India's Dreyfus case

Print edition : January 30, 1999

Neither A.B. Vajpayee nor George Fernandes - who had made up his mind on the ouster much earlier - will be able to live down the monstrous wrong they perpetrated in dismissing Admiral Bhagwat.

A. G. NOORANI

ALFRED DREYFUS, a Jewish captain in the French Army, was arrested in 1894 on suspicion of selling military secrets to Germany. He was condemned, stripped of his rank and sent into exile. In 1897 the novelist Emile Zola wrote three articles for Le Figaro and, later, the famous open letter to President Felix Faure, J'Accuse (I accuse), for which Zola was found guilty of defamation of the court-martial and sentenced to a year's imprisonment and to a fine. Dreyfus was released in 1899; his innocence was established in 1906 and he was reinstated in the Army. Nonetheless, "the Dreyfus affair has not lost its hold on the French imagination," as The Economist wrote (December 12, 1987) a century after "what is still the greatest scandal in modern French history."

Injustices leave scars on the minds of men and damage institutions. Neither Prime Minister Atal Behari Vajpayee nor Defence Minister George Fernandes will be able to live down the monstrous wrong they perpetrated in dismissing Vishnu Bhagwat from his post as Chief of the Naval Staff (CNS) on December 30. The strong expressions of censure by men who once distinguished themselves in the armed forces is an accurate reflection of what many still in uniform must be feeling. Opinion in the press and public life has overwhelmingly disapproved of the action.

The scare of challenge to civilian supremacy over the armed forces was created dishonestly to depict the victim as villain and deflect popular indignation from the wrong-doers to the wronged.

Every member of the armed forces is aware of the provisions of Article 310(1): "Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President..." Every sailor is aware of Section 15 of the Navy Act, 1957: "(1) Every officer and seaman shall hold office during the pleasure of the President (2) Subject to the provisions of this Act and the regulations made thereunder - (a) the Central Government may discharge, dismiss or retire from the naval service any officer or seaman..."

There must be strong reason for exercising such awesome power; dire urgency for its immediate use; and nothing less than national security for avoiding the process of natural justice to which even the lowliest ranks in public service are entitled.

Not one fact has been cited this time to establish any of these. Every one of Fernandes' assertions has been proved to be false. For instance, on January 1 he claimed that Sharad Pawar offered to help out as differences between the Ministry of Defence (MoD) and the CNS mounted. "But three days later Mr. Pawar told me that there was no way out" (The Times of India, January 2, 1999). Pawar refuted this categorically. He said: "I informed George Fernandes of those discussions. But I wish to say emphatically that I at no point said the discussions had broken down. In fact my sentiments about the issue at that stage were quite optimistic." (Frontline, January 29, 1999; emphasis added, throughout).

Fernandes had decided in August 1998, if not earlier, to secure the CNS' ouster. That was well before the decision of the Appointments Committee of the Cabinet (ACC) on December 9 to appoint Vice-Admiral Harinder Singh as Deputy CNS, to which the CNS objected. It was on August 28, reportedly, that Fernandes complained to Vajpayee that the CNS was "not amenable to civilian control". What had he done to deserve this grave charge?

THE mala fides emerge all too clearly when one reflects on the conduct and fate of two persons the Defence Minister backed against the CNS - Defence Secretary Ajit Kumar, and Harinder Singh. Ajit Kumar was transferred out of the Ministry the day the CNS was sacked, only for cosmetic reasons. No notice was taken of two unique documents each of which rendered that course imperative much earlier.

One was a judgment of a Division Bench of the Delhi High Court on appeal dated June 1, 1998 in which strictures were passed on the Defence Secretary personally in explicit terms. "In the note dated 1st May, 1998 which was put up by the Defence Secretary before the ACC for approval of extension of the upgradation of the post of Asstt. Chief of Air Staff (Logistics) where Air Vice-Marshal S. Raghavan was accommodated, it was not disclosed that in the meanwhile the judgment of this court dated 23rd March, 1998 had been pronounced.... Only one sided picture was placed before the ACC." The offence was repeated in another note for the ACC on May 28, 1998 with the result that its approval "was obtained without disclosing the correct facts." Ajit Kumar thus misled the ACC.

