The Constitutional Conduct Group said that the "harsh amendments" that the anti-terror law has gone through in recent years has made it "draconian, repressive, and amenable to gross misuse".
Student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha outside Tihar prison, after a court ordered their immediate release in the north-east Delhi riots conspiracy case, in New Delhi, June 17, 2021. Photo: PTI/Kamal Singh
New Delhi: Over 100 former civil servants have endorsed an open letter by the Constitutional Conduct Group (CCG) which calls for the draconian Unlawful Activities (Prevention) Act (UAPA) to be amended, saying as it stands today, the law has “many flaws and loopholes making it amenable to large scale abuse and misuse by some politicians and overzealous policemen”.
In a statement, CCG said that the law violates constitutional guarantees and though it has been in existence in India’s statute books for over five decades, “the harsh amendments it has gone through in recent years has made it draconian, repressive, and amenable to gross misuse at the hands of ruling politicians and the police”.
The arrests of students Devangana Kalita and Natasha Narwal, the statement says, are examples of misuse. It also mentions the arrest of activists, lawyers and academics in the Elgar Parishad case as the “most shocking of the arrests under the UAPA”.
The statement notes that both UPA and NDA governments are responsible for the “extreme stringency” of the law, but also highlights the fact that since 2015, arrests under UAPA have shot up considerably.
CCG said that at a recent seminar, several retired Supreme Court judges had agreed that UAPA should not remain in the statute book in its present form. “We believe, like them, that such a draconian law has no place in a civilised society, particularly in a country claiming to be the world’s largest democracy,” the statement says.
Recollecting Prime Minister Narendra Modi’s statement at the G7 summit that “democracy and freedom” are part of the Indian ethos, the statement says if the prime minister is true to his word, “his government should heed the call of legal luminaries and the ordinary public, appreciate that the UAPA in its present form poses a serious threat to the freedom of our citizens and to democracy”. The Union government should consult legal experts and take into account the views of parliament, after which fresh legislation should replace UAPA. This new law, while addressing concerns regarding terrorism, should also safeguard the right to liberty of those exercising their fundamental right of free expression, as guaranteed by Article 19 of the constitution.
Among the signatories are Vappala Balachandran, A.S. Dulat, N.C. Saxena, Harsh Mander, Shivshankar Menon, Julio Ribeiro, Aruna Roy. The full list of signatories and the complete statement have been reproduced below.
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CCG OPEN LETTER TO CITIZENS OF INDIA
GOVERNMENT OF INDIA MUST REPLACE THE UAPA WITH LEGISLATION THAT FIGHTS TERRORISM WHILE SAFEGUARDING PERSONAL LIBERTIES
August 16, 2021
Dear Citizens of India,
We are a group of retired officers of the All India and Central Services who have worked with the Central and State Governments in the course of our careers. As members of the Constitutional Conduct Group, we believe in impartiality, neutrality and commitment to the Indian Constitution and in safeguarding its values.
We are writing this in the matter of the Unlawful Activities (Prevention) Act (UAPA) that violates the Constitutional guarantees of citizens’ fundamental rights. Though this law has been in existence in India’s statute books for over five decades, the harsh amendments it has gone through in recent years has made it draconian, repressive, and amenable to gross misuse at the hands of ruling politicians and the police. Typical of such misuse are the cases of the three anti-CAA student protestors – Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha – who were arrested under UAPA without any valid grounds but were recently granted bail by the Delhi High Court in a detailed and unprecedented order.
On 9 March 2021, the Union Minister of State for Home, Shri G. Kishan Reddy, in a written reply to the Lok Sabha, admitted to the uncommon overuse of the UAPA. He confirmed that 1948 persons were arrested under the UAPA in 1226 cases across the country in 2019, which showed a 72% increase as compared to 2015. The following figures will show the increase in cases and arrests between 2015 and 2019:
2015: 897 cases with 1128 arrests
2016: 922 cases with 999 arrests
2017: 901 cases with 1554 arrests
2018: 1182 cases with 1421 arrests
2019: 1226 cases with 1948 arrests
2019 saw the highest number of arrests in the country, particularly in the states of Uttar Pradesh (498) Manipur (386), Tamil Nadu (308), Jammu & Kashmir (227) and Jharkhand (202).
