institutional corruption in military justice system

Institutional Corruption in Military Justice System

Chandra Nathlowast

February 15 2013

lowastnathcomputerorg He is an Independent researcher engaged in research in information security privacy law amp justice

1

Contents

1 Institutional Corruption in Military Justice System 4A Constitution amp Statutes Separation of Duties amp Checks and Balances 4B Changes in Institutional Process 4C Changed Societal Circumstances amp Need for Overhaul 4

2 Military justice is not a true system of law at all 5

3 How does Corruption Manifest itself In the Military Justice System 5

4 Concept of Rule of Law 6

5 Legitimate Rights of Servicemen for Rule of Law 7

6 Rule of Law in the Scheme of Military Justice System 7A Principle of Legality 8B Autonomous judiciary 8

7 Position of Convening Authority- Risk of Corruption 8A Discipline v Citizen Servicemans Rights 9

8 Unlawful Command Influence 10

9 Analysis of the High Court of Australia Judgement 11A UCI Actual and Appearance of UCI 11

10 The Constitution viz a viz Statutes 11A Article 33 amp The Army Act the Navy Act and the Air Force Act 11B Fundamental Rights 11C Limits on the State 12D Preamble to the Constitution 12E Article 33 is in violation of the Constitution 12F Citizen Servicemans Rights 13

11 Servicemens Rights to Human Rights 13A European Court of Human Rights amp the Military 14

12 Armed Forces Tribunal 15

13 Mens Rea amp unspecified Umbrella Crimes 15

14 Topics for further Research 17A Need for Genuine Reform in Military Justice 17B Comparative study of reform of the Military Justice System 17C Limiting the Role Of Convening Authority 17D Effective Judicial Review of Due Process amp the Convening Authority 17E Independence of the Judge Advocate General Branch 17

2

F Dividing Offences 18G Legal Aid and Procedural Rights of the Accused 18H Appellate Tribunal 18

15 Impetus for reform 18

16 Law Makersrsquo conviction of the need for reform 19

17 Superior Judiciaryrsquos Duty to Protect Rights of the Servicemen 19

18 Conclusion 19

3

CORRUPTION INMILITARY JUSTICE SYSTEM

ldquoIn the determination of his civil rights and obligations of any criminal charge against him everyone isentitled to a fair and public hearing within a reasonable time by an independent and impartial tribunalestablished by lawrdquo 1

1 Institutional Cor-ruption in MilitaryJustice System

There is a widespread recognitionthat corruption is morally venal anddetrimental to the cause of Indiansecurity Does this mean corrup-tion which can be seen rampant inarms procurement and alleged pay-backs which has been a serious issuefrom the mid 1980s The above beingvery much the part of institutionalcorruption we will never the less fo-cus ourselves on the aspect of corrup-tion in the Military Justice Systemhere

A Constitution ampStatutes Separation ofDuties amp Checks andBalances

From the perspective of InstitutionalCorruption Corruption in the Mil-itary Criminal Justice System maybe caused by the defective Consti-tutional provisions statutes struc-tures processes andor the actionsor omissions of the actors in the sys-tem who are required to act as perthe expectations Failure to recognisethe possible vulnerabilities threats orrisks of corruption in the criminal jus-

tice system of the armed forces is ex-actly on the lines of a failure to recog-nise the risks in the security domainof the system To expect humanshowever lowly or highly placed toact as paragons of virtue is to in-vite corruption The only safe wayto tackle this is by separation of du-ties checks and balances against eachother and credible threat of punish-ment and high probability of detec-tion of corruption Risk taking is inhuman nature and when the probabil-ity of detection is low even the oth-erwise reasonably law abiding tendsto jump the red light as we all knowWhen the stakes are high the motivesfor risk taking is higher too

B Changes in Institu-tional Process

Corruption in any institution cannotbe assumed to be of recent originrather a historical perspective has tobe taken into account and on that ba-sis it has to be found out whetherin the present condition such insti-tutional corruption can be rectifiedor not as the mere fact that thepresent constitutional and statutorysafeguards or lack thereof relating tothe Armed Forces would undoubtedlyfurther undermine the institutionalprocess on the backdrop of citizenrsquosconstitutionally defined fundamental

and Human Rights

C Changed Societal Cir-cumstances amp Need forOverhaul

It is also pertinent that an institu-tional process to be corrupt it mustsuffer from moral diminution Un-dermining institutional process wouldmean a series of actions which aretaken albeit abiding by the Rulesand Regulations as envisaged in anylegal process but which is in thefirst instance and on the face of itnot morally or ethically or for thatmatter correct and judicious keepingin mind the changed societal circum-stances of the society and public opin-ion Slavery womens rights and tol-erance to homo-sexuality are evidenceof the changing nature of public opin-ion in the society Connected withthe topical aspect of this paper in-stitutional corruption in the ArmedForces can be attributed to failure ofour law makers in amending Article33 of the Indian Constitution to bringit in tune with changed civil societalnorms and circumstances and espe-cially the Human Rights perspectiveand as per other developed nationsrsquonotions of justice and also persistentfailure to review for a complete over-haul in the Military System of justice

1European Convention on Human Rights (ECHR or Strasbourg Court) Article (6)1

4

consistent with the modern trendsin the society What was right forthe Roman legions is obviously notsuited for the citizen soldiers of the21st century The failure of the mod-ern military criminal justice systemcan squarely be attributed to the fail-ure of the society to appreciate thisand change with the times Militarybound by tradition may not see theneed for this change and may even behighly antagonistic to any change andthat in no way means change is notcalled for despite the smug satisfac-tion of the traditional military brassThe so called lsquomilitary expertsrsquo of theTelevision and the writers in the pop-ular media are fundamentally fraud-ulent when they parade military ex-pertise as expertise in finer aspects ofthe concept of justice for the soldiersailor or airman Thus we have someof the so called rsquomilitary expertsrsquo glo-rifying the lsquomilitary criminal justicesystemrsquo as some thing to be adoptedfor the civil society Society shouldquestion the fraudulent credentials ofthese so called lsquoexpertsrsquo