No less damning and unique is the joint protest at his conduct by all the three Service Chiefs to the Defence Minister dated September 8 ("a negative and unsupportive attitude"). This was sent after their failure to have an audience with Fernandes "for the last four days".

What has come to light recently is shocking. The Hindustan Times reported on January 16, 1999 that the MoD had "directed the three Service chiefs not to take action on intelligence reports on gun-running and other illegal activities in the Andaman seas without the prior permission of the Government. The Service Headquarters received the instruction on July 27, 1998 from the Defence Secretary and Defence Minister George Fernandes is in the know of it.

"This directive impinges directly on India's internal and external security considerations. According to sources, at least three shipments of illegal arms and ammunition, including two shiploads meant for the NSCN (I-M), PLA and NLFT, have crossed the Andaman seas after the inexplicable order."

SPECIFIC intelligence had been received from the Indian Ambassador in Yangon regarding vessels carrying weapons, arms, et al, to Cox's Bazaar through the Andaman seas. The letter said the headquarters could also receive separate military intelligence on the shipment. There follows, in direct quotes: "However, keeping in mind the sensitivities involved, it had been decided that no precipitate action on such intelligence report is to be taken. Service Headquarters is not to act on any intelligence relating to gun-running and other illegal activities in Andaman seas without the prior approval of the Government."

Granted that Indian vessels had entered Myanmar's waters while chasing trawlers carrying arms to Cox's Bazaar via St. Martin's Island, instructions could have cautioned against entry into Myanmar's waters, not interception outside them. The correspondent added: "On August 8, 1998, Mr. Ajit Kumar dashed off another letter to the Service Headquarters. After the Director-General Military Operations (DGMO) raised some queries, the original order was slightly modified. It said that if the vessels carrying arms and shipment entered India's exclusive economic zone, the Armed Forces could take action."

On January 18, The Times of India had an editorial whose forceful style suggested the authorship of its consulting editor, K. Subrahmanyam: "In view of the specific date cited and the text quoted, these press reports appear credible and need to be clarified by the Government of India. Such a clarification has become absolutely essential in view of the allegations which have come to the fore in the Admiral Vishnu Bhagwat case about the connections, operations and influence of arms dealers. The Defence Minister is already on a weak wicket because of the challenge to his claim that Adm. Bhagwat had not told him about the connection between the arms lobby and certain naval officers. It has since emerged that Mr. Fernandes had expunged reference to an arms dealers' connection from the file of Vice-Admiral Harinder Singh without any reference to the then Navy chief. The present allegations, which relate to the same Andamans commands, thus assume particularly grave implications." It rightly inferred that "no bureaucrat would have issued such an order without the approval of the Minister concerned." How did Ajit Kumar come to enjoy the confidence and backing of George Fernandes despite judicial strictures and protests by all the Service chiefs?

Even more inexplicable is the indulgence shown to Vice-Admiral Harinder Singh. His cheap comments on the CNS' wife, Niloufer Bhagwat, a lawyer of 27 years' standing, ensure him undying notoriety. They figured in his Redressal of Grievances letter of March 23, 1998 addressed to his immediate superior, the Flag Officer C-in-C, HQs. Eastern Naval Command, Visakhapatnam - "a half Muslim, card-carrying member of the Communist Party... " A former Defence Secretary, N. N. Vohra, wrote: "If he has made the reported comments on his Chief's wife, then for this reason alone his future does not lie with the Navy - the communal virus must not be allowed to take root in the Services and such disordered conduct at senior level must be harshly put down." (The Indian Express, December 24, 1998).

The law itself mandates that Section 184 of the Navy Act empowers the Government to make Regulations which are then placed before Parliament. They have the force of law. Parts II and III of the Regulations are made under the Act. Part II is entitled the Navy (Discipline and Miscellaneous Provisions) Regulations 1965 while Part III is entitled the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations, 1963.

There are strict norms for making complaints which can be ignored only at peril. Regulation 238(1) of Part II says: "Complaints shall be confined to a statement of facts complained of and to the alleged consequences to the complainant himself." It cannot cover wrongs to others. Para (4) adds: "It shall be an offence against good order and naval discipline to make a complaint in terms which comprise language or comments that are disrespectful...except insofar as such language or comments are necessary for an adequate statement of facts."

