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Showing posts with label Army. Show all posts
Showing posts with label Army. Show all posts
Wednesday 2 November 2022
Monday 31 October 2022
Pakistan: Ironies of Liberation
by Najam Sethi in The Friday Times
Will November prove to be the cruelest month of all? It all depends on the answers to some burning questions. Will the COAS, General Qamar Javed Bajwa, go home on 29th November, 2022, as he has pledged several times, or will some extraordinary development “compel” him to stay on? Will Imran Khan’s long march of thousands end with a whimper or a bang (literally)? Will Imran Khan and Shehbaz Sharif enter into negotiations to end civil strife by setting a mutually acceptable date for the next general elections? What role will the Chief Justice of Pakistan (CJP), Umar Bandial, play in mediating or exacerbating political conflict?
With less than one month to go, General Bajwa’s departure is clouded by the reluctance of the PDM government to announce his successor. Just as rumours abounded earlier about Imran Khan’s offer of an extension to the COAS in exchange for help in defeating the vote of no-confidence against him launched by the opposition in March – now proven true – it is no secret that the PDM leadership would like to scratch his back in exchange for help in warding off the looming threat from the PTI. Even Imran Khan has suggested that if the PDM government can be packed off this month and caretakers installed, General Bajwa may stay on as COAS until after the elections have returned a new government to office. Thus, despite his avowed “apolitical” stance, if push comes to shove during the PTI’s long march, it is not inconceivable that General Bajwa may be “compelled” to step in, pry apart the two warring sides, knock some sense into them and gain an extension in tenure by virtue of his “good deed”. That would open the door to an early election rather than a late one. Under the circumstances, CJP Bandial might see the wisdom of approving another extension for General Bajwa until a new government is installed after the elections.
Much will therefore depend on how Imran Khan’s long march pans out in the next week or two. It has begun on a soft note, partly because Imran knows that, after the DGISI’s unprecedented public intervention, the Miltablishment could take off its gloves if he crosses their red lines again, and partly because he is still hoping that the PDM government will succumb to the threat of violence and open the door to negotiations that fulfil his objectives. Both sides are propagating their intent to fight despite admitting pressure to talk.
Significantly, too, both parties are begging CJP Bandial to take their side. Imran Khan wants to march and the PDM government wants to stop him in his tracks. Khan insists his marchers will remain peaceful but Rana Sanaullah, the interior minister, has offered evidence of the PTI’s intentions to incite violence. The CJP says that the PTI has a right to march but notes his power to stop it at any time. Meanwhile, the good judge is exploiting this opportunity to browbeat the government and pack the court with handpicked junior judges. The threat of blocking the acquittal of Maryam Nawaz and outlawing the amended NAB law that has reprieved the top leaders of the PDM has sent the government scurrying for compromise, even to the extent of sacrificing its law minister, Azam Tarar, who was compelled to vote in favour of CJP Bandial’s nominees in the Judicial Commission against the interests of the bar which he has long represented.
Another struggle is manifestly unfolding in the background. At least five top generals are vying for the top slot in the army on November 29th when General Bajwa is scheduled to doff his uniform. If he doesn’t do so because of some extraordinary development, they will all go home before he does. So they have a vested interest in forestalling violent conflict, keeping Imran Khan at bay and showing their chief to the door.
It is a perverse comment on the state of Pakistan that the two institutions that are supposed to be “politically neutral” – the army and the judiciary – have become the most intrusive and controversial. Worse, their heads are flaunting their unaccountable powers and prejudices without restraint.
The double irony built into the situation should not be lost on us, too.
Even as the army high command is insisting that it has become apolitical and neutral and intends to stay that way in the future, both the PTI and PDM are knocking on its door for salvation. The former is threatening them and the latter is cajoling them. Under the circumstances, the probability is that the generals will not shy away from upholding the “national interest” when the state is threatened by instability and destabilization in the face of financial bankruptcy, as always.