2 Military justice isnot a true system oflaw at all

Obviously the reader should be awareof the origins of Indian military lawjust as the American military lawand particularly the fact that it be-gan as a copy of the British systemwhich itself was a copy of the earlyRoman military law

ldquoIn 17th century Eng-land the practice of court-

martialing soldiers inpeacetime evoked strongprotests from ParliamentLord Chief Justice Halewrote that trial by mil-itary courts may notbe permitted in time ofpeace when the KingrsquosCourts are open for allPersons to receive Jus-tice according to the Lawsof the Landrsquo Hale com-mented that military jus-tice is not a true sys-tem of law at all butis lsquosomething indulgedrather than allowed as alawrsquo because of the needfor order and disciplinein the army Sir WilliamBlackstone agreedrdquo 2

Justice Douglas of US SupremeCourt speaking for the majority inOrsquoCallahan v Parker noted

ldquoIt was therefore therule in Britain at thetime of the AmericanRevolution that a soldiercould not be tried bycourt-martial for a civil-ian offense committed inBritain instead militaryofficers were required touse their energies and of-fice to insure that theaccused soldier would betried before a civil courtrdquo

3 How does Corrup-tion Manifest itselfIn the Military Jus-tice System

Corruption manifests itself in vari-ous ways and it is useful to distin-guish between Personal Corruption(motivated by personal gain) and Po-litical Corruption (motivated by po-litical gain) A further distinctioncan be made between individual cor-ruption and organizational or institu-tional corruption In the context ofthe state corruption most often refersto criminal or otherwise unlawful con-duct by Government Agencies or byofficials of these organizations actingin the course of their employment

Integrity discipline and Highmorale- the most battle winningfactors- being the hallmark in thefunctioning of our armed forces howdoes then corruption snake its wayinto the self contained Military Jus-tice System

ldquoThe court-martial is notan instrument of justiceand impartiality it is atool used to destroy thosetargeted by corrupt menwho would manipulate thesystem for their own de-vious ends For the mil-itary there are differentrules two distinct setsof laws Yoursquore eitherin a categorylsquoabove itrsquoor mercilessly beneath itrsquoscrushing weight Andwhat does that do to thefamilies of our service

2Benso Daniel H Military Justice in the Consumer Perspective Arizona Law Review595 (1971) Vol 13 httprepositorylawttuedubitstreamhandle10601312benson3pdfsequence=1 [accessed 2 October 2011]

5

men and women It de-stroys them It shat-ters their lives It de-pletes their life savings Itcauses a bitterness deepwithin the soul of hu-manity It carelesslyand with impunity de-stroys the very roots ofthe Constitution on whichthis nation was foundedwrites Glenda Ewing ofan advocacy group of vet-eran families of USArdquo 3

ldquoCorruption mushroomsunder the Undue Com-mand Influence Militaryjustice for the majority isprefabricated according tothe wishes of the SuperiorCommander(s) in chainand the lsquotrialrsquo or lsquocourt-martialrsquo is tantamount toa pre-ordained verdict ofGuilty How could anycourt proceeding be con-sidered fair when the lsquocon-vening authorityrsquo by rightof title is given the powerto select the judge anddefense and prosecution It may go lsquounsaidrsquo but theimplication is very clear- if the convening author-ity lsquosees fitrsquo to bring abouta court-martial then theaccused can be assumedto be guilty I find thesystem to be incorrigi-bly corrupt Numerous

convictions have been re-versed on appeal becauseof Unlawful Command In-fluence And it is ratherstrange that there is not asingle case where a com-manding officer has suf-fered prosecution for com-mitting that illegal act orproceeding illegally withmala fide intent Obstruc-tion of justice is as sub-versive of good order andmilitary discipline as anyother military offencesrdquowrites the advocacy groupin their web siterdquo 4

The Honble Supreme Court hasobserved that

ldquoCourts-martial are typ-ically ad hoc bodies ap-pointed by a military offi-cer from among his sub-ordinates They have al-ways been subject to vary-ing degrees of lsquocommandinfluencersquo In essencethese tribunals are simplyexecutive tribunals whosepersonnel are in the exec-utive chain of commandFrequently the membersof the court-martial mustlook to the appointing of-ficer for promotions ad-vantageous assignmentsand efficiency ratings-in short for their futureprogress in the serviceConceding to military per-

sonnel that high degree ofhonesty and sense jus-tice which nearly all ofthem undoubtedly havethe members of a court-martial in the nature ofthings do not and cannothave the independence ofjurors drawn from thegeneral public or of civil-ian judgesrdquo 5

4 Concept of Rule ofLaw

In UK Sir Edward Coke is said to bethe originator of the concept of Ruleof Law when he said that the Kingmust be under the god and law andthus vindicated the supremacy of lawover the pretensions of the executivesLater Prof Albert Venn Dicey devel-oped this concept Dicey cited casesin support of his reference to each ofthese high officials in his classic on theLaw of the British Constitution6

ldquoWith us every officialfrom the Prime Ministerdown to a constable or acollector of taxes is un-der the same legal respon-sibility for every act donewithout legal justificationas any other citizen TheLaw Reports abound withcases in which officialshave been brought beforethe courts and made in

3See Citizens Against Military Injustice a non-profit advocacy organization httpwwwmilitarycorruptioncommarinejusticehtm

an advocacy group for Justice for US Marines4See Id5 Lt Col Prithi Pal Singh Bedi etc v Union of India and Others AIR 1982 SC 14136Dicey A V Introduction to the Study of the Law of the Constitution httpwwwconstitutionorgcmtavdlaw_conhtm

