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New
Delhi, 24 March 2002
The
media reported that Air Marshal MS Sekhon, the erstwhile AOC-in-C
Southern Command was issued a show cause notice by the Chief of Air
Staff, to either submit his resignation letter by 18 March, or face
dismissal from service for misconduct. Sekhon had made the blunder
of writing to the erstwhile Chief Minister of Punjab to canvass with
the PM Vajpayee, to appoint him to the prestigious post of AOC-in-C
Western Command, as he was well qualified to settle Kashmir and
Pakistan issues and assist Punjab and Punjabis and this would also
pave the way for him to eventually become the Chief of Air Staff.
This was the second time during the pendency of George Fernandes as
RM, that Article 310 of the Constitution, or its threatened use, was
applied by the Establishment to dismiss or compulsorily retire a
very senior Armed Forces officer. Interestingly in this case Defence
Minister Fernandes told the media that he had nothing to do with it
and that further action rested with the CAS.
Canvassing
for postings has gone on since time immemorial even in Nelson’s
and Churchill’s time but in a suave manner. In India it has become
blatant in the last fifteen years. The question was who leaked the
letter to the media and if it was a uniformed person then there is a
deeper rot that has set in, which also needs correction.
The
then Rear Admiral Vishnu Bhagwat was promoted to Vice Admiral by the
MOD when Shri NN Vohra was the Defence Secretary and Shri Sharad
Pawar the Defence Minister –– against the Navy Promotion
Board’s recommendations. The then Chief of Naval Staff Admiral L
Ramdas did not object to it and many say even colluded with the MOD,
as Bhagwat was responsible for his becoming the Chief. Later,
however, it was Article 310, which was used to dismiss him from the
highest naval post of CNS.
Many
officers have been promoted by the Minister/Ministry of Defence
against the Chiefs recommendation so what Sekhon did was passé but
he got trapped –– resign or face Article 310. Junior and mid
level officers were waiting to see what route the Air Chief, the
Defence Minister and the Government would adopt in this case but in
the meanwhile Sekhon, after some initial bravado, chose to tender
his resignation.
Article
310 Needs To Be Repealed
In
these cases the Establishment may be seen to be acting as per the
law, but very few understand that the Article 310 actually needs to
be repealed. Else it may be used again and again especially in the
case of senior officers, because the Establishment finds it
convenient to do so. If an officer is guilty, he must stand trial by
law and the Services have laws galore to deal with misconduct and
indiscipline. Article 310 is a draconian and underhand way and its
genesis needs explanation.
Genesis
of Article 310
Article
310 is a relic of the British who controlled the Empire from far
away England. The clause was introduced so that if a white British
officer in a far away place did some wrong, he could be taken off
service and sent back to Britain to
stand trial.
This was especially so if there could be social unrest or the
officer got involved with a local woman or an act that needed
immediate repatriation so as not to embarrass the Empire. Justice
Shah one of the framers of the Constitution objected to this Article
and asked Pandit Nehru not to include it in the Constitution but
Nehru insisted. Justice Shah had then said if the clause needs to be
included the President when exercising his vast powers should apply
his mind –– to which Nehru responded angrily that he did not
want a Presidential form of Government. Hence Article 310
calls upon the President to dismiss any officer at the
recommendation of the Government. In the case of Civilian and IAS
officers Art
311
is in place under which an inquiry is mandatory.
The
Admiral Vishnu Bhagwat Case
Wednesday
30 December 1998 went down as a low water mark in the history of the
Indian Navy. On that day the incumbent Navy Chief Admiral Vishnu
Bhagwat was unceremoniously relieved of his post by the President of
India under powers vested in him as Commander in Chief of the Armed
Forces. In terms of Article 53 of the Constitution Part V titled THE
UNION –– all executive powers of the Union are vested in the
President and he is to exercise these himself or through officers
subordinate to him but in accordance with the provisions of the
Constitution. The section carries on to say -
53
(2) “ Without prejudice to the generality of the foregoing
provision, the supreme command of the Defence Forces of the Union
shall be vested in the President and the exercise thereof shall be
regulated by law.”
To
comply with the directive of Article 53(2), separate laws for each
services were formulated based generally on similar British
patterns. For example, the Navy Act came into force in 1957. It is
the law of the land having been passed by Parliament. Similarly the
Army and Air Force have their own Acts. The Judges Advocate General
(JAG) of the three services are competent to interpret disciplinary
and legal aspects of the three services within the provisions of the
Army, Navy and Air Force Acts. In any case even the Court Martial
proceedings presided over by the JAGs can be summoned for a judicial
review by the High Courts.
There
are differences between the legal provisions of the three services
and the Courts Martial procedures are quite at variance. In the Navy
Act it is specified that the President of India is the competent
authority to Court Martial the Chief of the Naval Staff, but in case
of Army and Air Force, the Government –– meaning MOD –– is
the competent authority. This route was however not taken to bring
Bhagwat to book. Bhagwat’s dismissal was processed under the
provisions of Article 310 of the Constitution and Section 15 of the
Navy Act. Defence service officers serve at the pleasure of the
President, who can withdraw this pleasure on the advice of the
Council of Ministers. The Council of Ministers govern vide article
74 of the Constitution which goes on to say:-
74(2)
“The question whether any, and if so what, advice was tendered by
the Ministers to the President shall not be inquired into in any
court.”
So
in effect the President on the advice of the Council of Ministers
can dismiss an officer of the Armed Forces which action cannot be
challenged in any Court. This is a draconian rule indeed and should
be used as a last resort rather than be invoked routinely.
For
Vishnu Bhagwat, Mr George Fernandes in all his wisdom did not wish
to follow the Court Martial route and so resorted to the Cabinet
decision route via Article 310 of the Constitution. Hence no
questions can be asked. Perhaps he feared that some unpalatable
truths would be revealed! He could have executed the deed with
civility for he was not dealing with a railway trade union, Coca
Cola multinational company or Nestle. In Sekhon’s case the threat
to use Article 310 was very much there.
In
such cases of dismissal under Art 310 it is left to the
Government’s discretion to allow pension and other benefits or
even to deny them. In Bhagwat’s case his pension was restored but
he cannot use his rank after his dismissal. Of course the Government
fell but for other reasons!
IDC
therefore believe that there is a strong case to deal with
disciplinary matters of Armed Forces officers, irrespective of their
rank, under the laws made for each Service and the recourse to
Article 310 should be a last resort in the rarest of rare cases.
Even if it is to be invoked then the President must apply his mind
to it and not go by the advice of the Council of Ministers alone.
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