The other irony lies in the nature of the unprecedented popular attack on the army’s political interventionism launched by Imran Khan. In normal circumstances, this would be viewed as a belated but welcome development to strengthen constitutional democracy. Indeed, this is the common thread running through the long struggles of liberals, leftists, democrats, human and women’s rights groups and ethnic/sub-nationalist, religious minorities on the periphery. The problem has arisen because the current struggle for “real liberation” led by the PTI is not aimed at defanging the army to strengthen multi-party constitutional democracy but at sharpening its claws to clamp down on the PTI’s political opponents to entrench populist one party fascism.
Not so long ago, the people of Pakistan passionately backed the Lawyers Movement for Independence of the Judiciary as a veritable “revolution” in the offing. A decade later, we have been lumped with the most unaccountable and politically biased judiciary in history as exemplified by the likes of ex-CJPs Iftikhar Mohammad Chaudhry, Saqib Nisar and Asif Khosa. Today, we are in the throes of another such populist upsurge against another repressive state institution that threatens to further enslave us instead of liberating us.
Will November prove to be the cruelest month of all? It all depends on the answers to some burning questions. Will the COAS, General Qamar Javed Bajwa, go home on 29th November, 2022, as he has pledged several times, or will some extraordinary development “compel” him to stay on? Will Imran Khan’s long march of thousands end with a whimper or a bang (literally)? Will Imran Khan and Shehbaz Sharif enter into negotiations to end civil strife by setting a mutually acceptable date for the next general elections? What role will the Chief Justice of Pakistan (CJP), Umar Bandial, play in mediating or exacerbating political conflict?
With less than one month to go, General Bajwa’s departure is clouded by the reluctance of the PDM government to announce his successor. Just as rumours abounded earlier about Imran Khan’s offer of an extension to the COAS in exchange for help in defeating the vote of no-confidence against him launched by the opposition in March – now proven true – it is no secret that the PDM leadership would like to scratch his back in exchange for help in warding off the looming threat from the PTI. Even Imran Khan has suggested that if the PDM government can be packed off this month and caretakers installed, General Bajwa may stay on as COAS until after the elections have returned a new government to office. Thus, despite his avowed “apolitical” stance, if push comes to shove during the PTI’s long march, it is not inconceivable that General Bajwa may be “compelled” to step in, pry apart the two warring sides, knock some sense into them and gain an extension in tenure by virtue of his “good deed”. That would open the door to an early election rather than a late one. Under the circumstances, CJP Bandial might see the wisdom of approving another extension for General Bajwa until a new government is installed after the elections.
Much will therefore depend on how Imran Khan’s long march pans out in the next week or two. It has begun on a soft note, partly because Imran knows that, after the DGISI’s unprecedented public intervention, the Miltablishment could take off its gloves if he crosses their red lines again, and partly because he is still hoping that the PDM government will succumb to the threat of violence and open the door to negotiations that fulfil his objectives. Both sides are propagating their intent to fight despite admitting pressure to talk.
Significantly, too, both parties are begging CJP Bandial to take their side. Imran Khan wants to march and the PDM government wants to stop him in his tracks. Khan insists his marchers will remain peaceful but Rana Sanaullah, the interior minister, has offered evidence of the PTI’s intentions to incite violence. The CJP says that the PTI has a right to march but notes his power to stop it at any time. Meanwhile, the good judge is exploiting this opportunity to browbeat the government and pack the court with handpicked junior judges. The threat of blocking the acquittal of Maryam Nawaz and outlawing the amended NAB law that has reprieved the top leaders of the PDM has sent the government scurrying for compromise, even to the extent of sacrificing its law minister, Azam Tarar, who was compelled to vote in favour of CJP Bandial’s nominees in the Judicial Commission against the interests of the bar which he has long represented.
