The Sukhna Episode- the legal issues

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 to 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 difficult 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.

Maj Gen VK Singh (Retd)