Despite the large number of arrests under the UAPA, the number of prosecutions and convictions shows a steep decline. The Government of India has admitted that a mere 2.2% of the cases registered between 2016 and 2019 resulted in conviction. We may conclude that the vast majority of the arrests under UAPA were made on specious grounds just to spread fear and muzzle dissent.
The UAPA has a chequered history. This legislation, first passed in 1967 on the recommendations of the National Integration Council to combat communalism, casteism, regionalism and linguistic chauvinism and to deal with associations engaged in secessionist activities, has changed colour over time and has now become a statute that has created new categories of offences and punishments.The UAPA was not used extensively prior to the last decade as the Government of India had, meanwhile, enacted preventive detention laws such as the Maintenance of Internal Security Act (MISA-1971), the National Security Act (NSA-1980), the Terrorist And Disruptive Activities (Prevention) Act (TADA-1987) and The Prevention of Terrorism Act (POTA-2002). But after the 9/11 terror attack on the USA, the UN Security Council passed a resolution asking national governments to enact countrywide anti-terror laws. The Government of India complied by passing the UAPA Amendment Act, 2004, carrying stringent provisions to suppress terrorism.
However, the Government of India seriously departed from the principles of criminal jurisprudence and from the provisions of the Constitution when the UAPA (Amendment) Act, 2008 was codified after the 26/11 Mumbai terror attack. This was done during the tenure of the United Progressive Alliance (UPA) government. Successive UPA and NDA Union governments which have been or are in power are responsible for the extreme stringency of the UAPA. In 2008, the UPA government made bail provisions much more stringent, increased the pre-charge detention period from 90 days to 180 days and, most damagingly, placed the burden of proof on the accused. In 2019, the NDA government further amended the UAPA to allow individuals, not merely organisations, to be designated terrorist. This amendment also gave unfettered and autocratic powers to the executive, in particular the National Investigation Agency (NIA), to enter any State and arrest any person. Though some voices of protest were raised when these amendments were made, most political parties supported the move. For the UPA members or any other party to act outraged now is, therefore, disingenuous.
The most shocking of the arrests under the UAPA have been of persons accused in the Bhima-Koregaon case. Several well regarded activists who have fought throughout their lives for the rights of tribal people and other oppressed groups have been arrested as terrorists and, even today, languish in jail. . The names of those arrested are well known – Sudha Bhardwaj, Rona Wilson, Gautam Navlakha, Anand Teltumbde, Arun Ferreira and Varavara Rao, to name a few. And, of course, Father Stan Swamy – an 84 year old Jesuit priest – suffering from Parkinson’s and other ailments, who was not granted bail despite repeated requests and eventually died while in custody.
Former judge of the Patna High Court, Justice Anjana Prakash, is on record stating that 66% of the total number of persons booked under the UAPA were for conspiracy without any allegations of accompanying acts of violence. She also revealed that out of the total number of 386 cases being investigated by the NIA, 74 cases were for non-UAPA offences while 312 pertained to UAPA offences. She added that NIA has not been able to submit charge-sheets in 56% of these cases, meaning that the accused in these cases still remain in custody. These figures definitely point to an unhealthy practice of “governance by fear” which has no legitimate place in a democracy.
The law, as it stands today, has many flaws and loopholes making it amenable to large scale abuse and misuse by some politicians and overzealous policemen. Things have come to such a pass that at a recent webinar on “Democracy, Dissent and Draconian Laws”, organised by the Campaign for Judicial Accountability and Reforms, four former Supreme Court judges – Justices Aftab Alam, Madan B Lokur, Gopala Gowda and Deepak Gupta – came down heavily on UAPA and sedition laws and the way they are being misused to suppress democratic dissent and curb fundamental rights. Justices Gopala Gowda and Deepak Gupta were of the view that since Section 43D(5) of the UAPA takes away the power of courts to grant bail and order a judicial review, the law is unconstitutional. All the former Supreme Court judges agreed that the UAPA should not remain in the statute book in its present form. We believe, like them, that such a draconian law has no place in a civilised society, particularly in a country claiming to be the world’s largest democracy.