Regulation 240 says: "Except as specifically permitted in these Regulations, no officer or sailor shall make remarks or pass criticism on the conduct or orders of his superiors which may tend to bring them into contempt."

The language of Regulation 238(4) - it shall be an offence against good order and naval discipline to make a complaint in terms ..." - is lifted from Section 74 of the Act which spells out the consequences of the offence: "Every person subject to naval law who is guilty of an act... to the prejudice of good order and naval discipline, not hereinbefore specified, shall be punished with imprisonment for a term which may extend to three years or such other punishment as is hereinafter mentioned" (that is, in other aggravating conditions). For breach of the Act or regulations not otherwise provided for, the punishment as may extend to two years (Section 68).

Thus, Regulation 238 renders it an offence for an officer to make a complaint that contains (a) opinions as distinct from "a statement of facts" (b) facts or opinions concerning anyone else but "the complainant himself" and (c) language that is "disrespectful or insubordinate or subversive of discipline." Section 68 applies to (a) and (b); Section 74 to (c). All three are criminal offences. Extracts from Harinder Singh's letter do scant justice to its character.

THE very first paragraph constitutes an offence under all those three heads. "He (the CNS) is disturbing and distorting Personnel policies in order to bring up officers whom he considers to be his 'constituency', in a manner that is little different from that in the political arena, in disregard to the laid down rules and regulations and fair play. Some of the officers being nursed are of doubtful comparative professional capability, pliable and given to sycophancy, at the expense of officers who are upright, express their views without fear or favour, are staunch nationalists and work in the best interest of the Navy and the country. With the command of front line ships passing in to the hands of the not so qualified officers, moral fiber of the officer corp is being sapped and national security and safety is being endangered. You cannot be unaware of the near mutiny in the Air Force, stemming primarily from poor man management and capricious personnel policies."

Use of the word "nationalists" explains the references to the "half-Muslim" and "Communist."

Conscious of the wrong, Harinder Singh unctuously adds: "In accordance with Regulations Indian Navy (Statutory), Article 235 to 240, I am required to confine my complaint to issues as they apply to me and hence I cannot cover other personnel. As a true and loyal soldier I will abide by the laws of the land, even though my heart bleeds for those who suffer silently, unknowing why and how they suffer, because Personnel Branch records are not available to them. I will therefore confine myself only to those cases in which I was involved in one way or another. I will not mention or bring before you cases of capricious actions concerning the Naval community at large, at this forum."

Continence is abandoned and Harinder Singh in the paragraphs that follow parades a host of others allegedly aggrieved, in language that reeks of insult. Is this a statement of fact or a libellous opinion: "From the foregoing it would be obvious that Adm. Bhagwat has with his acts of omission and commission created circumstances causing grave harm to Naval personnel policies, promotions and placements adversely affecting the future of the Navy, has an objective to rid the Navy of senior officers he finds inconvenient because of their staunch nationalism, strategic view and integrity and encourages morally pliable and not so professional officers to man front line ships and units. He is encouraging factionalism in the Navy thereby adversely affecting national security." The reliefs claimed go beyond redressal of personal grievances - "discretionary powers of the CNS should be curbed."

What is one to say of a Prime Minister, a Raksha Mantri and a Defence Secretary who not only ignore this wilful breach of the law, such crass insubordination in the Navy by an officer of high rank, but proceed to reward him by appointing him as Deputy to the man whom he had libelled with impunity?

The Vice-CNS, P. J. Jacob, issued a show-cause notice to Harinder Singh on April 30, 1998 citing chapter and verse; each offending line read with the pertinent provision of the law. Harinder Singh moved the Calcutta High Court to quash the show-cause notice. On June 10 the petition was dismissed. In appeal the CNS straightaway said that he would "have nothing to do with any matters relating or arising out of the complaint." On June 23, a Division Bench hearing the appeal said: "Insofar as the second contention of the appellant regarding his being posted as a Principal Staff Officer in Naval Headquarters is concerned, we are not at all impressed. We have no intention whatsoever of issuing any direction regarding the posting of the appellant. This is a matter purely for the appropriate competent authority to decide."

