Dissenting bureaucrats and the Constitution   

Bureaucratic dissent is never easy as the dissenter is often alone in his or her dissent surrounded by a hostile system which does not take kindly to the act of dissent. However it can be of the greatest consequence as seen by the history of what bureaucratic dissenters have achieved.

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Dissent in its flamboyant avatar takes the form of a Salman Rushdie fleeing a death threat, a Pratap Bhanu Mehta resigning rather than keeping silent, or a Emile Zola who braves threats to his life to defend Alfred Dreyfus. However, this performative register does not exhaust the forms of dissent.

Shiv Visvanathan writes about the dissent of the bureaucrat by telling the story of R.B Sreekumar who as the ADGP (Intelligence) of Gujarat refused to follow what he considered to be illegal instructions issued by the Chief Secretary and the then Chief Minister in the aftermath of the pogrom in Gujarat 2002.  For Visvanathan,  the dissent by the bureaucrat manifested in  a  ‘official note’ or an ‘affidavit’, is not a ‘scream, a challenge or a human rights protest’ but rather ‘appears as something more banal, as a policeman performing his duty. Bureaucratic dissent is expressed not in the ‘poetics of rights’, but in the ‘everyday prose of duty’.

R.B Sreekumar was one of a tribe of bureaucrats in Gujarat including Rahul Sharma, Sanjiv Bhatt and Rajnish Rai who went by the oath they swore to the Constitution over and above the illegal demands of the State. Their dissent has had a high price with all of them being subject to harassment and prosecution by the state.

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Sanjeev Bhatt

Sanjiv Bhatt has paid the highest price of all for documenting the complicity of the then Chief Minister in the Gujarat pogrom. He was maliciously prosecuted by the state which revived an old and false charge of custodial death and followed through to ensure a conviction and a sentence of life imprisonment in June of 2019. Ever since then he has been in prison. As his children Aakashi & Shantanu Bhatt poignantly noted on his birthday on 21 December, 2020, ‘Our father, Mr Sanjiv Bhatt stood up to this totalitarian regime at great personal and professional cost, and today, he is paying the heavy price for being, honest, upright and courageous…I implore you all, to be the citizens, the nation that our father believes exists.’

While the state may have succeeded in putting the lid on bureaucratic dissent in Gujarat post 2002, the idea of dissent as doing one’s duty is difficult to extirpate. There will always be dissenters even in the bureaucracy motivated by the simple idea of doing their duty in terms of what their profession mandates.

The judiciary too has had judges who performed their constitutional duty without fear or favour even in very difficult times. Of course the judge who stands as an exemplar of moral courage in difficult times is Justice Khanna and his extraordinary dissent in ADM Jabalpur when he alone among five judges, held that during an emergency fundamental rights do not lapse. This form of courage in the willingness to perform one’s constitutional duty is there at all levels of the judiciary.

Justice Yagnik

One extraordinary, yet unsung and forgotten story is of Justice Jyotsna Yagnik who convicted those accused of murder and looting at Naroda Patiya during the Gujarat pogrom of 2002. Justice Yagnik wrote a letter to the Special Investigation Team that she had ‘received as many as twenty-two threatening letters and blank phone calls at her home when she was presiding over the Naroda Patiya case and after her verdict’. Some ‘right wing commentators have even demanded her prosecution’ and she is subject to a ‘campaign of vilification on social media’. When she is asked as to ‘what kept her going when so many in the system had failed the victims of the Gujarat riots’. ‘To keep my head high before my own conscience’, Yagnik replied. ‘To truly observe the oath of upholding the constitution I had taken when I became a judge. That’s what kept me going’

On 7.12.20 in an unprecedented act of merely doing one’s duty, a Session Judge in Srinagar recused himself from hearing a bail application after he received a call from the Secretary to a Jammu and Kashmir High Court judge, on the direction of the latter, not to grant bail to the accused in one particular case. Such being the case, the Sessions Judge simply expressed his inability to hear the matter and directed that the bail application be submitted to the Registrar, Judicial of the High Court, so that the case may be placed before the High Court Chief Justice since it involved the liberty of a person. In this case, it is reported that the Chief Justice again sent the matter back to the Sessions Judge and the accused was released on bail.

Edward Snowden, NSA whistleblower

Bureaucratic dissent is never easy as the dissenter is often alone in his or her dissent surrounded by a hostile system which does not take kindly to the act of dissent. However it can be of the greatest consequence as seen by the history of what bureaucratic dissenters have achieved. Edward Snowden, was a contractor with the NSA when he decided to expose the wrongdoing of the NSA with incalculable global consequences for the debate on state surveillance and the violation of the right to privacy.

‘This is an industry that should not exist’ Says NSA Whistleblower Edward Snowden on Spywares

In an earlier time, we know of the injustice suffered by Alfred Dreyfus in nineteenth century France, who was wrongly convicted of espionage, merely because he was Jewish. The reason the unjust conviction of Dreyfus came to light was because an intelligence officer, Picquart found out that Dreyfus was wrongly convicted and inspite of pressure from within the Military refused to withdraw his report finding Dreyfus innocent.

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Alfred Dreyfus

Picquart’s dissent was invaluable as brought to light the injustice meted to Dreyfus and in turn led to the global campaign on behalf of Dreyfus launched by intellectuals such as Emile Zola which finally resulted in Dreyfus being pardoned. This would never have come to pass without the quintessential bureaucratic dissenter, Picquart. As Hannah Arendt observes, Picquart ‘was no hero and certainly no  martyr. He was  simply  that common  type  of citizen with  an  average  interest  in  public  affairs  who  in the hour of danger  (though not a  minute  earlier)  stands  up  to  defend  his  country  in  the  same  unquestioning  way  as  he  discharges  his  daily  duties.’

For his pains Picquart was to suffer imprisonment, reminding us of the  forgotten Picquart’s of India like Sanjiv Bhatt. However, inspite of the fact that Bhatt is still in jail, his act of dissent is invaluable. The paper trail established by the bureaucrat is  a way of establishing that ‘holes of oblivion’ into which all deeds good and evil will disappear ‘do not exist’. For Arendt the lesson of dissent is simple. That under ‘conditions of terror’, ‘most people will comply, but some people will not’. ‘Humanly speaking, no more is required, and no more can reasonably be asked, for this planet to remain a place fit for human habitation.’

Brave police officials like R.B Shreekumar, Sanjiv Bhatt and judges like Jyotsna Yagnik and  Abdul Rashid Malik keep alive the idea of fidelity to one’s professional duty, a fidelity to the Constitution and ensure that decency and humanity are not forgotten. They remain models of ways of acting even within the bureaucracy and judiciary and hopefully will continue to inspire people to act in accordance with the Constitution regardless of the illegal demands of the powers that be.

Arvind Narrain is a founding member of the ‘Alternative Law Forum’ in Bengaluru, a collective of lawyers who work on a critical practise of law.

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