An undesirable and unhealthy controversy relating to the date of birth of four-star General Vijay Kumar Singh has flooded the media and upset the public, thanks to the games played by the higher echelons of power in the South and North Blocks. The Supreme Court had an opportunity to address this issue of massive public interest, but failed to act in accordance with the principles laid down in its judgments vis-à-vis Public Interest Litigation.

A Division Bench headed by the Chief Justice of India was carried more by its anger than logic while hearing a Public Interest Litigation filed by Grenadiers Association, Rohtak, an NGO, and did not address a national issue regarding the legitimacy of the decision of the Ministry of Law & Justice which clearly held that record of service on the date of birth of Army Chief General V.K. Singh shall be read as 10 May 1951. This record of service notification was issued by the Adjutant General’s Branch dated 25 Feb 2011, which was reversed by a branch of the defence Ministry with mala-fide intention and ulterior motives.

Former Chief Justice J.S. Verma while giving his opinion precisely stated that the date of birth of General V.K. Singh has to be read as is mentioned in his school leaving certificate (matriculation) which is 10 May 1951. Interestingly, there has been no challenge to the authenticity of his date of birth mentioned in his matriculation certificate. The former Chief Justice had given his opinion on an official request by the Adjutant General’s Branch of Army Headquarters. His ‘considered’ opinion was ignored by the Defence Ministry and silenced by the judgment of the Supreme Court, which said it shall not entertain any petition if it carries the opinion of a retired Judge of the Supreme Court.

An angry Chief Justice, while presiding over three judge bench, refused to even hear the mentioning of opinion of a former CJI. The four former Chief Justices who had given their opinion on the General’s date of birth had stated categorically that Gen V.K. Singh’s DoB stands as 10 May 1951 as mentioned in his school certificate.

Justice Verma in his introductory remarks has observed that, “Any controversy about the Army Chief’s DOB is not in the interest of the nation as also the morale of the Army.”

He concluded that, “The other contextual observation is of greater national significance. In the prevailing environment of a crusade against corruption, supported by the Union Govt. with the Prime Minister repeatedly promising ‘Zero Tolerance’ to corruption, any injustice done to a high public functionary whose public image according to media reports is of combating corruption, is bound to erode the sincerity of this promise. Recent media reports give this impression of Army Chief, General V.K. Singh, for not sparing even the highest in the Armed Forces of their involvement in the Housing and Land Scams. I am afraid edging out such an Army Chief before the end of his legitimate tenure on this pretext may give the public impression of silencing the voice of an ‘inconvenient truth’. That would be unfortunate and detrimental to the national interest. I do hope this does not happen.”

The other former Chief Justices, namely, Mr. Justice R.C. Lahoti, Mr. Justice G.B. Pattnaik and Mr. Justice V.N. Khare, in their respective legal opinions firmly stood on the ground that the matriculation certificate has to be the foundation of proof of date of birth. The important issue involved in the entire episode deserves the attention of law-makers, jurists, and intellectuals in the country.

Can a Department of the Union Government, such as the Ministry of Defence, change, modify or reverse the decision taken by another Ministry of the Union? This very important issue shall answer questions raised in hundreds of thousands of words scripted in leading journals, newspapers by galaxies of noted writers and editors in their continuous tirade to justify the wrong on the front pages of their respective newspapers.

Just one look at the most relevant documents answers all questions on the subject. The opinion of the Legal Advisor of the Ministry of Defence has been systematically ignored by the Ministry. The Legal Advisor submitted a two-page report which was drafted for the reply of an RTI application under section 6, with regard to the date of birth of General V.K. Singh and other Lt. Generals. The Legal Advisor in his findings submitted to the Ministry on 14 February2011 came to the conclusion that:

-        Identity Card issued by IMA in June 1970 at the time of Commissioning and thereafter records date of birth as 10 May 1951

-        As per 10^th Class School Certificate, Rajasthan Board, date of birth is 10 May 1951

-        All ACRs and course reports maintain date of birth as 10 May 1951

-        Medical Examination since first examination before entering NDA and thereafter also lists date of birth as 10 May 1951

-        As per documents maintained by MP-5 and IMA, the date of birth is recorded as 10 May 1951

-        The Legal Advisor in this report further verified that, “We have examined the matter and perused the relevant records. We have also perused decision of the Hon’ble Supreme Court in State of MP vs. Mohan Lal Sharma (2002) 7 SCC 719 wherein it has been held that Date of Birth recorded in Matriculation Certificate, held, carries a greater evidential value than that contained in a certificate given by the retired Head Master of the School or in the Horoscope.”  