6

their personal capacity li-able to punishment or tothe payment of damagesfor acts done in their of-ficial capacity but in ex-cess of their lawful au-thority A colonial gover-nor a Secretary of Statea military officer and allsubordinates though car-rying out the commandsof their official superiorsare as responsible for anyact which the law does notauthorise as is any pri-vate and unofficial per-sonrdquo7

In the United States Judge JohnJ Sirica could comfortably stretchthe arm of the law to reach a Pres-ident in office Richard Nixon in theWatergate affair

5 Legitimate Rightsof Servicemen forRule of Law

Our veteran have adopted for them-selves a career of commitment andsacrifice for the nation for defendingour borders for defending our free-doms and national integrity Buttragically these very men (andwomen) are denied the very samerights under the Indian Constitution( and that too by a very devious slightof hand ) that they have pledged their

lives to defend and fight to the verylast bullet and the last man (andwoman) The biggest tragedy is thatneither the soldiers and Generals northe innocent volunteer for the mili-tary is aware of this tragic denial ofall legitimate rights for all time everycitizen of this nation is entitled toexcept perhaps in the most unusualcircumstances of actual battle in thefield

ldquoInnocent until proven guilty byan impartial judgerdquo is the right of ev-ery human The military deserves ajustice system that can seek out thetruth without fear of retaliation Butdoes it work this way in the Militarycriminal justice system One wouldhope that the recent spate of widelypublicized trials by court-martial ofhigh ranking Generals have focusednational attention on fairness of themilitary justice system but circum-stances repeatedly reveal that anysuch hope is all belied

Some observers have even con-cluded that Military Justice is nomore than some drum head justiceand that military justice is to justiceas military music is to music writes adistinguished jurist8 No wonder tobe court-martialed in the Army lingomean to be convicted9 As one USex-Navy lawyer recalls lsquoThe generalattitude seemed to be that a man wasgoing before a court-martial to re-ceive a sentence rather than a trialrsquo10

6 Rule of Law in theScheme of MilitaryJustice System

Establishment of the Rule of Law re-quires a highly civilised society Tobegin with when States were gov-erned by absolute rulers there was norule of law in its true sense thougheven from earliest times some rulesregulating human conduct in societywere observed and enforced by suchrulers through judges appointed bythem Rule of Law as we understandtoday is a necessity of a democraticstate where no individual is inter-fered with or punished unless a lawis broken There are no discretionaryor arbitrary arrests rulings or actionsby the ruling power (the executive)The law applies to every individualand in the same way All officialsare under the same responsibility asany other citizen for every act they dowithout legal justification No one isgiven any concession under the law orin the courts for their rank positionor condition11

The stage or Rule of Law was firstreached in the democratic States ofthe West Now Rule of Law envis-ages first a uniform body of lawsto regulate all human conduct in theState which is a manifestation of awell-organised society secondly de-cision of all disputes by independentcourts not only between subject andsubject or citizen and citizen but also

7See Id8Harry N Scheiber and Jane L ScheiberlsquoBayonets in Paradise A Half-Century Retrospect on Martial Law in Hawaii 1941-

1946rsquoUNIV OF HAWAII LAW REV vol 19 pp 477-648 (1997 published 1998)9West Command Influence in CONSCIENCE AND COMMAND JUSTICE AND DISCIPLINE IN THE MILITARY 73 (1 Finn

ed 1971)10Times Friday August 13 1965 Times Criminal Justice The Servicemanrsquos Rights11Janet Munro-Nelson Rule of Law A Foot Note in Time November 2008 httpthe-beaconinfotopics

international-law-united-nationsrule-of-law [accessed 8 Nov 2011]

7

between the subject or the citizenon the one side and the State onthe other with freedom to the sub-jectcitizen to approach the courts forredress against the State without hav-ing to ask for permission before doingso and thirdly establishment of reg-ular courts manned by independentjudges to decide disputes It is onlywhen these conditions are fulfilled inany State that we may say that Ruleof Law in its true sense prevails inthat State

A Principle of Legality

The notion of Rule of law in thescheme of Military Justice Systemhas its major feature in the princi-ple of legality which is characterisedby at least three dimensions Firstlyit lays emphasis on the smooth func-tioning of administrative and judicialorgans of the Armed Forces and ex-pects them to exercise checks and bal-ances on one another The second as-pect of rule of law concerns the rela-tion between the personnel in powerin the Armed Forces and the individ-uals whose lives are affected by theexercise of their power to make themundergo proceedings In such a situa-tion the Rule of law marks the trans-formation of the individuals juridi-cal status from a mere subject intoa responsible citizen The third di-mension acknowledges the right to afair trial for all the personnel of theArmed Forces The notion of fair trialincludes a set of guarantees for the in-dividual vis vis the Military JusticeSystem There are several obligationsfor authorities like independence andimpartiality of the tribunal adoption

of decisions not on the basis of wis-dom but laid down laws publicityof hearings equality between the de-fence and the prosecution through thetrial (presumption of innocence untilproven guilty rights to prompt no-tice of nature and cause of criminalcharges to defend oneself in person orthrough a legal counsel to an inter-preter to be present during the hear-ings to examine witness to appealand to get compensation for miscar-riage of justice) and reasonable dura-tion of the trial

B Autonomous judiciary

All this can be ensured only throughan autonomous judiciary and the dis-pensation of justice in the back dropof Rule of Law cannot be left in thehands of few top brass who may notbe infallible to corruption and cor-rupt practices The power to orderor not to order a Court Martial is themost crucial command duty and ifthat alone determines who gets pun-ished and who does not depending onthe whims of the commander thenit makes the military justice systemcorrupt unjust and violative of hu-man rights A system based purelyon the pivotal Administrative poweralone can not pass the muster of hu-man rights by any stretch of logic orimagination