Another struggle is manifestly unfolding in the background. At least five top generals are vying for the top slot in the army on November 29th when General Bajwa is scheduled to doff his uniform. If he doesn’t do so because of some extraordinary development, they will all go home before he does. So they have a vested interest in forestalling violent conflict, keeping Imran Khan at bay and showing their chief to the door.
It is a perverse comment on the state of Pakistan that the two institutions that are supposed to be “politically neutral” – the army and the judiciary – have become the most intrusive and controversial. Worse, their heads are flaunting their unaccountable powers and prejudices without restraint.
The double irony built into the situation should not be lost on us, too.
Even as the army high command is insisting that it has become apolitical and neutral and intends to stay that way in the future, both the PTI and PDM are knocking on its door for salvation. The former is threatening them and the latter is cajoling them. Under the circumstances, the probability is that the generals will not shy away from upholding the “national interest” when the state is threatened by instability and destabilization in the face of financial bankruptcy, as always.
The other irony lies in the nature of the unprecedented popular attack on the army’s political interventionism launched by Imran Khan. In normal circumstances, this would be viewed as a belated but welcome development to strengthen constitutional democracy. Indeed, this is the common thread running through the long struggles of liberals, leftists, democrats, human and women’s rights groups and ethnic/sub-nationalist, religious minorities on the periphery. The problem has arisen because the current struggle for “real liberation” led by the PTI is not aimed at defanging the army to strengthen multi-party constitutional democracy but at sharpening its claws to clamp down on the PTI’s political opponents to entrench populist one party fascism.
Not so long ago, the people of Pakistan passionately backed the Lawyers Movement for Independence of the Judiciary as a veritable “revolution” in the offing. A decade later, we have been lumped with the most unaccountable and politically biased judiciary in history as exemplified by the likes of ex-CJPs Iftikhar Mohammad Chaudhry, Saqib Nisar and Asif Khosa. Today, we are in the throes of another such populist upsurge against another repressive state institution that threatens to further enslave us instead of liberating us.
Thursday 8 September 2022
Thursday 11 August 2022
Sunday 26 June 2022
Monday 6 June 2022
Saturday 14 May 2022
Sunday 24 April 2022
Sunday 17 April 2022
Friday 15 April 2022
Saturday 2 April 2022
The New Neutrality of Pakistan's Army
Basil Nabi Malik in The Dawn
I HAVE been closely following the extremely insightful commentary and discourse on the no-confidence motion and the legalities that surround it. I have read riveting articles on Article 63A of the Constitution of Pakistan, which offer ‘bendy’ and creative interpretations that could put a gymnast to shame. I have also witnessed a titillating discussion on the voting timeline for the no-confidence motion, a discussion that has seen so many permutations and combinations that any mathematician could die proud.
I have read about how Prime Minister Imran Khan’s days are numbered, how his political career has ended, how autocracy has been defeated and how the joint opposition has delivered a master stroke. One side is telling me that democracy is in danger, whilst the other is celebrating democracy’s triumph. One side condemns the opposition as being part of an international conspiracy, and the other targets the government, accusing it of working on a Jewish agenda.
Be that as it may, in this polarised debate on the no-confidence motion, Imran Khan’s political future and the opposition’s democratic credentials, it is safe to say that we are losing the plot so to speak, or in other terms, losing sight of the real questions that deserve attention. What questions, you may ask. Well, for starters, what has suddenly changed that has resulted in the current state of ‘no-confidence’? Is this parliament’s final act of expressing no confidence in Imran Khan’s leadership, or does this lack of confidence in him stem from somewhere else? Even otherwise, are these events cause for celebration?
Let us not forget that Imran Khan had been making blunders from the very beginning, the opposition has been trying to oust him virtually from his first day in office, and the credibility of the defectors was never really beyond reproach — in other words, their loyalties were always questionable. And yet, he was going nowhere. So why is he going now?