-        The Legal Advisor concluded his report thus , “It is evident that the officer was issued an Identity Card by Indian Ministry Academy in 1970 at the time of his passing out, is having a DOB as 10.05.1951. Further, all the CRs, Course Reports and the documents maintained by the Manpower Planning (Official Custodian of Officers Record), the DOB is recorded as 10.05.1951. There is overwhelming evidence on record to show that the DOB of the Officer is 10.05.1951 and the only entry against it is the form filled up at the time of applying for NDA. Such an entry is to be treated as an aberration and credence is to be accorded to the DOB recorded in High School Certificate issued by the Rajasthan Board.”

Those raising an alarm on the issue may have a look at the findings of the Legal Advisor of the Ministry of Defence and understand that they were accepted by the Ministry of Law & Justice after due consideration and application of mind. The Adjutant General’s Branch in their official notification dated 25 Feb 2011, addressed to the Ministry of Defence as signed by Maj. General S.C. Nair, ADG, MP, directed the Ministry to perfect their record of service of General V.K. Singh with a clear direction that, “Date of birth shall be recorded as 10 May 1951 as has been recorded in his High School Certificate (Rajasthan Board), which is in conformity with all records maintained by the AG Branch.”

The controversy was compounded into travesty when the Ministry of Defence issued an office memorandum on 21 July 2011 with ulterior motive, least realizing the gravity of the entire situation, by reversing the findings of the Legal Advisor of the Ministry of Defence which were duly accepted by the Ministry of Law & Justice, only to outclass a visionary general.

An opinion was sponsored through the Attorney-General of India, a Senior Law Assistant of the Union of India. He failed to impress public opinion on the subject. He took an excuse to justify his opinion that AG Branch had not provided full facts before the Legal Advisor of the Ministry of Defence; this was contradicted by the Legal Advisor who said he had consulted the entire record in detail before formulating the legal advice to the Ministry.

Secondly, the Attorney-General concocted another excuse of ‘wolf & lamb’ story, claiming that reference as mentioned above dated 14 Feb 2011 was not rooted through Administrative Ministry, which was rebutted heavily in the legal advice itself.

The third excuse the Attorney-General found was that the Legal Advisor of the Ministry of Defence had not sought approval of the Law Secretary and the Law Minister! It is important to mention here that the findings of the Legal Advisor were accepted by the Ministry of Law & Justice (as stated above) and that fact was admitted in the notification of 14 Feb 2011.

It is pertinent that the memorandum of 21 July 2011 was issued by the Joint Secretary to the Govt. of India without any approval or mentioning of approval by the Cabinet Secretary. In such a situation, there was disagreement on the issue between the Ministry of Law & Justice and the Ministry of Defence on 25 Feb 2011 on the issue of date of birth.

The entire exercise to evolve a strategy through a memorandum was made only to reduce the DOB of General V.K. Singh from 10 May 1951 to 10 May 1950. The concluding remarks in the memorandum of the Ministry of Defence in which vested interests have tried to gain their point by illegal, unconstitutional and mala fide means stand exposed.

It said, “The Central Government therefore declares Order No. 12918/RTI/MP-6(a) dated February 25, 2011 directing to amend the date of birth of General V.K. Singh (IC-24173), COAS to read as May 10, 1951 instead of May 10, 1950 as recorded, as null and void and non est. The officer’s official date of birth will continue to be maintained as May 10, 1950 (10^th May Nineteen Hundred Fifty).”

Wherefrom was this authoritarian power to declare a notification of the Ministry of Law & Justice as null and void drawn? Is it not a dangerous precedent in the history of the world’s largest democracy? If four-star Generals can be treated this way, what will happen to the fundamental rights of the wretched of the earth?

One must understand that the date of birth of General V.K. Singh as mentioned in his matriculation certificate has not been challenged at any stage or by any party whatsoever. Secondly, the Legal Advisor of the Ministry of Defence has submitted the entire investigation report which was duly approved by the Ministry of Law & Justice holding the Date of Birth of General V.K. Singh as 10 May 1951, as stands recorded in his matriculation certificate.

Thirdly, an opinion of a Senior Law Assistant in the Ministry of Law & Justice i.e. Attorney-General, cannot change or reverse the legitimate findings of the Legal Advisor of the Ministry of Defence which were duly accepted by the Ministry of Law & Justice and approved by the Ministry of Defence.

Does that mean that an opinion of the Attorney General, a senior law officer of the Department of Law, shall be binding on the Government and the Courts? As mentioned in his considered opinion, former Chief Justice J.S. Verma is perfectly right when he opined on validity of the report of the Legal Advisor of the Ministry of Defence that,

“I have reached the conclusion that the above opinion dated 14.02.2011 reiterating that the correct DOB of General V.K. Singh is 10 May 1951 as per the authentic service records is sound and there is no occasion now to change it to an earlier date.”

Let everyone judge for himself/herself as to who is right and who is wrong.

The author is a Sr. Advocate, Supreme Court of India & Member, National Integration Council. He represented the Grenadiers Association in its PIL on the subject, which was dismissed by the Supreme Court so as not to prejudice the petition of the Army Chief