Friday, 23 March 2018

COURT MARTIAL OF COLONEL HUNNY BAKSHI


VICTORY OF A FEW GOOD MEN IN MILITARY INTELLIGENCE

 At 0030 hours, on 23 March 2018, a General Court Martial declared the case against Colonel Hunny Bakshi to be devoid of any substance to prove any offence against him under the provisions of Official Secrets Act, 1923. That is exactly after six years of physical, mental, professional and social harassment, the honour and justice has been restored back for all those who believed in the organisation called Indian Military Intelligence.

PROLOGUE

"Every time you talk of TSD, you are compromising national security. Lot of things happening on our borders today are happening because a decision was taken to close TSD. …….There are no winners in this battle. India's national security and the reputation of the armed forces are the losers.

Sometime after General V.K. Singh took over as the 26th chief of army staff in early 2010, a unit called TSD (Technical Support Division) was formed. It comprised 6 handpicked officers, 5 JCOs and 30 men and operated out of an unmarked two-storied building within the Delhi Cantonment dubbed the 'Butchery', that was a refurbished slaughterhouse of colonial times. The division was headed by Colonel Munishwar Nath Bakshi, a tall, flamboyant intelligence officer in his early 40s, fondly known as, Col 'Hunny' Bakshi.

“I have done as you have done--that’s what I can
Induced as you have been--that’s for my country” Shakespeare

In early 2012, an Intelligence Bureau (IB) report said the unit had illegally purchased two 'off-air interceptors', portable laptop-sized gadgets costing over Rs 1.5 crore each, that could pick up mobile phone conversations. IB warned that the machines had been deployed in the vicinity of South Block. This led to concerns that they were being used without authorisation to snoop on phone conversations. TSD was at the core of the controversy. In May 2012, TSD stopped functioning, as soon as Singh retired.

 (For those who missed the movie, the fallen hero who inspired it and my earlier blog titled: The case that shook the Military Intelligence in India You can read it on vidulaabhyankar.blogspot.com.)

COVERT OPERATIONS VS OFFICIAL SECRETS ACT

Those who set the fire to the house are left alone while those who sound the alarm are being prosecuted.”

The dictionary meaning of the word “covert” is clear enough to make us understand that these are certain operations of the combat forces about which nobody knows. No body meaning the other Army officials too who are not involved in such secret operations. Also, if one fails or succeeds one cannot claim the credit/blame of any such activity. In short, the combat forces will not even lie/comment about anything to do with any of its covert operations.  The best illustration of this can be the tall claims made by many journalists about the clandestine affairs of CIA in US have never got a single statement from the State ambassadors/ any other government officials.

But, once the cover of a covert operation is broken and the beans are spilled in public arena, it becomes an offence punishable under the Official Secrets Act, 1923. In layman’s terms, the Official Secrets Act deals with all kinds of offences related to loss, destruction, and mishandling, withholding information of paramount importance (classified nature) to the nation. In case of personnel detailed to carry out duties related to Intelligence units, there is always a fear of being disowned and discredited if found guilty under the provisions of Official Secrets Act.

This can be better illustrated by taking a look at the way TSD and its personnel were blamed by a few leading newspapers using the same Intelligence which they had gathered risking their lives, to use against the enemy. That day, the nation lost its human and technological assets in Intelligence and a Few Honourable Men:
·        siphoning huge amounts of Intelligence funds to bribe ministers to bring down a democratically elected state government,
·        instigating civilian families to file PIL/RTIs through NGOs to question the authenticity of encounters done by Army and some previous COAS in the J & K area
·   tapping all telephonic/mobile conversations taking place in other than Raksha Mantri’s office.
But, in reality the charges for which Col Hunny Bakshi was being Court Martialled were revolving around a few classified CDs whose authenticity could not be established till the end.

LEGAL BATTLE OF COL HUNNY BAKSHI

I couldn’t help myself from repeating a few lines from the Hollywood court room drama titled A Few Good Men to draw attention to the fact that sometimes reality is more ghastly than fiction. In this movie, the uniformed lawyer and the judge clearly validate that there are only two types of people in the court: those who respect the truth and those who flout it. And that nobody can throw their military weight on the judges and the prosecutors if you are on the right side. The whole effort is to preserve the honour in the Marines by establishing the truth and punishing the guilty.

Col. Jessup: [to Judge] I don't know what the hell kind of unit you're running here.
Judge Randolph: And the witness will address this court as "judge" or "your honor." I'm quite certain I've earned it. Take your seat, Colonel.
Col Jessup: You don’t know anything about running a nation. Good night, son.
Kaffee: Don't call me son. I'm a lawyer, and an officer in the United States Navy. And you're under arrest. The witness is excused.
But, the disciplinary proceedings which went on with the explicit orders from top Army Officials have put a question mark on the ability of Armed Forces to maintain judicial dignity and decorum. It has further failed to inspire any confidence in its own people about solemn keeping of public justice. Let’s take a look at a few Procedural Lapses in case of the Court Martial of Col Hunny Bakshi which will further amplify my point.