Many say it is because of the establishment’s ‘neutrality’. Neutrality implies a lack of alliance with any particular side or a lack of preference for any one over another. It is always good for institutions to be considered neutral and to act as such as well. But a painstaking and consistent attempt to ensure one’s neutrality, along with efforts to emphasise it at every stage, also indicates something else.
It alludes to the fact that the new-found position of neutrality is exactly that: new-found. It appears in negation to the erstwhile policy of non-neutrality or, at the very least, the tolerance of partiality. Obviously, if I proclaim to be neutral today, it would be reasonable for someone to think, rightly or wrongly, that I am shifting away from a partisan position to an indifferent one. After all, if I were neutral from the beginning, why would I have to announce it every now and then?
Secondly, neutrality today does not mean there will be neutrality tomorrow. It may simply mean that in the totality of circumstances, in the prevailing situation of the country, it is better to stay aloof and do one’s job as opposed to getting caught up in the quagmire of political intrigue. But that ‘could’ change. For that matter, at some point in time, it may be felt that that ‘needs’ to change. In essence, this may simply be a temporary phase and not a ‘forever’ decision.
And there is reason to suspect that things are not actually turning a corner, but rather, coming full circle. Nothing has really changed since the last intervention. Our economy is still in the dumps, our currency is still losing value, no large-scale reforms have taken place, our politicians are still considered corrupt and incompetent, justice is still a pipe dream, our masses are still deprived of basic education and sustenance, and the power structures are still skewed in favour of the unelected and against the elected.
The game of musical chairs continues, our prime ministers continue to not complete their terms, our judiciary appears divided, our debts continue to soar, our internal divisions continue to increase, and our disdain and lack of respect for the role of our past in changing our future is palpable to the point of being disheartening. The puppets cheer for the new champions of democracy today and shall support their replacements tomorrow. In fact, they’d even cheer for the puppets who will eventually replace them. Sadly, it’s more of the same. We just fail to see it, again and again and again.
We seem to relish deluding ourselves and continue to live in the theatre of the absurd, where we do the same things over and over again and expect different results. Albert Einstein called this insanity, but we in Pakistan call it a ‘revolution’, or in some circles, the ‘presidential system’. You may chuckle or grimace on reading this, depending on your worldview, but sadly, there is truth to it.
Be that as it may, we should all hope for a better tomorrow when we actually awaken from our slumber and own up to our absurdities. A slumber so deep that we can’t even see how we are killing this country and its people with our own petty version of the game of thrones, and absurdities so absurd that even national interest now appears to be a national joke.
Let’s hope that when such a time comes, when we finally wake up and pledge to improve, when the clouds part miraculously and the sun shines down without a care in the world, we are willing and ready to seek the treatment we need to get better, get sane, and not, for heaven’s sake, to get even.
I HAVE been closely following the extremely insightful commentary and discourse on the no-confidence motion and the legalities that surround it. I have read riveting articles on Article 63A of the Constitution of Pakistan, which offer ‘bendy’ and creative interpretations that could put a gymnast to shame. I have also witnessed a titillating discussion on the voting timeline for the no-confidence motion, a discussion that has seen so many permutations and combinations that any mathematician could die proud.
I have read about how Prime Minister Imran Khan’s days are numbered, how his political career has ended, how autocracy has been defeated and how the joint opposition has delivered a master stroke. One side is telling me that democracy is in danger, whilst the other is celebrating democracy’s triumph. One side condemns the opposition as being part of an international conspiracy, and the other targets the government, accusing it of working on a Jewish agenda.
Be that as it may, in this polarised debate on the no-confidence motion, Imran Khan’s political future and the opposition’s democratic credentials, it is safe to say that we are losing the plot so to speak, or in other terms, losing sight of the real questions that deserve attention. What questions, you may ask. Well, for starters, what has suddenly changed that has resulted in the current state of ‘no-confidence’? Is this parliament’s final act of expressing no confidence in Imran Khan’s leadership, or does this lack of confidence in him stem from somewhere else? Even otherwise, are these events cause for celebration?
