In Mohit's case, the state was not so graceful. But Justices Pradeep Nandrajog and Pratibha Rani were. They pondered the working of a pained teenage mind.
Cadet George Archer-Shee was dismissed from the Royal Navy's training college at Osborne, England, in 1908 for 'stealing' a buddy's postal order. His father successfully fought for his honour, and it became one of the most defining cases in the evolution of the citizen's rights against an arbitrary state. The case was immortalised in the play The Winslow Boy by Terence Rattigan. It was also made into a poignant Hollywood movie.
Now the incredible has happened! The entire Archer-Shee drama has been replayed in India in the case of Ex-Flight Cadet Mohit Bhandari versus Union of India and Others which was decided by the Delhi High Court on July 19, 2016. Surprisingly, none of the players—the petitioners, the lawyers or even the judges—seemed to be even remotely aware of the century-old case that they were re-enacting. A literal case of drama in real life. A real deja vu!
The Archer-Shee versus The King case shook the very foundation of English law on the eve of World War I. It redefined in the entire common law world (including India) the extent of the citizen's rights against the arbitrary actions of the Crown or the state. Even after the case was decided, and George Archer-Shee forgotten, it continued to be debated in the British parliament. Its effect was such that the first lord of the Admiralty ended up losing a part of his salary in token compensation to a 13-year-old cadet whereby the principle of personal accountability of an officer for his official actions in the service of the state was established for the first time in the history of law.
George Archer-Shee was born in a Roman Catholic family in 1895. His father, Martin, worked in the Bank of England, didn't believe in spending money, and sent his elder son to the army. He wanted to send his younger son, George, to the navy.
Young George “obtained the highest character and confidence and affection” of his elders; at the age of 13, he entered the Royal Naval College.
One day in September 1908, young George found he had just 2 pounds and 3 shillings in his school bank, and 4 pounds and 11 pence in his post office savings bank. He wanted to buy a model steam-engine for 15 shillings. He took permission to go to the post office, went to the cadets' locker-room ostensibly to pick up his things, but spent an unusually long time there. Then he walked to the post office, where he bought a postal order and sent it in payment for the engine.
One mystery in the story was: Why did he spend an unusually long time in the locker-room?
The Bhandaris are a middle-class family in Almora district of Uttarakhand, where it is an honour to send sons to the military. Mohit's father, B.S. Bhandari, is a small businessman. The family was proud when Mohit, bright, smart and athletic, got into the Sainik School at the age of 11.
The boy, dreaming to be a fighter pilot, did well in school, and passed his senior secondary in 2010. He cleared the Union Public Service Commission tests, trained at the academies, and was selected for the Air Force. At the Air Force Academy, Dundigal, Hyderabad, he flew the Pilatus and also obtained a BSc degree from Jawaharlal Nehru University. Things were looking bright for the young cadet and the Bhandaris, when the devil visited him on September 24, 2013.
There was a minor distress for him those days. He didn't have a PAN, and the bank had blocked his savings account in which he had saved about Rs 13,000. He didn't have cash.
On the evening of September 24, in the cadet's changing-room he spotted a bag which he knew belonged to his buddy Cadet Shubhojeet Roy. He picked it up, looking for something. What he found was an ATM card with its pin scribbled on it. He walked with it to the nearest ATM and withdrew Rs 5,000.
Another mystery: What was he actually looking for in his buddy's bag?
The morning after George sent his postal order, Cadet Terence H. Back reported that someone had stolen his postal order. Since it was known that George had gone to the post office, that he had done something with postal orders, he was summoned and accused of theft. The boy pleaded innocent. Commander Cotton asked him to write his name and that of Back on a piece of paper. The handwriting matched the one on the postal order that the post-mistress produced.
The boy had only one defence. "All I can say is it was not me." No one believed him. The academy invoked Naval Discipline Act 1866, wrote to Martin to take his son back home, marking the end of young George's sailing dreams.
When Cadet Roy found that his ATM card was missing, and that Rs 5,000 had been drawn from it, he reported the theft to his instructor. Wing Commander A. Popli directed all cadets to fall in and gave an opportunity to the thief to confess. Mohit couldn't muster the courage to confess before his buddies. In the night, he wrote a letter to Roy withholding his name, but stating that he was a good friend, and praying to withdraw the complaint. He kept the letter under Roy's pillow, along with the ATM card and Rs 5,000. Roy recognised the handwriting. Mohit apologised to him. Roy's heart melted. He went to the instructor to withdraw the complaint.
But Wing Commander Popli invoked the Air Force Order 05/2012. Mohit was asked to make a statement in which he confessed to the crime, that his had been a rash and irresponsible act, and promised “to never repeat such an act in future. I request you to grant me one chance to prove my worthiness to serve in the IAF."
The academy brass asked for comments from Mohit's instructors. None had anything against him—he had been an ideal cadet. But the review board headed by Air Vice Marshal V.R. Chaudhary held that theft was a serious act of indiscipline, and recommended termination of training. On November 27, Air Marshal R.G. Burli, commandant of the academy, expelled Mohit.
Distressed to the soul, young Mohit wrote a "poignant letter" to the chief of air staff. "Sir, I ask not for forgiveness to my crime because I know it is a grave mistake, but I request for justice to my 10 years of sacrifice. Isn’t it unfair for throwing all those years of training into the bin just for one mistake? Sir, if you dig out my records from school or NDA, you will never find such a crime in my files. This never happened before and I promise it won’t happen again.... It's been more than 70 days [since] I flew that Pilatus PC-7 MKII... Sir, flying had always been my passion... I want to live for the pride and honour of the services and of the nation. Sir, please provide me with just one more opportunity...”
