a foreign country to ICC is laughable, if not illegal as per higher laws. It is gross naïvete and if met with success, it would let academicians and intellectuals dominate over the political class.
The fact is that India needs better politicians, more than right activists, and academicians’ dominance is no good for the society. It refers to curious asymmetry in the affairs of the nation. It also refers to beliefs in simplicity, homogeneity and universality; something those that do not exist in India. If considered in totality it is an effort, which if succeeds, would substantiate beliefs in impractical aspects of Hinduism. Nationalism cannot and should not blind the highest judiciary.
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