Let us not forget that Imran Khan had been making blunders from the very beginning, the opposition has been trying to oust him virtually from his first day in office, and the credibility of the defectors was never really beyond reproach — in other words, their loyalties were always questionable. And yet, he was going nowhere. So why is he going now?
Many say it is because of the establishment’s ‘neutrality’. Neutrality implies a lack of alliance with any particular side or a lack of preference for any one over another. It is always good for institutions to be considered neutral and to act as such as well. But a painstaking and consistent attempt to ensure one’s neutrality, along with efforts to emphasise it at every stage, also indicates something else.
It alludes to the fact that the new-found position of neutrality is exactly that: new-found. It appears in negation to the erstwhile policy of non-neutrality or, at the very least, the tolerance of partiality. Obviously, if I proclaim to be neutral today, it would be reasonable for someone to think, rightly or wrongly, that I am shifting away from a partisan position to an indifferent one. After all, if I were neutral from the beginning, why would I have to announce it every now and then?
Secondly, neutrality today does not mean there will be neutrality tomorrow. It may simply mean that in the totality of circumstances, in the prevailing situation of the country, it is better to stay aloof and do one’s job as opposed to getting caught up in the quagmire of political intrigue. But that ‘could’ change. For that matter, at some point in time, it may be felt that that ‘needs’ to change. In essence, this may simply be a temporary phase and not a ‘forever’ decision.
And there is reason to suspect that things are not actually turning a corner, but rather, coming full circle. Nothing has really changed since the last intervention. Our economy is still in the dumps, our currency is still losing value, no large-scale reforms have taken place, our politicians are still considered corrupt and incompetent, justice is still a pipe dream, our masses are still deprived of basic education and sustenance, and the power structures are still skewed in favour of the unelected and against the elected.
The game of musical chairs continues, our prime ministers continue to not complete their terms, our judiciary appears divided, our debts continue to soar, our internal divisions continue to increase, and our disdain and lack of respect for the role of our past in changing our future is palpable to the point of being disheartening. The puppets cheer for the new champions of democracy today and shall support their replacements tomorrow. In fact, they’d even cheer for the puppets who will eventually replace them. Sadly, it’s more of the same. We just fail to see it, again and again and again.
We seem to relish deluding ourselves and continue to live in the theatre of the absurd, where we do the same things over and over again and expect different results. Albert Einstein called this insanity, but we in Pakistan call it a ‘revolution’, or in some circles, the ‘presidential system’. You may chuckle or grimace on reading this, depending on your worldview, but sadly, there is truth to it.
Be that as it may, we should all hope for a better tomorrow when we actually awaken from our slumber and own up to our absurdities. A slumber so deep that we can’t even see how we are killing this country and its people with our own petty version of the game of thrones, and absurdities so absurd that even national interest now appears to be a national joke.
Let’s hope that when such a time comes, when we finally wake up and pledge to improve, when the clouds part miraculously and the sun shines down without a care in the world, we are willing and ready to seek the treatment we need to get better, get sane, and not, for heaven’s sake, to get even.
Friday 11 March 2022
Wednesday 9 February 2022
Sunday 29 August 2021
Friday 16 July 2021
Thursday 10 June 2021
Government Pensions subject to 'Good Behaviour'
Lt. Gen. H.S Panag (retd.) in The Print
On 31 May, the Ministry of Personnel, Public Grievances and Pensions, which is headed by Prime Minister Narendra Modi, issued a gazette notification amending Rule 8 — “Pension subject to future good conduct” — of the Central Civil Services (Pension) Rules 1972. The amendment prohibits retired personnel who have worked in any intelligence or security-related organisation included in the Second Schedule of the Right to Information Act 2005 from publication “of any material relating to and including domain of the organisation, including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation”, without prior clearance from the “Head of the Organisation”. An undertaking is also supposed to be signed to the effect that any violation of this rule can lead to withholding of pension in full or in part.