7 Position of Conven-ing Authority- Riskof Corruption

ldquoFrom an institutionalperspective corruptionarises where public offi-cials have wide authoritylittle accountability andperverse incentives Thismeans the more activitiespublic officials control orregulate the more op-portunities exist for cor-ruption Furthermorethe lower the probabilityof detection and punish-ment the greater the riskthat corruption will takeplacerdquo12

Too much of power vested in a sin-gle authority make them dispensers offavour and fortune This is when ar-bitrariness and corrupt practices seepinto the otherwise self contained codeof Military Act To understand thisit is pertinent to know the position ofthe Convening Authority

A convening officer is the mostcrucial in the system He is an offi-cer holding the necessary warrant un-der the Act empowering him to con-vene Courts Martial and he assumesfull responsibility for every case to betried by Court Martial He orders theCourt of Inquiry He selects the of-ficer(s) to conduct the Court of In-quiry he is empowered to accept orreject the Court of Inquiry findingshe decides upon the nature and detailof the charges to be brought and thetype of court martial required and is

12Handbook Center for Democracy and Governance US Agency for International Development A Handbook on Fighting CorruptionFeb 1999 httpwwwusaidgovour_workdemocracy_and_governancepublicationspdfspnace070pdf Last accessed 8 Nov 2011

8

responsible for convening the CourtMartial

The convening officer would drawup a convening order which wouldspecify inter alia the date place andtime of the trial the name of thepresident and the details of the othermembers all of whom he could ap-point He orders the Judge AdvocateGenerals office to appoint Judge Ad-vocate and failing such appointmenthe could appoint one He also ap-points (or orders a commanding of-ficer) to appoint a prosecuting offi-cer and a defending officer The con-vening officer is responsible for send-ing an abstract of the evidence to theprosecuting officer and to the judgeadvocate and could indicate the pas-sages which might be inadmissibleHe procures the attendance at trialof all witnesses to be called for theprosecution He also ensures that theaccused had a proper opportunity toprepare his defense legal representa-tion if required and the opportunityto contact the defense witnesses andwas responsible for ordering the at-tendance at the hearing of all wit-nesses reasonably requested by thedefense The convening officer coulddissolve the court martial either be-fore or during the trial when requiredin the interests of the administrationof justice and he has sole authorityto decide on this He could commenton the proceedings of a court martialwhich requires confirmation

The convening officer usually actsas confirming officer also While hemay seek JAG advise he is not boundby that Courts Martial findings arenot effective until confirmed by a con-

firming officer Prior to confirma-tion the confirming officer used toseek the advice of the Judge Advo-cate Generals Office where a judgeadvocate different from the one whoacted at the hearing would be ap-pointed The confirming officer couldwithhold confirmation or substitutepostpone or remit in whole or in partany sentence Once the sentence isconfirmed the defendant could peti-tion the reviewing authorities Thereviewing authorities could seek theadvice of the Judge Advocate Gen-erals Office He has the power toquash a finding and to exercise thesame powers as the confirming offi-cer in relation to substituting remit-ting or commuting the sentence Nei-ther the fact that advice had been re-ceived from the Judge Advocate Gen-erals Office nor the nature of that ad-vice need be disclosed

With this insight about the posi-tion of the Convening Authority itis not out of place to mention thatthe convening officer will or might actaccording to his notions and preju-dices He occupies a position of van-tage with reference to the accusedHe often has facts favourable to thedefense of which the accused is nec-essarily ignorant In these circum-stances the plight of the accused isin the hands of the convening author-ity who has to act in good faith andremember that it can reflect no crediton him to secure a conviction in theteeth of facts

A Discipline v CitizenServicemans Rights

No one can deny the fact that thereis a need for order and disciplinein order to ensure that the armedforces function effectively The chainof command in the armed forces iskept sacrosanct both in peace timeand war time to ensure that the sol-diers the sailors and the airmen haveavenues for redress of their genuinegrievances This is an executive func-tion When this function is intermin-gled with the judicial function thereends the citizen servicemanrsquos right todue process which is a fundamentalhuman rights as hailed by HumanRights courts in Europe

It did not require much delibera-tion for the European Court to pro-nounce that the court martial wasnot an lsquoindependent and impartialtribunalrsquo that it was not a tribunalrsquoestablished by lawrsquo The membersof the court martial were appointedad hoc that the judge advocates ad-vice on sentencing was not disclosedthat no reasons were given for thedecisions taken by the court-martialthe conforming and reviewing offi-cers and that the post-hearing re-views were essentially administrativein nature and conducted in privateEuropean Human Rights Court (inFindlay v UK in 1997) expressedthe unanimous opinion that there hadbeen a violation of Article 6 para 1 ofthe Convention (art 6-1) All theofficers appointed to the court weredirectly subordinate to the conveningofficer who also performed the role ofprosecuting authority The lack of le-

13Findlay v The United Kingdom (1101995616706) 25 February 1997 Independence and Impartiality of Court-martial Conveningofficer central to prosecution and closely linked to prosecuting authorities httpwwwhrcrorgsafricaadministrative_justice

findlay_ukhtml[Last accessed 8 Nov 2011]

9

gal qualification or experience in theofficers making the decisions eitherat the court martial or review stagesmade it impossible for them to actin an independent or impartial man-ner13

8 Unlawful Com-mand Influence

lsquoUnlawful Command influencersquo is thebiggest bane of the military justicesystem

