'Justice' in The Armed Forces

An IDC Analysis


New Delhi, 03 November 2005

Reproduced below is a press release wherein three officers of the Indian Navy were told that their services 末 which are at the "Pleasure of the President" 末 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 末 the next senior authority to him in service 末 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 撤leasure 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, 鄭dmiral 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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