Participating in a session at the G-7 Summit in Cornwall, United Kingdom, held between 11 and 13 June 2021, Prime Minister Narendra Modi spoke of democracy and freedom being part of the Indian ethos. If the Prime Minister is true to his word, his government should heed the call of legal luminaries and the ordinary public, appreciate that the UAPA in its present form poses a serious threat to the freedom of our citizens and to democracy and, after consulting legal experts and taking into account the views of Parliament, enact fresh legislation to replace the UAPA which, while addressing concerns regarding terrorism, safeguards the right to liberty of those exercising their fundamental right of free expression as guaranteed by Article 19 of the Constitution of India.
SATYAMEVA JAYATE
(108 signatories, as below)
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Anita Agnihotri | IAS (Retd.) | Former Secretary, Department of Social Justice Empowerment, GoI |
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Salahuddin Ahmad | IAS (Retd.) | Former Chief Secretary, Govt. of Rajasthan |
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S.P. Ambrose | IAS (Retd.) | Former Additional Secretary, Ministry of Shipping & Transport, GoI |
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Anand Arni | RAS (Retd.) | Former Special Secretary, Cabinet Secretariat, GoI |
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G. Balachandhran | IAS (Retd.) | Former Additional Chief Secretary, Govt. of West Bengal |
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Vappala Balachandran | IPS (Retd.) | Former Special Secretary, Cabinet Secretariat, GoI |
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Gopalan Balagopal | IAS (Retd.) | Former Special Secretary, Govt. of West Bengal |
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Chandrashekhar Balakrishnan | IAS (Retd.) | Former Secretary, Coal, GoI |
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Rana Banerji | RAS (Retd.) | Former Special Secretary, Cabinet Secretariat, GoI |
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T.K. Banerji | IAS (Retd.) | Former Member, Union Public Service Commission |
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Sharad Behar | IAS (Retd.) | Former Chief Secretary, Govt. of Madhya Pradesh |
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Aurobindo Behera | IAS (Retd.) | Former Member, Board of Revenue, Govt. of Odisha |
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K.V. Bhagirath | IFS (Retd.) | Former Secretary General, Indian Ocean Rim Association, Mauritius |
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Ravi Budhiraja | IAS (Retd.) | Former Chairman, Jawaharlal Nehru Port Trust, GoI |
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Sundar Burra | IAS (Retd.) | Former Secretary, Govt. of Maharashtra |
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R. Chandramohan | IAS (Retd.) | Former Principal Secretary, Transport and Urban Development, Govt. of NCT of Delhi |
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Rachel Chatterjee | IAS (Retd.) | Former Special Chief Secretary, Agriculture, Govt. of Andhra Pradesh |
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Kalyani Chaudhuri | IAS (Retd.) | Former Additional Chief Secretary, Govt. of West Bengal |
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Gurjit Singh Cheema | IAS (Retd.) | Former Financial Commissioner (Revenue), Govt. of Punjab |
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F.T.R. Colaso | IPS (Retd.) | Former Director General of Police, Govt. of Karnataka & former Director General of Police, Govt. of Jammu & Kashmir |
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Anna Dani | IAS (Retd.) | Former Additional Chief Secretary, Govt. of Maharashtra |
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Vibha Puri Das | IAS (Retd.) | Former Secretary, Ministry of Tribal Affairs, GoI |
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P.R. Dasgupta | IAS (Retd.) | Former Chairman, Food Corporation of India, GoI |
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Pradeep K. Deb | IAS (Retd.) | Former Secretary, Deptt. Of Sports, GoI |
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Nitin Desai | Former Chief Economic Adviser, Ministry of Finance, GoI | |
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Keshav Desiraju | IAS (Retd.) | Former Health Secretary, GoI |
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M.G. Devasahayam | IAS (Retd.) | Former Secretary, Govt. of Haryana |
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Sushil Dubey | IFS (Retd.) | Former Ambassador to Sweden |
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A.S. Dulat | IPS (Retd.) | Former OSD on Kashmir, Prime Minister’s Office, GoI |
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K.P. Fabian | IFS (Retd.) | Former Ambassador to Italy |
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Prabhu Ghate | IAS (Retd.) | Former Addl. Director General, Department of Tourism, GoI |
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Arif Ghauri | IRS (Retd.) | Former Governance Adviser, DFID, Govt. of the United Kingdom (on deputation) |