One military judge colorfully de-scribed UCI as

The mandate of United States [v]Biagase 50 M[]J[] 143 [CAAF1999] could not be more clear Un-due and unlawful command influenceis the carcinoma of the military jus-tice system and when found must besurgically eradicated And this is go-ing to be what we are about to seethe eradication of something that hasshocked the conscience of this court

The following are facts of life

1 The convening officer orders theCourt of Inquiry and selects thePresiding officers and membersand indicates covertly or evenopenly what he wants done Inother words influences the out-come of the Court of Inquiry

2 Convening Officer can reject theCourt of Inquiry and order an-other Court of Inquiry to getthe out come he wants and theofficers in the Court of Inquiryare subordinates to him andhave to get reports from him toget next promotionposting

3 Convening officer orders theCourt Martial and appoints

the President and Members ofthe Court Martial prosecu-tionDefence counsel

4 Members of the court jolly wellknow that lsquoif the convening au-thority sees fit to bring about acourt-martial then the accusedcan be assumed to be guiltyrsquo

5 No prosecuting officer has everbeen taken to task for doing agood job of prosecuting Hehas on his side the whole of thejudges even before the trial hasstarted

6 If any Defending officer triesto do a good job of defendinghe knows that he will be takento task later and the unwrittenconvention is very well knownto one and all No defending of-ficer has ever been taken to taskfor doing a poor job at the de-fence

7 Court Martial decision is not ef-fective unless approved by theconvening officer If he does notlike the decision he can orderan an alternative retrial by anew court martial and the newmembers know why the retrialis being conducted and what isexpected of them

8 Judge Advocate knows thathis promotion and advancementin the career depends uponthe carrying out the wishes ofthe Commander and the JAGknows what the wishes of thecommander are JAG is theone who influences the courseof the court martial Instead offacilitating impartial justice heby his position is actually the

one who influences the decisionsand thus acts as the kingpin inthe lsquoobstruction of justicersquo

9 The investigator prosecutionthe court the defence all danceto the tune of the commanderand try their best to make hiswishes come true

10 If a hypothetical equivalent sys-tem were to be designed for therest of the Indian citizen it willgo some thing like this

(a) Abolish the supreme court

(b) The Secretary Home Min-istry orders the court asand when needed with hissubordinate bureaucrats asjudges

(c) Secretary Home Ministryappoints the prosecutionand the defence counsels inaddition

(d) All judges and prosecutionand defence counsels areuntrained in law

(e) He appoints only onelegally qualified person asjudge advocate to the courtbut he has only advisoryrole and his advice is notbinding on the judges tofind guilty or have any sayin punishment

(f) The decisions of the courtare not mandatory till it isapproved by the Home Sec-retary

How great will be the indepen-dence of such a court and how fairwill it be to the accused If such a ju-dicial system is not acceptable to the

10

cititizen to impose the current mili-tary judicial system on the citizen sol-dier is patenetly defective in statutestructure and processes To deny thistruth would be irrational and illogi-cal

9 Analysis of theHigh Court of Aus-tralia Judgement

Analysis of Australian judgement14

makes it clear that

1 Courts martial are created byAct of Parliament but violativeof the constitution (CHAP-TER IV- THE UNION JUDI-CIARY in our case)

2 Judges have NO tenure or free-dom from the executive

3 Judgements are effective only ifconfirmed by the executive andonly for the period of execu-tiversquos pleasure

4 Court does not have lsquoContemptof Courtrsquo powers

5 Courts martial are part of theexecutive and NOT the judi-ciary

Exactly same arguments are 100true in Indian Context too withmore conviction because unlike Aus-tralians we have NOT even createdpermanent courts like Australian Mil-itary Courts(AMC)

A UCI Actual and Ap-pearance of UCI

Thus actual UCI affects the fairnessof a trial while the appearance ofUCI merely affects the level of pub-lic confidence in the Military JusticeSystem Unlawful Command Influ-ence was illustrated in an appeal inthe Delhi High Court in which offi-cers were court martialled for allegedoffences and the Honble Court Held

ldquoLaw reigns supreme andthat is the constitutionalmandate in this countryThe Military IntelligenceDirectorate cannot underthe parameters fixed un-der the constitution andunder the provisions ofthe Army Act and ArmyRules assume the role ofa prosecutor and a judgeof its own cause To givean air of verisimilitudethe respondents (militaryauthorities) had held thecourt martial proceedingswhich are wholly voidrdquo15

ldquoConclusion When youdivorce the Military fromMilitary Justice you areleft with Justicerdquo

10 The Constitutionviz a viz Statutes

A Article 33 amp The ArmyAct the Navy Act andthe Air Force Act

These Acts were enacted under Ar-ticle 33 of the Constitution so as tomaintain high standard of disciplineand obedience the ultimate aim be-ing to ensure combat readiness whichenables the morale of the fightingtroops to that degree where they will-ingly and enthusiastically lay downtheir lives for the sake and honourof the country But what is to beseen is that it is his sense of dutyhis sense of pride his self-disciplinewhich are more important than a dis-cipline which is imposed Hence wemust concentrate and try to developan atmosphere of self-discipline whichis of paramount importance

B Fundamental Rights

Right to Life and Liberty in thescheme of our Constitution wasplaced at the paramount position andall other rights enumerated underArt 14 to 32 of the Indian Consti-tution were incorporated as meansto protect and secure that very rightto Life and Liberty to each individ-ual sovereign member of the polityfrom encroachment by any other per-son or authority or even the StateWhile so doing We the People of In-dia did not create any classificationamong ourselves so far as protectionof that Right to Life and Liberty was

