Sunday, August 23, 2015

Harsh Mander on Sanjiv Bhatt’s dismissal: there’s nobody to protect whistle-blowing civil servants

The Gujarat IPS officer was given the highest administrative punishment – of dismissal from service – for taking ‘unauthorised leave’. But the real cause may be his allegations against Modi... Bhatt was a whistle-blower, a serving police officer who chose to make extremely serious criminal charges against a man who was then his chief minister, and is now the country’s prime minister. In these circumstances, it was the duty of the country’s constitutional institutions – the UPSC and the higher judiciary – and the senior civil service to protect him from official vengeance. All of these have instead chosen to abjectly fail him, exposing again the enfeeblement and partisanship of our public institutions.

The official action against Bhatt – of dismissing him from service – stands in stark contrast to the fate of other police officers, charged with infinitely more grave and culpable crimes than unauthorised absence from service. These officers charged with extra-judicial killings, including of a teenaged girl and an older woman, are out of prison, freed on bail with the open or tacit backing of the state or central government. Not a single officer has been punished for failing to perform their duty to control the communal carnage of 2002.

In yet another display of vendetta against prominent critics of the prime minister, Gujarat IPS officer Sanjiv Bhatt was served with orders of dismissal from service on August 13, 2015. This is the highest administrative punishment that an officer can face, provided in the rule book for only the most serious transgressions. The charges cited for Bhatt’s dismissal, however, are only unauthorised leave of absence for a few weeks and indiscipline. His dishonourable discharge from service raises many questions about the independence of public institutions and officials, and points to our failures to protect whistle-blowers within the permanent civil services.

In order to shield upright and independent civil servants in the higher All India Services – the Indian Administrative Service and Indian Police Service – from possible malevolent action by the political leadership under which the officers serve, the major penalty of dismissal requires concurrence by both the central and state governments, as well as the Union Public Services Commission. For Bhatt’s dismissal the agreement of the state government and the union Ministry of Home Affairs is unsurprising – even if unfortunate – given his grave charges against the man who is currently the country’s prime minister.

However, what is extremely worrying in Bhatt’s case is the role of the UPSC, which is a Constitutional body set up under Article 315 of the Constitution. According to Bhatt, the first communication that he received from the UPSC was dated July 21, 2015, and this letter informed him that his removal from service was being contemplated. Bhatt sent his reply to the UPSC on August 1, seeking documents and grounds, and asserting his right to defend himself in person before the Commission against these charges. Making allowance for time for the letter to be delivered, it took the Commission barely five to seven working days to arrive at an ex-parte decision without once hearing the officer before dismissing him. It passed the final orders for his dismissal from service on August 13.

Flimsy grounds for punishment 
On the face of it, the main charge made against Bhatt, of unauthorised absence of a few weeks, is astonishingly flimsy as grounds for the highest punishment of dismissal from service. I have known IAS officers who proceeded on unauthorised absence sometimes for years, taking employment overseas or with private companies, but escaped any punishment for years, let alone dismissal. Even if it is accepted that his leave was unauthorised – something that Bhatt contests – a rap on the knuckles with a written warning or letter of displeasure, and leave without pay for the period of absence, would seem a reasonable and proportionate penalty for the alleged misdemeanour.

In reality, the official ire he faces is only because of his audacity to testify against the country’s most powerful man. Sanjiv Bhatt utilised those days of “unauthorised leave” to testify before the Special Investigation Team of the Supreme Court, and Raju Ramachandran, the amicus curiae of the Supreme Court, investigating charges by Zakia Jafri. Zakia Jafri, widow of former MP Ehsan Jafri who was brutally killed along with around 70 others at Gulbarg Apartments in Ahmedabad in 2002, held then Chief Minister Narendra Modi to be the first accused for a “deliberate and intentional failure” to protect life and property and failure to fulfil his constitutional duty.

In Sanjiv Bhatt’s testimony to the SIT (a copy of which he later filed on oath before the Supreme Court), he had charged that late at night on February 27, 2002, after 58 pilgrims had been burned alive in a train compartment in Godhra and the Vishva Hindu Parishad had announced a programme to parade the bodies of those killed, Chief Minister Narendra Modi had called an urgent meeting which Bhatt also attended as an intelligence officer. He charged that Chief Minister Modi “impressed upon the gathering that for too long the Gujarat Police had been following the principle of balancing the actions of Hindus and Muslims while dealing with the communal riots in Gujarat. This time the situation warranted that the Muslims be taught a lesson to ensure that such incidents do not recur again”. He further alleged that Modi “expressed the view that the emotions were running very high amongst the Hindus and it was imperative that they be allowed to vent their anger”.

Failure of institutions
The other officers alleged to be present at the meeting said they had no memory of these instructions by Modi. His driver and a BBC correspondent who was present with him when he left for the alleged meeting however testified that he had indeed proceeded for this meeting. The SIT concluded that Bhatt was not present at the meeting, and that he was an unreliable witness. Raju Ramachandran, the Supreme Court’s amicus curiae, held a different opinion. He questioned how the SIT could rely on the testimony of witnesses who were present at the meeting when the investigation had raised doubts concerning their credibility. He felt that the question of whether Bhatt was present or not in the meeting needed to be tested in court because the evidence available was insufficient to discount Bhatt’s claims. Ramachandran believed that the alleged statements made by Modi, if they were true, were actionable in law and that the veracity of those allegations should also be tested in court.

The official action against Bhatt – of dismissing him from service – stands in stark contrast to the fate of other police officers, charged with infinitely more grave and culpable crimes than unauthorised absence from service. These officers charged with extra-judicial killings, including of a teenaged girl and an older woman, are out of prison, freed on bail with the open or tacit backing of the state or central government. Not a single officer has been punished for failing to perform their duty to control the communal carnage of 2002.

What is pertinent here is not the truth or otherwise of Bhatt’s claims against Narendra Modi. Zakia Jafri’s appeal against the lower court’s order absolving Modi of criminal responsibility for the 2002 massacre is still being heard. What is irrelevant also is Bhatt’s reputation and record as a police officer. What is undisputed is that Bhatt was a whistle-blower, a serving police officer who chose to make extremely serious criminal charges against a man who was then his chief minister, and is now the country’s prime minister. In these circumstances, it was the duty of the country’s constitutional institutions – the UPSC and the higher judiciary – and the senior civil service to protect him from official vengeance. All of these have instead chosen to abjectly fail him, exposing again the enfeeblement and partisanship of our public institutions.