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Gourisankar Ghosh | IAS (Retd.) | Former Mission Director, National Drinking Water Mission, GoI |
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Suresh K. Goel | IFS (Retd.) | Former Director General, Indian Council of Cultural Relations, GoI |
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S.K. Guha | IAS (Retd.) | Former Joint Secretary, Department of Women & Child Development, GoI |
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H.S. Gujral | IFoS (Retd.) | Former Principal Chief Conservator of Forests, Govt. of Punjab |
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Meena Gupta | IAS (Retd.) | Former Secretary, Ministry of Environment & Forests, GoI |
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Deepa Hari | IRS (Resigned) | |
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Siraj Hussain | IAS (Retd.) | Former Secretary, Department of Agriculture, GoI |
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Kamal Jaswal | IAS (Retd.) | Former Secretary, Department of Information Technology, GoI |
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Najeeb Jung | IAS (Retd.) | Former Lieutenant Governor, Delhi |
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Arun Kumar | IAS (Retd.) | Former Chairman, National Pharmaceutical Pricing Authority, GoI |
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Brijesh Kumar | IAS (Retd.) | Former Secretary, Department of Information Technology, GoI |
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Ish Kumar | IPS (Retd.) | Former DGP (Vigilance & Enforcement), Govt. of Telangana and former Special Rapporteur, National Human Rights Commission |
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Sudhir Kumar | IAS (Retd.) | Former Member, Central Administrative Tribunal |
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Subodh Lal | IPoS (Resigned) | Former Deputy Director General, Ministry of Communications, GoI |
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B.B. Mahajan | IAS (Retd.) | Former Secretary, Deptt. of Food, GoI |
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Harsh Mander | IAS (Retd.) | Govt. of Madhya Pradesh |
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Amitabh Mathur | IPS (Retd.) | Former Special Secretary, Cabinet Secretariat, GoI |
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Aditi Mehta | IAS (Retd.) | Former Additional Chief Secretary, Govt. of Rajasthan |
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Shivshankar Menon | IFS (Retd.) | Former Foreign Secretary and Former National Security Adviser |
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Malay Mishra | IFS (Retd.) | Former Ambassador to Hungary |
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Sunil Mitra | IAS (Retd.) | Former Secretary, Ministry of Finance, GoI |
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Noor Mohammad | IAS (Retd.) | Former Secretary, National Disaster Management Authority, Govt. of India |
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Avinash Mohananey | IPS (Retd.) | Former Director General of Police, Govt. of Sikkim |
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Satya Narayan Mohanty | IAS (Retd.) | Former Secretary General, National Human Rights Commission |
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Jugal Mohapatra | IAS (Retd.) | Former Secretary, Department of Rural Development, GoI |
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Deb Mukharji | IFS (Retd.) | Former High Commissioner to Bangladesh and former Ambassador to Nepal |
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Shiv Shankar Mukherjee | IFS (Retd.) | Former High Commissioner to the United Kingdom |
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Gautam Mukhopadhaya | IFS (Retd.) | Former Ambassador to Myanmar |
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Pranab S. Mukhopadhyay | IAS (Retd.) | Former Director, Institute of Port Management, GoI |
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Nagalsamy | IA&AS (Retd.) | Former Principal Accountant General, Tamil Nadu & Kerala |
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T.K.A. Nair | IAS (Retd.) | Former Adviser to Prime Minister of India |
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P.A. Nazareth | IFS (Retd.) | Former Ambassador to Egypt and Mexico |
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P. Joy Oommen | IAS (Retd.) | Former Chief Secretary, Govt. of Chhattisgarh |
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Amitabha Pande | IAS (Retd.) | Former Secretary, Inter-State Council, GoI |
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Niranjan Pant | IA&AS (Retd.) | Former Deputy Comptroller and Auditor General, GoI |
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Maxwell Pereira | IPS (Retd.) | Former Joint Commissioner of Police, Delhi |
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Alok Perti | IAS (Retd.) | Former Secretary, Ministry of Coal, GoI |
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R. Poornalingam | IAS (Retd.) | Former Secretary, Ministry of Textiles, GoI |