There are 26 organisations included in the Second Schedule of the RTI Act, including the Intelligence Bureau, Research & Analysis Wing, Directorate of Revenue Intelligence, Central Bureau of Investigation, Narcotics Control Bureau, Border Security Force, Central Reserve Police Force, Indo-Tibetan Border Police and Central Industrial Security Force. These organisations are excluded from the RTI Act. Ironically, the armed forces, which are responsible for the external and at times internal security, are covered by the Act.
In 2008, Rule 8 was first amended to make more explicit the existing restrictions under the Official Secrets Act by barring retired officials from publishing without prior permission from Head of the Department any sensitive information, the disclosure of which would “prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State or relation with a foreign State or which would lead to incitement of an offence.” An undertaking similar to the present amendment was also required to be signed.
The scope of the 31 May amendment is all-encompassing and its ambiguity leaves it open for vested interpretation and virtually bars retired officers who have served in the above-mentioned organisations from writing or speaking, based on their experience in service or even using the knowledge and expertise acquired after retirement. There is an apprehension that in future, the rules of other government organisations, including the armed forces, may also be amended to incorporate similar provisions.
The motive behind the amendment
All governments are legitimately concerned with safeguarding national security. Almost all countries have laws for the same. However, political dispensations often use these provisions to stifle criticism of the government, particularly by retired government officials who, based on their domain knowledge and experience, enjoy immense credibility with the public.
Originally, Rule 8 allowed withholding/withdrawal of pension or part thereof, permanently/for a specified period if the pensioner was convicted of a serious crime or was found guilty of grave misconduct. “Serious crime” included crime under Official Secrets Act 1923 and “grave misconduct” also covered communication/disclosure of information mentioned in Section 5 of the Act.
There was no requirement of prior permission before publication of any book or article, and prosecution under Official Secrets Act was necessary before any action could be taken. No undertaking was required to be given by the retiree officials. There is no noteworthy case in which this provision was invoked.
The motive behind the 2008 amendment by the UPA and the present amendment by the NDA, was/is to crack down on dissent by retired officials without the due process of law. This, when despite recommendations of the Law Commission and Second Administrative Reforms Commission, no effort has been made to amend the 98-year-old Official Secrets Act to cater for current requirements of national security. The only difference between the two amendments is that the latter makes the rule more absolute by adding the ambiguous rider regarding publication without permission “of any material relating to and including ‘domain of the organisation’, including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation.”
The amendment to Rule 8 is unlikely to withstand the scrutiny of law. The Supreme Court and the high courts have repeatedly upheld the principle that “pension is not a bounty, charity or a gratuitous payment but an indefeasible right of every employee”. The government cannot take away the right merely by giving a show cause notice to a retired official for having used “domain knowledge or expertise” while writing an article/book or speaking at any forum. Any application of this amendment will be thrown out by the courts. No wonder that there has been no known application of the amended rule since 2008. There has been no alarming increase in cases under the Official Secrets Act. Between 2014 and 2019, 50 cases have been filed in the country and none against a government official. And if a government official is actually guilty of violating national security, then is withdrawal of pension an adequate punishment?
What does the government then gain by this amendment? Simple, the new amendment acts as deterrent against criticism by retired officials. Which self-respecting retired government official would like to seek permission from her/his former junior or fight a prolonged legal battle to get his pension restored? The government’s will, thus, prevail not by the wisdom of its decision but by default.
Loss to the nation
All major democracies make optimum use of the experience of their retired government officials. While some become part of the government, others contribute by educating the public and throwing up new ideas/suggestions for the consideration of the government. The domain expert keeps a check on a majoritarian government facing a weak opposition by publicly speaking and writing. All governments try to hide failures and scrutiny for inefficiency. With a weak opposition and government-friendly media, the Bharatiya Janata Party dispensation is more worried about the perceived threat from the retired officials with domain expertise than an ill-informed opposition.