THE court having left it to the MoD "to take appropriate action in the matter," one would have thought that the MoD would have pressed for a reply to the show cause notice. Instead, it aborted the proceedings and condoned the breach. Remember, if the Service chiefs took the unusual step of writing to Fernandes about the Defence Secretary on September 8, their bitter experience must have begun much earlier. It would appear that already by July Fernandes and Ajit Kumar had begun plotting against the CNS.

Six events in August brought matters to a head. None of them reflected the CNS' "insubordination". They show the Raksha Mantri and his Secretary closing in for the kill. First came "the Andaman episode", next, on August 12, the decision to expunge the adverse remarks by the CNS in two ACRs of Harinder Singh "after considering the ROG applications dated March 22, 1998 and April 13, 1998." To condone a subordinate's document abusive of his superior is to encourage him and to notify the superior that he does not count for much. The third and fourth events were Niloufer Bhagwat's anguished letter to Fernandes (August 13) and the Vice-CNS's letter to the MoD (August 14), requesting the Minister to "review" the expunction, after citing evidence in support of the adverse remarks. The expunction had duly found its way to the press. Fifthly, the Vice-CNS wrote to Fernandes pointing out Ajit Kumar's violation of the Rules of Business, by referring to the Finance Ministry the case of the air defence ship despite the Minister's approval. Lastly, on August 28, the CNS filed an affidavit in the Calcutta High Court.

On the same day, Fernandes wrote to Vajpayee accusing the CNS of insubordination. There is a give-away phrase in an article based on Fernandes' version. He "found nothing objectionable about Singh and wondered why Bhagwat was so set against him." This reveals a lot more than the writer intended. If Fernandes saw "nothing objectionable" about Harinder Singh's notorious letter of March 22, it was because he was now set to oust the CNS by foisting on him a Deputy who had libelled him.

One document exposes the shabbiness of the manoeuvre. It is an order dated October 6 signed by R. P. Bagai, Joint Secretary, MoD, addressed to Harinder Singh with a copy tothe Vice-CNS. It read thus:

"The Central Government has received the reply dated 17-8-1998 to the show-cause notice dated 30-4-1998 issued by NHQ from Vice-Admiral Harinder Singh.

"Keeping in view the directions of the Calcutta High Court dated 23-6-1998, the Central Government has examined the reply to the show-cause notice furnished by the officer. After careful consideration of the relevant records, the reply furnished by the officer and the unqualified apology tendered by him, the circumstances in which the officer was placed and his past record, the Government has decided not to proceed further with the matter and the case is hereby closed."

The date of the apology is not given. Neither the CNS nor any of the others affected were ever shown the "apology".

Admiral Vishnu Bhagwat and Niloufer Bhagwat outside the Navy House, New Delhi, the official residence of the Chief of the Naval Staff, before they left for their new home in Mumbai.-S. SUBRAMANIUM

EVIDENTLY, neither the Prime Minister nor the Defence Minister cared to resolve the matter by talking to the CNS. On December 9 the ACC decided to appoint Harinder Singh Deputy CNS, in accordance with the indulgence consistently, calculatedly shown to him. What was the motive for this? That offences under the law were condoned was bad enough. Now the ACC was flouting Regulation 134 (of Part III). It says: "The appointment of officers of all branches of the rank of captain and above shall be made by the Government on the recommendation of the Chief of the Naval Staff." The italicised words recognise need for professional appreciation of the worth of the appointee and represent a curb on the exercise of arbitrary power by the executive. They do not make the CNS a despot. A candidate would be entitled to ask the Government not to accept the recommendation. The Government will be free to reject it. But it will not be free to appoint any one without his recommendation, either. It will invite him to propose other names. This process has been practised in appointments to the Supreme Court and High Courts for half a century besides those in all the three wings of the armed forces.

Regulation 134 was not drafted by the Navy. It was drafted by the Government. Its lawyers were well aware of similar expressions in the Constitution and in the Representation of the People Act, 1951. Article 233 of the Constitution provides that if a District Judge is to be appointed from the Bar he (or she) must be an advocate of at least seven years' standing and "is recommended by the High Court for appointment." In contrast, if he is already in service, "consultation" with the court will suffice. The Supreme Court ruled in 1966 that "the Governor can only appoint advocates recommended by the High Court." For "the High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the 'judicial service' or to the Bar, to be appointed as a District Judge."