1. Although the whole matter revolves around the loss/withholding/destruction/misuse of classified information/ finances and resources which could jeopardise the security of the nation, the media could not be stopped from producing exact photographs and /or information.
2.       While the honest CO was made to undergo all kinds of disciplinary proceedings, not even a single complaint/ FIR was lodged against even a single media house/reporter.
3.       People blame the then COAS, Gen VK Singh about being too vocal about such sensitive matters, NO (R ) NO effort has been made to find out who were the South Block officials (in uniform/civilians) who media claimed made these highly classified documents available.
4.       Flouting of Principles of Natural Justice: Every person subject to Army Act is also eligible for being tried under principles of natural justice such as being heard by the competent disciplinary authority, being able to go through all the relevant documents and evidence, being able to examine and cross-examine the witnesses. As a result the doctored CDs were never sent for forensic analysis, composition/quorum of COI, GCM were not completed, witnesses were never produced in the Court of Inquiry and no evidence (either CDs or statements of the witnesses) was ever presented for cross-examination of the charged officer.
5.       No effort on Competent Disciplinary authorities to keep aside their prejudices and connections/relations inside the courtrooms: From whatever information is available in the reports published in various newspapers, it seemed that there was a collective consciousness to deny any and all of the rights under Rule 22 of Army Act, Rule 180 of Army Regulations, to the charged officer. The then GOC Delhi Area, the various Commanding Officers, Presiding Officers and other member officers of the BOO, SOE and  COI could not let their conscience rule over their prejudices/ vindictive interests to shame Gen VK Singh through his men.

HONOUR VS MALICE

“We use words like "honor", "code”, and “loyalty.
We use these words as the backbone of a life spent defending something.”
A Few Good Men

Six years was a very long time for any human being to break down and spit venom against all those who were trying to prove him an inefficient, boot-licking ambitious officer who was helping the General to sort out his enemies within the Army. But, not even once has Col Hunny Bakshi or his so-called team displayed any such cowardly behaviour either to his superiors or to the media. He fell sick but still followed orders and waited for the disciplinary proceedings to complete. He could have approached media but he chose the gentleman’s way to battle it in the court room.

“That lowliness is young ambition’s ladder
Whereto the climber-upward turns his face.” Julius Caesar, Shakespeare

But it is very unfortunate to see the unethical behaviour of the so-called brother officers who were responsible for the conduct of disciplinary proceedings against Col Hunny Bakshi. In order to fulfill the desires of the top brass and to save their own career progression, every one of them seemed to be in a hurry to prove the officer guilty from the very beginning. Even when they all knew deep in their hearts the rules and provisions of Army Act being flouted, they continued to do so to please the top bosses. What was really alarming was this black spot between the personal and collective conscience of all the officers involved. 

POINTS TO PONDER: (Pertaining to Legal and Intelligence Branch in Armed Forces)

“Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.”      Theodore Roosevelt
1.       Whenever any officers are imparting any judicial/quasi-judicial matter, they must not give any hints of exerting/acting under/succumbing to any superior officer’s command or influence. It would be highly immoral to force the weight of one’s military command upon the officers chosen from amongst his favourite subordinates to serve as members for the disciplinary proceedings.
2.       There is a noble tradition in the Armed Forces governing the discharge of judicial duties of officers which says: Even the highest officer in the Force doesn’t discuss advice or comment about the outcome of any matter being considered through judicial process. This tradition needs to be revoked and practiced at all levels to uphold the spirit of fair play and righteousness.
3.       A code of ethics should be drawn up in detail to deal with cases related to Official Secrets Act so that the legal rights of personnel detailed for conduct of covert operations may not be violated in the name of lame/ fabricated charges.
4.       There should be some method to ensure transparency of the complete judicial proceedings. This could also mean delineation of judicial powers from the commanding authorities. If implemented in the right spirit, this would result in giving more independence to the JAG branch in all three arms of Indian defense forces and reduced number of armed personnel approaching the civil courts.

Concluding Thoughts

What we hold sacred is honor, justice, and glory……Fighters are among us from many lands, with many gods and many beliefs. Believe as you will. “Janet Morris

    1.     With respect to Judicial Branch in armed Forces: The goal of achieving an effective and trustworthy judicial system which balances justice within the environs of disciplined fighting forces is not a UTOPIA. It can become an achievable goal as long as any trace of bias, preference or malafied intentions are not allowed to permeate through the glorious organisations called Indian Armed Forces. Similarly, the efficacy of disciplinary proceedings can be maintained only as long as their verdicts are perceived to be just and fair in letter and spirit. Any trace of malice and prejudice will erode the faith and confidence all uniformed personnel and their families have in such a judicial system. This will also have a snowball effect as everyone would be forced to move to civil courts to challenge every single decision made by the GCM/SGCM/AFTs.
   2.     With respect to Military Intelligence officers: Armed Forces Officers are courageous because they love their country and believe they have a duty to fight for it. Their patriotism stirs them to courage because they believe their actions can tangibly benefit their country. But if this trust is broken by their own superiors who are supported by equally ambitious politicians and money-minded media persons, this rare breed of trained and capable “patriots” will become extinct. It is time that we understand the loopholes in existing rules and systems and try to replace them with viable solutions to foster the Intelligence Organisations in India.   
   3.     With respect to fostering civil-military relations: The problems in the system are caused by the defects of human nature. Peace and security are threatened by the jealousy, shortsightedness, and cowardice a few men and their leaders. Democratic countries therefore can only last as long as the nation remains more important than any one ruler. It seems impossible for any democracy to stave off this danger indefinitely. However, this does not necessarily mean democracies are bad. No regime in the history of the world has been able to last forever. The important question to consider, therefore, is not whether nations can last, but what kind of government and armies they produce while they last. The preservation of the nation requires the armies to remain loyal to the nation more than to any one man or political party. 

EPILOGUE

Many may very well continue to ask why more value is placed on technicalities of a law than on a man’s flesh and blood life, especially when there is any amount of “doubt” at all regarding his guilt or innocence.” Aberjhani


 In my earlier blog on this topic, I had said that particularly in this case the real life doesn’t have a “Happy Ending” to match its reel life version. But with the recent closure of the Court Martial proceedings against the AIYAAR, the real life Gentleman has restored the faith that the nation and its people have in the Honour, Justice and Intelligence of the Indian Armed Forces.