14 Lane v Morrison [2009] HCA 29 26 August 2009 C32008 httpgooglK85ZmAccessed 8 Nov 201115 NR Ajwani vs Union Of India (Uoi) And Ors Delhi High Court on 21 December 2000 Equivalent citations 95 (2002) DLT 770

httpindiankanoonorgdoc1408854 Last accessed 8 Nov 2011

11

concerned In recognizing the right toLife and Liberty we made no distinc-tion or discrimination between menand men We held that this right toLife and Liberty was equally the in-alienable possession of each and ev-ery person irrespective of his or hercaste creed colour or country Thatwas why we used the word PERSONinstead of CITIZEN or any other de-scription while declaring these rightsas being inalienable under Article 21of the Indian Constitution

C Limits on the State

Pursuant to our solemn Resolutiondated 22011947 by incorporation ofArticle 13 in the Constitution we hadcircumscribed the limits within whichany future Parliament could legislateby laying down

ARTICLE 13laws Inconsistent with or in dero-

gation of the fundamental rightsndash(1) All laws in force in the terri-

tory of India immediately before thecommencement of this Constitution in so far as they are inconsistent withthe provisions of this Part shall tothe extent of such inconsistency bevoid

(2) The State shall not make anylaw which takes away or abridgesthe rights conferred by this Part andany law made in contravention of thisclause shall to the extent of the con-travention be void

(3) In this Article unless the con-text otherwise requiresndash

(a) lsquolawrsquo includes any Ordinanceorder bye law rule regulation no-tification custom or usage having inthe territory of India the force of law

(b) lsquolaws in forcersquo includes lawspassed or made by Legislature orother competent authority in the ter-ritory of India before the commence-ment of this Constitution and notpreviously repealed notwithstandingthat any such law or any part thereofmay not be then in operation at all orin particular areas

[(4) Nothing in this article shallapply to any amendment of this Con-stitution under Article 368]16

Even though this Article was in-corporated in the Constitution as anabundant caution to protect the Fun-damental Rights from the State in-terference a definite shift in certainquarters of the Constituent Assem-bly is quite perceptible Whereasin the Constituent Assembly Resolu-tions these Fundamental Rights havebeen referred to as inalienable and theState was only to secure and guar-antee the unhindered enjoyment andpossession thereof by each and ev-ery person [constituent member of Wethe People of India]

D Preamble to the Con-stitution

The Preamble to the Constitution de-clares the sole purpose of this Con-stitution of India coming into exis-tence is to SECURE TO ALL ITSCITIZENS Right to Justice LibertyEquality and Fraternity Article 13treats these Fundamental Rightsnotas inalienable natural attributes al-ready possessed by each and everyindividual sovereign member of Wethe People of India but as some-thing which is given as mercy granted

as a dole conferred at pleasure bysome superior being This approachby the Constitution Makers madeFREEDOM OUR BIRTH RIGHT [inthe words of Lokmanya Tilak] FREE-DOM conferred upon us at the mercyof The Executive which was createdunder the Constitution which Con-stitution We the People of India cre-ated adopted enacted and gave toourselves Thus by a sleight of wordspracticed in the drafting of the Con-stitution Creature [The Executive]was placed in a commanding positionover its Creator [We the People of In-dia]

E Article 33 is in violationof the Constitution

It is interesting to note that despitethere being a clear mandate againstallowing any pre-constitution law in-fringe upon the Fundamental Rightsaffirmed by We the People of India asbeing inalienable Article 33 was in-serted in the Constitution by a pro-cess which was nothing less than afraud played upon the ConstituentAssembly by certain persons havingvested interests in creating ArmedForces consisting of persons havingstatus of nothing more than SLAVESby cheating our own sons of the soilof their Fundamental Rights by firstluring them to join the Armed Forcesby praising them sky high as valiantdefenders of the Nations Sovereigntyand then without even letting themknow throw them into institutional-ized slavery and legalizing that slav-ery in the name of this Fraud uponthe Constitution that Article 33

16[NOTE that Article 13 (4) did not form part of original Constitution which We did adopt enact and gave to ourselves on 26111949and was inserted by the Constitution [Twenty Fourth Amendment] Act 1971 Sec 2]

12

F Citizen ServicemansRights

Thus the first casualty of the failureas detailed above is Citizen Service-mans rights Considering that theServicemen have dedicated their livesfor the defense of the rights of the cit-izens to deny these very servicementhe rights which the general citizensenjoy would be very tragic Whilesome rights will need to be compro-mised or curtailed altogether for thepeculiar nature of war in theatres ofwar this does not justify the denial ofthe same altogether for the whole oftheir career for these very same peo-ple who dedicate their lives for thedefense of the same for the rest of thecitizenry

US Congress enacted the codein 1950 in response to complaintsabout lsquodrum head justicersquo duringWorld War II when the number ofcourts-martial hit 750000 a year Inone sense the complaints were nosurprise civilian soldiers whetherdraftees or volunteers have madeknown their distaste for military rulesin every US war since the Revolu-tion But Congress was also aware ofthe professional soldierrsquos compellingargument that autocracy is a mili-tary necessity As General WilliamTecumseh Sherman warned in 1879ldquoAn army is a collection of armedmen obliged to obey one man Ev-

ery change in the rules which impairsthe principle weakens the armyrdquo17

11 ServicemensRights to HumanRights

the adoption of the HRA whichincorporated most of the Euro-pean Convention on Human Rights(lsquoECHRrsquo or lsquoStrasbourg Courtrsquo) andobligated domestic courts to apply in-ternational human rights law TheHRA has renewed focus on the inde-pendence of the judiciary 18

6(1) statesIn the determination of his civil

rights and obligations or of any crim-inal charge against him everyone isentitled to a fair and public hearingwithin a reasonable time by an inde-pendent and impartial tribunal estab-lished by law Judgment shall be pro-nounced publicly but the press andpublic may be excluded from all orpart of the trial in the interest ofmorals public order or national secu-rity in a democratic society where theinterests of juveniles or the protectionof the private life of the parties so re-quire or to the extent strictly nec-essary in the opinion of the court inspecial circumstances where publicitywould prejudice the interests of jus-tice

