'There is no basis at all for the dismissal'

Print edition : January 16, 1999
Interview with Niloufer Bhagwat.

Niloufer Bhagwat, wife of Admiral Vishnu Bhagwat, is a leading constitutional lawyer. In a lengthy interview to John Cherian on January 9, she said that the dismissal of Admiral Bhagwat was unconstitutional, and defended Admiral Bhagwat and herself against the charges levelled against them by Vice-Admiral Harinder Singh in his "redressal of grievance" petition. Excerpts from the interview:

As an expert in constitutional law, what do you think of the dismissal of Admiral Bhagwat?

In any democracy there is a need to strike a balance between the needs of an individual and the requirement of a degree of regulation to order society. The citizen, while being protective of his or her own rights, will have to be regulated insofar as he or she should not transgress the rights of others given by the same Constitution. In fact, this is the reason why I am so vocal on this issue. Because, after teaching constitutional and administrative law at the University of Bombay and having dealt with so many different cases and issues, this is a case study of a mala fide and arbitrary act of the Appointments Committee (of the Cabinet) which does not even consider the carefully stated reasons of the recommendatory authority - in this case, its own Chief of the Naval Staff - and insists on a decision wholly extraneous to the record and then says that the recommendatory authority is defined by the principles of civilian authority.

In requesting a reconsideration, according to Supreme Court Case Laws, the appointment of such an officer would wreck the norms of an institution. The Supreme Court, in a number of cases in which it was required to consider the recommendatory powers of various authorities and bodies, has held that whenever the Government, that is, either a State Government or the Central Government, is required to appoint individuals or to make appointments on the basis of the recommendations of any authority, the government concerned cannot choose its candidates unless his or her name is recommended by that authority.

In the case of A. Panduranga Rao vs the State of Andhra Pradesh, a three-member Bench of the Supreme Court held in 1976 - and the report is in 1976 (1) Supreme Court Report (SCR), page 620 - that in cases where the High Court has to recommend candidates for appointment to the post of district judge it is not open to the government to choose a candidate for appointment unless and until his name "is recommended by the High Court". It was held to be wrong and incompetent for the government to ask the High Court to forward nominees of the government.

Similarly, in the case of State of Kerala vs K. Lakshmi Kutty and Others, reported in 1987 (1) SCR, page 136, once again it was held that the High Court was to recommend. It was further held that whereas "for good and adequate reasons", the government could request the High Court's recommendations. However, the government could not proceed to make an appointment of its own nominees. It would have to ask the High Court once again to make another recommendation. And the three-judge Bench viewed with concern any attempt of the government to usurp the powers of the High Court to make recommendations in respect of the post of district judges.

In yet another case, reported in 1989 (4) Supreme Court Case (SCC), page 704, it was held by a Bench comprising Justice K. Jagannath Shetty and Justice A.M. Ahmadi that when the Chief Election Commissioner (CEC) is given powers to appoint an officer as his personal secretary and he recommends an officer for the said post - the office of the CEC being a sensitive one - he would require the services of an officer who can handle secret and confidential files and it is absolutely imperative that the CEC should have his choice of appointee, as the post is such that the officer should enjoy the total confidence of the CEC.

In yet another case, Tejpal Singh vs the State of U.P., reported in 1986 (3) SCR, page 428, it was held that since the High Court appoints the subordinate judiciary, members of the subordinate judiciary cannot be subjected to premature retirements or dismissals without the recommendation of the High Court and it is not open to the government to issue an order prematurely retiring judges of the subordinate courts without the recommendation of the High Court.

Therefore there is no basis at all for the dismissal of the Chief of the Naval Staff. There is no basis for the stand the members of the Government and the bureaucracy have taken - that the Chief of the Naval Staff was not ready to appoint Vice-Admiral Harinder Singh as Deputy Chief of the Naval Staff, and therefore he has defied the Government and defied the principle of civilian control. There is absolutely no basis whatsoever for this conclusion as all these authorities have acted in violation of the Constitution, as interpreted by the Supreme Court. The provisions of the Navy Act of 1957 (Statutory Regulations) are similar to those which apply to the subordinate judiciary. Sooner or later the truth will prevail, but sometimes crucifixions take place. It does not matter. Yet there is such a thing as history.

Does the Government have a raison d'etre for the momentous decision it has taken?

The Government does not have the raison d'etre as it does not have the professional expertise or the competence to assess. That is why within a democratic structure, since you have to have various specialised institutions, logically the powers of recommendation are given to those specialised institutions.

Is the recommendatory authority also not bound by certain norms?

The recommendatory authority is also bound by relevant criteria for appointments. There are some posts which are inter-transferable, some posts are promotion posts. The post in question was an inter-transferable post. The seniormost Vice-Admiral was Vice-Admiral Ravi Ganesh, Director-General, Coast Guard. Thereafter you had Vice-Admiral Harinder Singh. How would it look for any Secretary of Government to say that I am entitled to be Industry Secretary? Would that be acceptable to the civil service? Will they promulgate what will be the pecking order among the 40 top civil servants? Harinder Singh anyway was not the seniormost. At any stage, any Vice-Admiral could have been called.

What are the merits of the arguments of the Appointments Committee of Cabinet?