The chief of air staff didn't. Bhandari was sent home.
Martin Archer-Shee refused to believe his son was guilty. He contacted several lawyers, but none would help because it was recognised that "an action could not be brought against the King". It had also been established by law and also by judicial pronouncements that "those in the service of the Crown, whether military or civil, could be dismissed at will and were without remedy by petition of right or otherwise."
George's older brother, now a politician, contacted Sir Edward Carson, one of England's best barristers. Carson would take up the case only if he was convinced that the boy was innocent. He subjected the 13-year-old to a humiliating grilling, at the end of which he not only found that the boy was innocent, but also what he was doing in the locker-room for a long while.
The case came to the High Court of Justice in July 1910, where the solicitor-general, Sir Rufus Isaacs, appeared for the Crown. Sir Rufus would later become the Earl of Reading and Viceroy of India.
Carson addressed the facts. "A boy 13 years old has been labelled and ticketed for all his future life as a thief and a forger. Gentlemen, I protest against the injustice to a child, without communication with his parents, without his case ever being put, or an opportunity of its ever being put forward by those on his behalf.” By the fourth day of the trial, Carson had even established that the post-mistress who had said that George had cashed the postal order had been mistaken.
Then he addressed the law. Had the admiralty, acting on behalf of the Crown, reached a contract with a citizen or a subject? Could judicial action be brought against the Crown? “There was nothing to prevent the admiralty from entering into a contract with the subject. The contract would be to train the boy for four years, the parent undertaking certain payments, and also that his son should follow a naval career.... It would be impossible to contend that the Crown could not sue the plaintiff for failure to pay the amounts he had agreed to pay; surely there must be a reciprocal obligation...." The King had breached a contract with his subject, argued Carson.
Mohit's case looked lost. He had committed a crime, and had to pay for it. But Mohit and his father thought that the punishment was disproportionate to the crime. They didn't have the resources to fight a legal battle against the Indian Air Force and the Union of India. They had no assurance that the outcome would be favourable. But advocates S.S. Pandey and H.S. Tiwari agreed to take up their case. They filed a writ petition in the Delhi High Court.
On behalf of the Union of India, advocate Ankur Chibber appeared. Theft is a serious wrong treated as a felony by the penal law, argued Chibber. But Pandey and Tiwari put up a brave case. They conceded that as per clause (d) of para 9 of AFO 5/2012, theft was a serious act of indiscipline. But before punishing him, consider the circumstances which had led to the commission of the offence, consider the overall performance of the cadet in training, consider the discipline record of the cadet, they pleaded. In three years of traineeship there was not even a trivial infraction by the young cadet. "The penalty was vitiated and disproportionate" to the crime that had been committed.
Then they invoked the law. Punishment for serious indiscipline had to be by way of a corrective measure. They cited the Air Force Order 5/2012. It had provisions for corrective measures—denial of privileges, extra duties, endurance run, extra drills, reprimand, admonition, curtailing leave, deferment of commission, and more. The academy hadn't explored any. They had arbitrarily resorted to the extreme punishment. The extreme penalty of termination of training had to be the last resort. Even when that was exercised, the reasons had to be recorded. The academy brass had not done that.
By now, the solicitor-general Sir Rufus Isaacs began reading the writing on the wall of justice. On behalf of the admiralty, Sir Rufus, who would later be the lord chief justice of England, be elevated to peerage as Earl of Reading, and be sent as the Viceroy of India, gracefully accepted the declaration of Cadet George Archer-Shee that he had not taken the postal order, that he had not cashed it, and consequently he had been innocent of the charge of theft.
In Mohit's case, the state was not so graceful. But Justices Pradeep Nandrajog and Pratibha Rani were. They pondered the working of a pained teenage mind. In his letter to the chief of air staff, he had "reflected on his conduct and had tried to fathom a reason for his misadventure. He could not find one. He posited the question whether he was short of funds. And answered himself that it could not be because he had enough money in his bank account. He posits the next question whether it was a prank. He answered truthfully that it does not seem so. He then posits the question whether he committed the wrong to relieve financial stress on his family. But couldn’t answer the question. He records that there could be a lot of ‘maybes' but answers that none could come to his mind....."
The learned judges concluded: "We find that except for highlighting that theft was a serious indiscipline,” the members of the board had nowhere recorded the reports given by the chief flying instructor, chief ground instructor, training coordination officer, senior outdoor training instructor, or chief flying instructor, all of which had showed the boy's general character, behaviour, discipline and performance as a disciplined cadet.
The judges observed that the board should have considered that the penalty had to be imposed after considering the mitigating factors to the solitary wrong. “...Since guidelines framed by the authorities are found to be vitiated we dispose of the petition setting aside the penalty imposed of termination of traineeship; directing the chief of the air staff to peruse our decision and keeping in view paragraph 12 of AFO 5/2012 reappraise the record of the proceedings held by the Training Review Board...."
Mohit is now waiting for the chief of air staff to gracefully accept the court's decision and put him back on his Pilatus.
Now, the mysteries!
What was George Archer-Shee doing in those few long minutes in the locker-room?
He was smoking a cigarette.
What was Mohit Bhandari searching for in his buddy's bag in the locker-room, in which he found the ATM card?
He was looking for a cigarette.