The rights of the servicemen can

not be abridged completely neither bythe constitution nor by the statutesbeyond what is the minimum needfor the proper functioning of the landsea and air forces in a war like situa-tion19

In 1962 Earl Warren then ChiefJustice of the United States lecturedat New York University on The Billof Rights and the Military and ex-pressed his conviction that the guar-antees of the Bill of Rights were notantithetical to military discipline Indoing so he acknowledged that mili-tary service would affect the exerciseof those rights and he also alludedto a perennial problem deciding whowould be subject to military law andthus within the jurisdiction of courts-martial20

Men should be confident that theywill get justice and fair play from thesociety and from Government Re-grettably today the morale is com-pletely missing If at all there isanything there is a growing feelingamong the service people that theGovernment is indifferent insensitiveand is in fact deliberately denigrat-ing the soldiers MajGen (Retd)V K Madhok who was the Addi-tional Director-General of the Terri-torial Army and a fine soldier hadsaid

ldquoHowever it needs to be notedwith great concern that nothing canbe more disturbing to a soldier than to

17 Time Criminal Justice The Servicemanrsquos Rights Friday Aug 13 1965 Read morehttpwwwtimecomtimemagazinearticle0917183420200html

18James Hyre The United Kingdomrsquos Declaration of Judicial Independence Creating a Supreme Court to Secure Individual RightsUnder the Human Rights Act of 1998 73 Fordham L Rev 423 (2004)httpirlawnetfordhameduflrvol73iss114 last accessed8 Nov 2011 lsquoThe HRA incorporates most of the ECHR including Article 6 which recognizes the right to a fair trialrsquo See Human RightsAct 1998 c 42 sched 1 (Eng)Article available athttpwwwlegislationhmsogovukactsacts199880042-dhtm

19See generally Eugene R Fidell Dwight Hall Sullivan Evolving Military Justice Naval Institute Press 2002 - Law - 362 pageshttpbooksgooglecombooksaboutEvolving_military_justicehtmlid=G3tYljWV_zEC Last accessed 8 Nov 2011

20Oxford Companion to US Military History Citizensrsquo Rights in the Military httpwwwanswerscomtopic

citizens-rights-in-the-militaryixzz1YzDMJQWP

13

lose faith in the Systems The systemwhether it is promotional whether itis reward or whether it is punish-mentrdquo

The Military Justice System can-not be solely for the purpose of en-forcing obedience in a hierarchicalfashion it must also ensure fairnessA lack of fairness in the administra-tive and disciplinary process can seri-ously undermine the cohesion moraleand discipline of the personnel andimpact negativity on unit effective-ness in peace as well as war21

The Indian Supreme Court hasobserved

ldquoOur Constitution envisages a so-ciety governed by rule of law Abso-lute discretion uncontrolled by guide-lines which may permit denial ofequality before law is the antithesisof rule of law Equality before lawand the absolute discretion to grant ordeny benefit of law are diametricallyopposed to each other and cannot co-existrdquo22

The right to a fair trial is a fun-damental safeguard to ensure that theindividuals are protected from unlaw-ful and arbitrary deprivation of theirhuman rights and freedoms The Mil-itary law being followed is archaic andits provisions dates back to 1911 alaw made for the slaves by the BritishThe British Military Justice systemconceived of to discipline a Merce-nary force is the progenitor of In-dian Military Justice system23 Butthe provider of this System ie theBritishers along with countries likeUnited States of America Australia

Canada and South Africa whose Mil-itary Justice system also originatedfrom British Articles of War haveundergone substantially vast changesowing to the changing Human RightsConcepts and criticism of the Judi-ciary Most of the archaic provisionsbeing still intact in the Indian Mili-tary Justice System reminds one ofthe mentality and perception of ourParliamentarians who have not comeout of the theory of subjugation andrule Most aptly put we can refer toPlatos Cave Equation which goes likethis - The three stages of enlighten-ment or perception if you will Theleast enlightened are the slaves tieddown and turned to face the wall ofthe cave They have been in this po-sition all their lives never seeing any-thing but the cave wall perceivingthis to be the true reality the onlyreality The only notion they haveof life comes from shadows cast bytheir masters dancing rsquoround a firein this cave in this process form-ing the perceived reality of the slavesthrough these cast shadows Theslave masters represent the mediumenlightened They are the ones inpower Controlling every aspect inthe lives of the enslaved The finalstage of enlightenment is stepping outof the cave Experiencing sunlight nochains impeding your motions no col-lar rsquoround your neck seeing the worldfor what it really is waterrsquos wet andthe sky is blue It is high time thatwe come out of our slumber and startacting start giving respect to thosewho gladly lay down their lives for our

better tomorrowThe military justice system as it

exists in India to day is violativeof Human Rights on most importantcounts The apathy of the militaryand the veteran pressure groups tofight for these rights with study andresearch is not some thing we can beproud of The veteran groups alsomay be more interested in pension re-lated demands and not for restorationof basic human rights in the militaryjustice system

A European Court of Hu-man Rights amp the Mili-tary

In a case in the European Court ofHuman Rights sitting in accordancewith Article 43 (art 43) of the Con-vention for the Protection of HumanRights and Fundamental Freedoms(rdquothe Conventionrdquo) ruled that courtmartial as followed in the UKwas violative of human rightsThese were successfully raised againstthe United Kingdoms Army Act in1997 in the case of Findlay v theUnited Kingdom before the EuropeanCourt of Human Rights24

The case of Findlay v UK de-cided by the European Court of Hu-man Rights on February 25 1997had a major effect on courts-martialin all the countries that derived itsmilitary laws from the English lawsThe resulting changes and reforms tothe UKs system through the ArmedForces Act 1996 and 2006 proves thepoint that it is just a matter of time