Some people will say, "So what if he (Harinder Singh) has filed a case? The Admiral (Bhagwat) had also filed a case in 1990." It is not because Harinder Singh filed a case that he is disqualified. His statutory complaint is for a redressal of grievance, which an officer is permitted to make under statutory regulations. But he is also confined by certain mandatory regulations, namely that he shall not make false statements, cast aspersions on superior and subordinate officers, which are not relevant to the facts relating to his own case.

Was the timing of Harinder Singh's petition a little suspicious?

The new Government was formed on March 11. It is not without significance that the statutory complaint was filed on March 22. Even before the new Government was in the saddle, rumours were floated by senior officers, now retired, of the Western Naval Command that the moment the new Government came in, Admiral Bhagwat would be dismissed. Many of the officers concerned had joined the Bharatiya Janata Party after their retirement. They all had a vested interest in seeing the Navy Chief out. Harinder Singh's first statutory complaint contains the most lurid and false communal allegations. It says that the wife of the Chief of the Naval Staff is a half-Muslim. He has not mentioned what the other half is. He alleges that the Navy Chief's wife is a member of the Communist Party and has appeared before the Srikrishna Commission. What is the relevance of all this in a statutory complaint?

What about the allegations of communalism levelled against you and the Admiral?

He (Harinder Singh) goes on to say that officers of a denominational agenda, that is, Muslims, are very close to the Admiral and his wife and therefore the Admiral has a hidden denominational agenda to position Muslim officers. The Navy List will show you that in the officers' cadre, there are only ten Muslims. Out of these Muslim officers, no one is of flag rank. All of them are junior officers. The only example he gives is that of the Staff Officer to the Admiral, Commander A.A. Lone. He picks on the promotion of Lone in 1996. Nobody has bothered to find out how this is of relevance to the statutory complaint. He also makes a false statement that the Admiral promoted A.A. Lone. There were five members on the Selection Board.

Harinder Singh goes on to add in his complaint that the Admiral is also anti-Sikh and that he has observed him deliberately making adverse remarks against fellow Sikh officers. The facts are to the contrary. Already the Acting Deputy Chief of the Naval Staff, Vice-Admiral Madanjeet Singh, is a Sikh. The Assistant Chief of the Naval Staff, the First Captain of INS Delhi, the leading ship of the Indian Navy, is also a Sikh. When Harinder Singh went to the Calcutta High Court, many Sikh, Muslim and Christian officers sent individual affidavits to the court stating that Admiral Bhagwat had never indulged in any kind of communalism. Then comes the other lurid allegation by Harinder Singh. He says in his petition that the Admiral made adverse remarks in 1996 against the eighth Guru of Sikhs, and against Sikhism. On the nature of remarks that Admiral Bhagwat made, Harinder Singh's statutory complaint is silent. No complaint exists on record. Is it right for the ACC to foist such a man instead of action being taken against him? Is this really a case of civil versus military control or is this a case in which by any means you get the Chief of the Naval Staff out of office?

What is the real reason behind the Navy Chief's dismissal?

Reports had come from Commodore D.R. Franklin, the Naval Adviser in London, saying that Harinder Singh's family had accepted hospitality in a posh area of London from Suresh Nanda, who owns Crown Corporation, and that his wife was being accompanied by Mrs. D.S. Dagar, the representative of Makalu Engineering and at one time the representative of Crown Corporation in Moscow. Then reports come from Vice-Admiral V. Pasricha, who was then Deputy Chief of the Naval Staff, before Madanjeet Singh took over, that although Harinder Singh had told Naval Headquarters that he would be spending a sum of only Rs. 20,000 for his stay in Moscow, he was actually taking the hospitality of Commodore V.K. Choudhury of Crown Corporation and Makalu Engineering in St. Petersburg. Now, Makalu Engineering is a firm that has been blacklisted by the Ministry of Defence (MoD) and the Indian Embassy in Moscow. No officer is allowed to have contacts with them. But Harinder Singh admits in his second statutory complaint that he stayed with them and that he knew them for 40 years but did not know about the business they were doing.

And what is this officer's conduct in operations? As Deputy Chief of the Naval Staff (Operations) in Operation Leech held off the Andaman and Nicobar Islands, he was supposed to be in charge of the operations but instead he goes on leave and stays home! He gives the excuse that the Commander-in-Chief at that time, Admiral P.S. Das, had given him leave. After his ACR (Annual Confidential Report) was written, he procures a letter from Admiral Das who has since retired, after the incident has taken place, that his presence was not necessary. How can the seniormost officer not be present when military operations are taking place? He was the seniormost officer in the Andamans and he was not there. The ACC still said: appoint the man.

Now as a serving officer, he is giving interviews to the media. I have never seen a serving officer giving interviews to the media, except in the line of duty. He used to boast openly to his superiors that he could get decisions changed in three days by the Ministry of Defence. This is also on record. His clout comes from Crown Corporation and Makalu Engineering and the Akali Dal. The deputy chief of the Akali Dal has said that the Admiral was anti-Sikh and the Prime Minister of the country goes to have dinner with Harinder Singh when he was recently in the Andamans. No restraint of any kind is observed.

It is not simple to get a Service Chief dismissed. It was the first time ever in 50 years that a Chief was dismissed. You have seen the constitutional position. Were these reasons adequate to dismiss the Chief or could one come to a reasonable conclusion that there is a very big tie-up between dealers and suppliers in the armed forces and some officers?

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