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New
Delhi, 03 November 2005
Reproduced
below is a press release wherein three officers of the Indian Navy
were told that their services –– which are at the "Pleasure
of the President" –– had been terminated under Art 310 of
the Constitution. This article is draconian in scope and in the past
was used whenever the Government was embarrassed to disclose
details.
In
the past it was used for the dismissal of then CNS, Admiral Vishnu
Bhagwat in 1998. According to most Constitutional experts, Article
310 used in this manner, transgresses natural justice enshrined in
the Indian Constitution. In Bhagwat's case the Government was
embarrassed he may go to court and if he were to be tried by Court
Martial, only the President –– the next senior authority to him
in service –– would have had to sit as President of the Court
Martial. That would have been embarrassing no doubt.
The
Army and Air Force Acts do not have such a clause but the Navy Act
was copied from the British, so in a Court Martial, the President of
the Court Martial has to be senior to the officer being tried. In
Bhagwat's case the planning was meticulous by the then Defence
Minister and a RAW aircraft was sent to bring in his successor at
office closing time. At around 1720 on 31st December 1998 the
termination letter was handed over by the Vice Chief and Bhagwat
stood dismissed and his successor took over immediately. QED.
We
are certain that the tradition bound Royal Navy would not have
resorted to such a back door practice and insisted on a Court
Martial, maybe in camera, prior to dismissal. For the simple fact is
that a Court Martial can be conducted in camera, gives a fair chance
to the accused, and would bring out several facts from which lessons
may be learnt for the future, irrespective of how unpalatable those
facts may be. We believe and strongly advocate that a rethink on the
use of Art 310 for dismissals in this manner is necessary and hope
that it would be resorted to in the rarest of rare cases –- much
as the death sentence is.
The
procedure of how Article 310 is to be employed has never been made
clear and in today's day and age why a Court martial is denied to an
officer is not clear. Pandit Jawahar Lal Nehru pushed this article
through, which is a legacy of the British (they do not have a
written Constitution), who had vast spread out colonies and were
obliged to strip an officer of his rank and bring him back to UK to
stand trial. Even America has tried by Court Martial or civil court
all the personnel who embarrassed the USA in Iraq.
It
is reported that this clause was entered into the Constitution,
despite Justice Shah's objections that the principles of natural
justice demand that the President applies his mind to every case.
Pandit Nehru had insisted that he did not want a Presidential form
of Government and so did not want any powers in the hands of the
President –- who is also the Supreme Commander of the Armed Forces
in name. Some Presidents had raised their concern but the present
President being a DRDO head earlier, may have leanings to never
expose short comings in the Armed Forces.
The
natural justice is afforded to the Civil Service Officers who also
serve at the “Pleasure of the President”. Their services cannot
be terminated without an inquiry and it is Article 311 that is
invoked. This subject has been discussed in some detail in a book,
“Admiral Vishnu Bhagwat –- Sacked or Sunk”, by Brig. R P
Singh, a retired JAG of the Army and Cmde Ranjit Rai (Manas
Publications).
Media
has reported that the axe will now fall on the Air Force Officer
involved in this case too. One wonders since the case has taken six
months to decide, whether the officers could have been tried? In
this instance may be the President will give them full pension and
close the case, which could have larger ramifications for national
security or big business interests.
A
Common Law Code for the Three Services has been with the Armed
Forces for almost a decade now but it has not been agreed to, so we
offer this analysis and seek your comments.
"Press
Information Bureau (Defence Wing)
(Government
Of India)
Board
Of Inquiry Establishes Leakage Of Information To Unauthorised
Persons
New
Delhi, 28 Oct 2005
In
May 05, a Court of Inquiry conducted by Air Headquarters established
that an IAF officer had obtained a pen-drive from a retired Naval
Officer, which amongst other data also contained classified
information emanating from the Directorate of Naval Operations. A
Board of Inquiry was convened by NHQ to inquire into circumstances
leading to information security violation/ compromise at the
Directorate of Naval Operations (DNO).
The
Board of Inquiry has established that there has been a leakage of
information of commercial value to un-authorised persons. The Board
has identified the three culpable officers and their specific acts
of omission and commission in the leakage of the information, which
makes them liable for action under the provisions of the
Navy/Official Secrets/ Prevention of Corruption Acts. These officers
are Captain Kashyap Kumar, Cdr Vinod Kumar Jha and Cdr Vijendra Rana.
An
examination of the various acts of omission and commission by the
above mentioned officers revealed that while discharging their
assigned duties in Naval Headquarters, they have collectively as
well as individually compromised the security of classified naval
information and thereby jeopardized the interests of the State. The
above acts of omission & commission can be summarised as
copying/obtaining/retaining/disclosing classified information that
is likely to adversely affect the interests of the State, wrongful
possession and communication of classified information to
unauthorized person(s). They failed to take reasonable care of
information likely to affect the security of the State and enforce
laid down physical as well as information security measures. They
also accepted gratification other than legitimate remuneration.
After
having examined the case in its entirety, under the 'Pleasure
Doctrine' of the President as enshrined under Section 15(2) of the
Navy Act 2005, read in conjunction with Regulation 216 of the
Regulations for the Navy Part II (Statutory), the Central Government
has deemed it fit to dismiss all the three officers from the service
with immediate effect.
Considering
the gravity of the offences, these officers were liable to be tried
by Court Martial. However, since a trial by Court Martial could have
lead to considerable delays, and it was considered that the
continued presence of these officers in service would pose further
security hazards, the Central Government has decided to terminate
their services forthwith.
This
completes the investigation and disciplinary action as far as naval
personnel are concerned. Action as regards civilian personnel
involved is being undertaken by appropriate authorities. Necessary
remedial measures have been instituted Navy-wide to enhance security
of information in general, and of IT-related devices in particular,
to prevent recurrence of such incidents."
In
sharp contrast to the above press release we give below is a press
account of a recent similar happening in USA.
US
Vice-President Dick Cheney has appointed two men to carry out the
jobs formerly held by his indicted chief-of-staff Lewis 'Scooter'
Libby.
Mr Cheney elevated his official government lawyer David
Addington to the position of chief-of-staff. This was because Lewis
Libby the Chief of Staff to the Vice President let out some serious
state secrets of the CIA and disclosed the name of an Agent Valerie
Plame. This shows how USA deals with lapses and Libby was charged
with lying and obstructing justice. Vice President Cheney may be
asked to testify in court. His deputy national security advisor John
Hannah has been elevated to the more senior post, the White House
said. Mr Libby held both positions until he quit the administration
on Friday after being charged over a CIA leak probe.
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