Given the Modi government’s obsession with respect to national security and its lackadaisical performance in its management, it is my view that in the near future, the government will incorporate similar provision in the pension rules of other government departments and the armed forces.
A case in point is the attempt by the Modi government to deny/obfuscate the intelligence failure and the preemptive Chinese intrusions. To date no formal briefing has been given about the actual situation in Eastern Ladakh. Doctored information has been fed to the media through leaks by government/military officials. Three retired defence officers, including the author, brought the real picture before the public through articles and media interviews. All were careful to safeguard operational security. A concerted campaign was launched to discredit these retired officers through government-friendly media and pliant defence analysts until the events overtook their detractors to prove them right. The author extensively used his knowledge of the terrain in Eastern Ladakh to bring the truth before the public. In a similar situation in future, these officers may well be battling in courts to safeguard their pensions.
Imagine a situation that in future when no historical accounts of our wars, counter insurgency/terrorism campaigns and communal riots can be written by retired government and armed forces officers. No retired official will be eligible to head our security related thinks tanks or speak in international forums about our experience. Despite provision of Section 8(3) of the RTI Act to declassify documents after 20 years, the government never does so except to score political points as in the case of Netaji Files.
The amendment to Rule 8 of Central Civil Services (Pension) Rules 1972 is nothing more than a blatant, overarching and draconian gag order against retired officials to manage the public narrative for political interests under the garb of safeguarding national security.
It safeguards the interests of the political dispensation and not the nation. It must be challenged in the courts and in the interim disregarded with contempt.
On 31 May, the Ministry of Personnel, Public Grievances and Pensions, which is headed by Prime Minister Narendra Modi, issued a gazette notification amending Rule 8 — “Pension subject to future good conduct” — of the Central Civil Services (Pension) Rules 1972. The amendment prohibits retired personnel who have worked in any intelligence or security-related organisation included in the Second Schedule of the Right to Information Act 2005 from publication “of any material relating to and including domain of the organisation, including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation”, without prior clearance from the “Head of the Organisation”. An undertaking is also supposed to be signed to the effect that any violation of this rule can lead to withholding of pension in full or in part.
There are 26 organisations included in the Second Schedule of the RTI Act, including the Intelligence Bureau, Research & Analysis Wing, Directorate of Revenue Intelligence, Central Bureau of Investigation, Narcotics Control Bureau, Border Security Force, Central Reserve Police Force, Indo-Tibetan Border Police and Central Industrial Security Force. These organisations are excluded from the RTI Act. Ironically, the armed forces, which are responsible for the external and at times internal security, are covered by the Act.
In 2008, Rule 8 was first amended to make more explicit the existing restrictions under the Official Secrets Act by barring retired officials from publishing without prior permission from Head of the Department any sensitive information, the disclosure of which would “prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State or relation with a foreign State or which would lead to incitement of an offence.” An undertaking similar to the present amendment was also required to be signed.
The scope of the 31 May amendment is all-encompassing and its ambiguity leaves it open for vested interpretation and virtually bars retired officers who have served in the above-mentioned organisations from writing or speaking, based on their experience in service or even using the knowledge and expertise acquired after retirement. There is an apprehension that in future, the rules of other government organisations, including the armed forces, may also be amended to incorporate similar provisions.
The motive behind the amendment
All governments are legitimately concerned with safeguarding national security. Almost all countries have laws for the same. However, political dispensations often use these provisions to stifle criticism of the government, particularly by retired government officials who, based on their domain knowledge and experience, enjoy immense credibility with the public.
Originally, Rule 8 allowed withholding/withdrawal of pension or part thereof, permanently/for a specified period if the pensioner was convicted of a serious crime or was found guilty of grave misconduct. “Serious crime” included crime under Official Secrets Act 1923 and “grave misconduct” also covered communication/disclosure of information mentioned in Section 5 of the Act.
