THE
SUKNA EPISODE – THE LEGAL ISSUES
By
Maj
Gen VK Singh
The
Sukna episode – it is not a SCAM,
irrespective of what the media says -
needs to be examined dispassionately, from the legal angle. This is
especially so after the Defence Minister’s
‘advice’ to the COAS to court martial the present MS, Lt Gen Avadesh
Prakash. Before discussing the issue,
let us get some facts right.
Unlike
other Class 1 Officers of the central services, officers of the Armed Forces
are not government servants. In fact, they are the ‘first’ public servants of
the Union. (Their commissions are signed personally by the President).
According
to the Defence Services Regulations, Regulations for the Army, Para 4 (b), ‘The Chief of Army Staff is responsible to
the President through the Central Government for the command, discipline,
recruitment, training, organisation, administration and preparations for war of
the Army.’ (Though the COAS is responsible to the President through Government, it is not the same
thing as to the Government).
The Defence Minister has no power of
command over the COAS. There have been instances in the past
when the COAS has disregarded the advice of the Defence Minister. I am giving
below an extract from the biography of Field Marshal Sam Manekshaw that forms
part of my book Leadership In The Indian
Army – Biographies Of Twelve Soldiers:-
Sam was due to retire in June 1972,
but was given an extension of six months. He was not keen to continue and had
made known his desire to the Prime Minister. However, she wanted him to stay on
and told Sam that he would not be allowed to proceed on retirement. When Sam
told her that he had no intention of staying on and there was no law under
which he could be forced to do so, there was some consternation. Finally
someone found a way out. It was reasoned that if Sam received a direct order
from the President who was also the Supreme Commander of the Armed Forces, he
would have to obey. The President's consent was obtained and his directions
published in the Gazette of India, indicating that Sam would continue to hold
the office of Chief of Army Staff till the President was pleased to dispense
with his services.
A
court martial sometimes benefits the accused officer. In such cases, summary
punishments or administrative action is the preferred option. Under Army Act
84, officers of the rank of major and below can be awarded up to one year
forfeiture of seniority, subject to the
right of the accused to elect to be tried by court martial. In many cases,
officers choose this option. Why? Because it difficult secure conviction in a
court martial, in the absence of strong evidence. In the case of Gen Avadesh
Prakash, all that he is being blamed for is sifarish
(recommendation), which will be
charged under Section 45 (Unbecoming Conduct). Usually, this section is invoked
in cases of moral turpitude, which cannot be proved in the present case. All
that he did was make an improper recommendation. There was no element of
coercion, since he was not the superior officer of GOC 33 Corps, the latter could
have refused to comply with his recommendation.
Coming
to General Rath, the charges against him are even more difficult to prove. As
the GOC, he was vested with the authority to give the NOC. There was no
obligation on him to take the concurrence of the Army Commander, as is being
made out. The bogey about National Security is misplaced. Surely, as the senior
military officer on the spot, he is best suited to decide on the issue. Is the
media more competent to decide this or even the Army Commander or COAS? The
Corps HQ is nothing but an office. It is not really a ‘sensitive’ place, like a
nuclear establishment or missile facility. In fact, Delhi has several places
that are much more sensitive close to civil areas. A high tech facility of the
Army is in Anand Parbat. The British High Commissioner lives within a stone’s
throw of Sena Bhawan, below the offices of the Military Intelligence and Signal
Intelligence Directorates. With the
technology available today, even normal conversations can be picked up from
window pane vibrations.
It
will be extremely to secure convictions through courts martial. Even if the
concerned officers are convicted, they will certainly appeal to the Armed
Forces Tribunal, or the High/Supreme Court, which is likely to set aside the
judgment. According to Para 103 (a) of
the Regulations for the Army, the President may call upon any officer to retire
or resign his commission at any time without assigning any reason. Why was this
option not adopted by the Defence Minister? After the 1962 debacle, the COAS
General PN Thapar was reportedly asked to quit as was the Corps Commander, Lt
Gen BM Kaul. Surely, their actions, which cost us hundreds of lives and
national ignominy, were graver.
21
Jan 2010
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