If they disagree, Justice A. M. Ahmadi ruled in 1993, there must be "an effective interchange of viewpoints" between the executive and the High Court in "a genuine attempt to iron out the creases before a final decision is reached." He approvingly referred to an earlier ruling of the court in 1986 which enjoined such a dialogue adding, however, that "the Government failed to appreciate that the High Court plays a decisive role in the matter of appointment of District Judges."

A proviso to Article 324 (5) stipulates that an Election Commissioner, other than the Chief Election Commissioner himself (who is removable only by impeachment) shall not be removed from office "except on the recommendation" of the CEC. The Supreme Court ruled - "not otherwise."

But the analogy more to the point is the Election Commission's power to fix the dates of elections. The President, by notification published in the Official Gazette, calls upon the elected members of State Assemblies to elect members to the Rajya Sabha or "all parliamentary constituencies to elect members" to the Lok Sabha. In each case his power is circumscribed. He can do so only for such date or dates "as may be recommended by the Election Commission." This is required by Sections 12 and 14 of the Representation of the People Act, 1951. Sections 15 and 16 contain identical words restricting the Governor's powers in respect of polls to Legislative Councils and Assemblies.

An attempt was made by Rajiv Gandhi to override this. He sent the Prime Minister's Principal Secretary, B. G. Deshmukh, to the then CEC, R.V. Peri Shastri, on October 17, 1989 to convey his imperial desire to hold the general elections on a particular date "and that the announcements in that behalf should be made by the Commission forthwith and before 2 p.m. on that day, in any case." As the Supreme Court noted, this was done "barely 24 hours" after the appointment of two Election Commissioners. Predictably, Peri Shastri refused to comply. As predictably, the two E.Cs supported Rajiv's demand. Peri Shastri rightly took his stand on the language of Section 14 of the Act, of 1951.

Words such as "as may be recommended by the Election Commissioner" or "recommended by the High Court for appointment" or "on the recommendation of the Chief of the Naval Staff" are not words of advice. They are conditions attached inseparably to the power and are curbs on the exercise of arbitrary power.

If the ACC's decision on December 9 to ignore the CNS' recommendation is valid, there is nothing to prevent the Governor from ignoring the High Court's views or the Government of India from treating the CEC in the same manner that Rajiv Gandhi sought to do. Who is threatening "the established structures of democracy", Vishnu Bhagwat or Atal Behari Vajpayee, George Fernandes & Co.?

FACED with an Order which is manifestly violative of Regulation 134, what was the CNS to do? Obey an illegal order, a practice which the Shah Commission criticised? In a letter to The Times of India (November 11, 1992), B. G. Deshmukh, who was Cabinet Secretary in 1987 during the tussle between President Zail Singh and Prime Minister Rajiv Gandhi, claimed that he had sent a message to the President: "I would not sign and issue any notification as it would be unconstitutional. The Cabinet Secretary signs the Gazette notification regarding the appointment of a Prime Minister and the constitution of the Council of Ministers. No Cabinet Secretary has any right to sit in judgment on the validity of an order by the President. Or, for that matter, by the Prime Minister. The Cabinet Secretary's role here is purely ministerial. Not so the CNS' under Regulation 134. He has to decide whom to recommend. If Regulation 134 is flouted he has a right to refuse compliance. The principle Deshmukh enunciated is fully applicable to him, inapplicable though it was to him as Cabinet Secretary.

But it did apply to him in 1989 when, as Principal Secretary, Rajiv sent him to the E.C. to dictate the dates for the polls and abdicate its statutory duty. Why did Deshmukh comply then? The civil servant is no errand boy.

There is a saying that "truth will be out, even in an affidavit," a statement on solemn affirmation. An affidavit was filed in the Delhi High Court in April 1998 by R. K. Kalia, Under-Secretary in the MoD, on behalf of the Union of India, a legal entity which survives departures and demises of the politicians in power. It was in the case filed by Lt. Gen. R. S. Kadyan claiming promotion as Army Commander.