There was no requirement of prior permission before publication of any book or article, and prosecution under Official Secrets Act was necessary before any action could be taken. No undertaking was required to be given by the retiree officials. There is no noteworthy case in which this provision was invoked.
The motive behind the 2008 amendment by the UPA and the present amendment by the NDA, was/is to crack down on dissent by retired officials without the due process of law. This, when despite recommendations of the Law Commission and Second Administrative Reforms Commission, no effort has been made to amend the 98-year-old Official Secrets Act to cater for current requirements of national security. The only difference between the two amendments is that the latter makes the rule more absolute by adding the ambiguous rider regarding publication without permission “of any material relating to and including ‘domain of the organisation’, including any reference or information about any personnel and his designation, and expertise or knowledge gained by virtue of working in that organisation.”
The amendment to Rule 8 is unlikely to withstand the scrutiny of law. The Supreme Court and the high courts have repeatedly upheld the principle that “pension is not a bounty, charity or a gratuitous payment but an indefeasible right of every employee”. The government cannot take away the right merely by giving a show cause notice to a retired official for having used “domain knowledge or expertise” while writing an article/book or speaking at any forum. Any application of this amendment will be thrown out by the courts. No wonder that there has been no known application of the amended rule since 2008. There has been no alarming increase in cases under the Official Secrets Act. Between 2014 and 2019, 50 cases have been filed in the country and none against a government official. And if a government official is actually guilty of violating national security, then is withdrawal of pension an adequate punishment?
What does the government then gain by this amendment? Simple, the new amendment acts as deterrent against criticism by retired officials. Which self-respecting retired government official would like to seek permission from her/his former junior or fight a prolonged legal battle to get his pension restored? The government’s will, thus, prevail not by the wisdom of its decision but by default.
Loss to the nation
All major democracies make optimum use of the experience of their retired government officials. While some become part of the government, others contribute by educating the public and throwing up new ideas/suggestions for the consideration of the government. The domain expert keeps a check on a majoritarian government facing a weak opposition by publicly speaking and writing. All governments try to hide failures and scrutiny for inefficiency. With a weak opposition and government-friendly media, the Bharatiya Janata Party dispensation is more worried about the perceived threat from the retired officials with domain expertise than an ill-informed opposition.
Given the Modi government’s obsession with respect to national security and its lackadaisical performance in its management, it is my view that in the near future, the government will incorporate similar provision in the pension rules of other government departments and the armed forces.
A case in point is the attempt by the Modi government to deny/obfuscate the intelligence failure and the preemptive Chinese intrusions. To date no formal briefing has been given about the actual situation in Eastern Ladakh. Doctored information has been fed to the media through leaks by government/military officials. Three retired defence officers, including the author, brought the real picture before the public through articles and media interviews. All were careful to safeguard operational security. A concerted campaign was launched to discredit these retired officers through government-friendly media and pliant defence analysts until the events overtook their detractors to prove them right. The author extensively used his knowledge of the terrain in Eastern Ladakh to bring the truth before the public. In a similar situation in future, these officers may well be battling in courts to safeguard their pensions.
Imagine a situation that in future when no historical accounts of our wars, counter insurgency/terrorism campaigns and communal riots can be written by retired government and armed forces officers. No retired official will be eligible to head our security related thinks tanks or speak in international forums about our experience. Despite provision of Section 8(3) of the RTI Act to declassify documents after 20 years, the government never does so except to score political points as in the case of Netaji Files.
The amendment to Rule 8 of Central Civil Services (Pension) Rules 1972 is nothing more than a blatant, overarching and draconian gag order against retired officials to manage the public narrative for political interests under the garb of safeguarding national security.
It safeguards the interests of the political dispensation and not the nation. It must be challenged in the courts and in the interim disregarded with contempt.
Thursday 3 June 2021
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