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Rajesh Prasad | IFS (Retd.) | Former Ambassador to the Netherlands |
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Sharda Prasad | IAS (Retd.) | Former Director General (Employment and Training), Ministry of Labour and Employment, GoI |
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Rajdeep Puri | IRS (Resigned) | Former Joint Commissioner of Income Tax, GoI |
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T.R. Raghunandan | IAS (Retd.) | Former Joint Secretary, Ministry of Panchayati Raj, GoI |
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N.K. Raghupathy | IAS (Retd.) | Former Chairman, Staff Selection Commission, GoI |
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V.P. Raja | IAS (Retd.) | Former Chairman, Maharashtra Electricity Regulatory Commission |
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C. Babu Rajeev | IAS (Retd.) | Former Secretary, GoI |
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K. Sujatha Rao | IAS (Retd.) | Former Health Secretary, GoI |
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M.Y. Rao | IAS (Retd.) | |
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Vijaya Latha Reddy | IFS (Retd.) | Former Deputy National Security Adviser, GoI |
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Julio Ribeiro | IPS (Retd.) | Former Adviser to Governor of Punjab & former Ambassador to Romania |
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Aruna Roy | IAS (Resigned) | |
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A.K. Samanta | IPS (Retd.) | Former Director General of Police (Intelligence), Govt. of West Bengal |
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Deepak Sanan | IAS (Retd.) | Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh |
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G. Sankaran | IC&CES (Retd.) | Former President, Customs, Excise and Gold (Control) Appellate Tribunal |
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Shyam Saran | IFS (Retd.) | Former Foreign Secretary and Former Chairman, National Security Advisory Board |
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N.C. Saxena | IAS (Retd.) | Former Secretary, Planning Commission, GoI |
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A. Selvaraj | IRS (Retd.) | Former Chief Commissioner, Income Tax, Chennai, GoI |
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Aftab Seth | IFS (Retd.) | Former Ambassador to Japan |
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Ashok Kumar Sharma | IFoS (Retd.) | Former MD, State Forest Development Corporation, Govt. of Gujarat |
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Ashok Kumar Sharma | IFS (Retd.) | Former Ambassador to Finland and Estonia |
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Navrekha Sharma | IFS (Retd.) | Former Ambassador to Indonesia |
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Raju Sharma | IAS (Retd.) | Former Member, Board of Revenue, Govt. of Uttar Pradesh |
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K.S. Sidhu | IAS (Retd.) | Former Principal Secretary, Govt. of Maharashtra |
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Ajai Vikram Singh | IAS (Retd.) | Former Defence Secretary, GoI |
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Ramesh Inder Singh | IAS (Retd.) | Former Chief Secretary, Govt. of Punjab and former Chief Information Commissioner, Punjab |
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Satyavir Singh | IRS (Retd.) | Former Chief Commissioner of Income Tax, GoI |
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Sujatha Singh | IFS (Retd.) | Former Foreign Secretary, GoI |
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Tara Ajai Singh | IAS (Retd.) | Former Additional Chief Secretary, Govt. of Karnataka |
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Tirlochan Singh | IAS (Retd.) | Former Secretary, National Commission for Minorities, GoI |
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Narendra Sisodia | IAS (Retd.) | Former Secretary, Ministry of Finance, GoI |
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Anup Thakur | IAS (Retd.) | Former Member, National Consumer Disputes Redressal Commission |
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Thanksy Thekkekera | IAS (Retd.) | Former Additional Chief Secretary, Minorities Development, Govt. of Maharashtra |
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P.S.S. Thomas | IAS (Retd.) | Former Secretary General, National Human Rights Commission |
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Hindal Tyabji | IAS (Retd.) | Former Chief Secretary rank, Govt. of Jammu & Kashmir |
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Ashok Vajpeyi | IAS (Retd.) | Former Chairman, Lalit Kala Akademi |
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Ramani Venkatesan | IAS (Retd.) | Former Director General, YASHADA, Govt. of Maharashtra |
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Rudi Warjri | IFS (Retd.) | Former Ambassador to Colombia, Ecuador and Costa Rica |
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