The Union of India told the High Court on solemn affirmation as recently as April 1998 that this appointment "is approved by the Appointments Committee of the Cabinet based on the recommendation of the Chief of the Army Staff who makes his assessment of the officer based on merit-cum-suitability for the post." This is exactly what Regulation 134 provides. This was not a solitary statement in paragraph 2 of the affidavit. It formed the core of the Government's stand, repeated in successive paragraphs: "The COAS have to perform his statutory duty of selecting the suitable and meritorious officer keeping in view the requirement of the office of the Army Commander" (Para 10B). Regulation 134 is also a statutory provision and the CNS' recommendation is a statutory imperative. An appointment without the recommendation is illegal per se.

It is utterly false to say that Vishnu Bhagwat challenged civilian supremacy when faced with such an order. His first reaction was to send a note "respectfully submitted" to the Prime Minister, the Home Minister and the Defence Minister. It set out Harinder Singh's record, the course of the proceedings, and details of the "highly insubordinate language" he persistently used. Disciplinary proceedings against him were pending before Flag Officer C-in-C, Eastern Naval Command. The CNS could not trust such a Deputy. The order "is therefore unimplementable." On December 28 he sent a Note to the Cabinet Secretary forwarding documents in support and clarifying his remark: "It is respectfully reiterated/ clarified to the Honourable Members of ACC, through the Cabinet Secretary, that the Chief of Naval Staff has never once stated that the directions of the ACC will not be implemented. What the Chief of Naval Staff has stated in his Note No. CNS/0202 dated 10 Dec. 98, is that in this particular case they are unimplementable, as the inputs put up to the Appointments Committee of Cabinet have misled the Hon'ble members of the ACC, as to the facts and the provisions, and the ACC has regrettably not been informed nor has it been brought to their notice that the proposal in respect of this officer (Vice Admiral Harinder Singh) is violative of the relevant/ basic features of the Constitution of India, Navy Act, 1957, Navy Regulations Part II (Statutory), Judgements and directions of the Hon'ble Supreme Court 'with respect to a recommendation' as also Prevention of Corruption Act."

This is not the language of insubordination, least of all a challenge to civilian supremacy. It is no different from a civil servant pointing out to a Minister that a particular order violates the law and is therefore "unimplementable". A few days later, sensing that he might have been misunderstood, the CNS clarified that he had never said that it would not be "implemented". Only a few weeks earlier, in an address to the Combined Commander's Conference on October 26, the CNS had said: "The armed forces have, through their blood, demonstrated both their fealty to the Integrity of India, as well as their commitment to the Constitution and the principle of civil control by Cabinet within the democratic framework and the law of the land. This vital principle of civil control is equally applicable to the bureaucracy as it is to the armed forces."

Memories of Defence Secretary Ajit Kumar inspired the last sentence. He was but a pawn, discarded when he had served the politicians' purpose. Harinder Singh's future at Naval Headquarters appears bleak; his appointment seems "unimplementable". Vishnu Bhagwat was dismissed in these circumstances. Every pretext trotted out since has been proved a palpable lie - "consultation" with the Opposition, "running down RAW", direct protest to the Pakistan High Commission, the "threat" to Vice-Admiral Santosh Kumar, and the rest. The latest is a dark reference to "the naval version of the Agni missile" with the pontifical claim "we would rather lose the PR battle than win it by compromising national security". UNI quoted Fernandes' statement under a New Delhi, September 6 dateline - he has confirmed that India has begun developing 'Sagarika', a missile which can be launched from a ship or submarine. Informed writers have commented on Sagarika often enough.

The spurious nature of the charges suggests that "there is something more than what meets the eye" as the former Air Chief Air Marshal La Fontaine remarked on January 2: "The thing stinks." As the immortal Faiz wrote: Woh baat saare fasane me jiska zikr na tha/ Woh baat unko bahut nagawaar guzri hai (The subject that never figured in the entire discourse/ That is the one that displeased her the most). Some day, sooner rather than later, the truth will be out.

A future Government should pronounce it a wrong and render to Vishnu Bhagwat the honour and justice that are justly his due.

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