21Jha UC The Military Justice System in India An Analysis 2000 pg-14122Sudhir Chandra v Tata Iron and Steel Co Ltd AIR 1984 SC 06423Jha UCThe Military Justice System in India An Analysis pg-29324Findlay v The United Kingdom 1101995616706 Council of Europe European Court of Human Rights 25 February 1997

available at httpwwwunhcrorgrefworlddocid3ae6b66d1chtml [accessed 8 Nov 2011]

14

that some one raises human rights vi-olation of all courts martial as prac-ticed in India While UK had revisedtheir military justice system substan-tially even before United KingdomsArmy Act in 1997 our current ArmyAct is largely same as what the colo-nial power left for us while leaving thecountry in 1947 This is definitely amatter of shame

In a scathing critical remark USSupreme court stated in OrsquoCallahanv Parker25 the catch all Article 134( and in our case Section 63 of ArmyAct Conduct prejudicial to good or-der and military discipline) punishesas a crime rsquoall disorders and neglectsto the prejudice of good order anddiscipline in the armed forcesrsquo Doesthis satisfy the standards of vague-ness as developed by the civil courtsIt is not enough to say that a court-martial may be reversed on appealOne of the benefits of a civilian trialis that the trap of Article 134 maybe avoided by a declaratory judgmentproceeding or otherwise A civiliantrial in other words is held in anatmosphere conducive to the protec-tion of individual rights while a mili-tary trial is marked by rdquothe age-oldmanifest destiny of retributive jus-ticerdquo As recently stated rdquoNone ofthe travesties of justice perpetratedunder the Uniform Code of MilitaryJustice (UCMJ) is really very surpris-ing for military law has always beenand continues to be primarily an in-strument of discipline not justicerdquo26

US Supreme Court in OrsquoCallahan

v Parker land mark ruling (whilemay not be authoritative is verypersuasive for us in India as far asthe legal principles are concerned)held with regard to who can and cannot be court martialed Succinctlystated it says Court martial can nottry

1 when nature of crime and mili-tary duty has no direct connec-tion

2 dischargedretired soldiers foroffenses committed while in ser-vice

3 unless Military status nature ofcrime time and place of offenceall put together give it jurisdic-tion

12 Armed Forces Tri-bunal

The recent institution of the ArmedForces Tribunal under the Act 2007 having an Original as wellas Appellate Jurisdiction does nothave any jurisdiction in matters re-lating to transfers postings leaveand Summery Court Martial (exceptwhere punishments involve dismissalor imprisonment for more than threemonths) This serious lacuna in itsOriginal Jurisdiction leaves space forcorrupt practice to seep in in the formof discretion of the Commanding Of-ficers That there is no provision oflegal aid in the said Act itself un-dermines Fair Trial Inspite of the

enthusiasm generated when AFT wasinaugurated it should be stated thatthese are part of the executive anddo not have the independence of thehigher judiciary not to talk of theteeth required to ensure its decreesare executed AFTs are just papertigers violating the Human Rights ofthe soldier

ldquoThough there is an ex-clusive body to deal withsuch litigation some in-house attitudinal changesare much desired whichshould not be just re-jected at the thresholdThe AFT cannot be apanacea for all problemsAll stakeholders shouldbe open to flexibility inthought and action with-out which all statutoryand Parliamentary stepswould not result in full re-alization of the final ob-jectiverdquo27

13 Mens Rea amp un-specified UmbrellaCrimes

The most necessary aspect in a crimeis the mental intent of the accusedAt common law conduct could notbe considered criminal unless a de-fendant possessed some level of in-tention either purpose knowledge or

25See OrsquoCallahan v Parker 395 US 258 (1969)US Supreme Court httpsupremejustiacomus395258indexhtml [accessed8 Nov 2011]

26 Glasser Justice and Captain Levy 12 COLUM F 46 (1969) httpcaselawlpfindlawcomscriptsgetcaseplnavby=

caseampcourt=usampvol=395ampinvol=258 [accessed 5 June 2011]27Ghanshyam Prashad J THE JUDICIARY AND MILITARY LAW The tribune 4 Nov 2011 httpwwwtribuneindiacom2011

20111104edithtm6 Last accessed 8 Nov 2011

15

recklessness with regard to both thenature of his alleged conduct and theexistence of the factual circumstancesunder which the law considered thatconduct criminal This is termed asMens Rea in legal parlance FromMen Rea perspective any crime thatis not specifically detailed and listedout clearly well before the chargingwill not meet the constraints of MensRea and hence can not form the partof punishable crimes This importantprinciple of any criminal justice sys-tem is given a complete go by and isgrossly violated in case of umbrellacrimes under lsquoDevils Articlersquo Section63 of Army Act (Violation of good or-der and discipline Any person sub-ject to this Act who is guilty of anyact or omission which though notspecified in this Act is prejudicialto good order and military disciplineshall on conviction by court- martialbe liable to suffer imprisonment fora term which may extend to sevenyears or such less punishment as isin this Act mentioned) US Militaryhas attempted to list out all crimesthat could be charged under similarumbrella crimes No such effort isrecognised in India and disturbinglymore and more cases when the au-thorities can not find any other spe-cific charges they fall back on suchumbrella provisions A study of re-cent trends would lead one to con-clude that the fundamental require-ments of mens rea is grossly violatedin attempt to ldquodiscipline amp punishrdquounder these umbrella crimes

ldquoBenthamrsquos Panopti-con is for Foucault an

ideal architectural modelof modern disciplinarypower It is a design fora prison built so thateach inmate is separatedfrom and invisible to allthe others (in separateldquocellsrdquo) and each inmateis always visible to a mon-itor situated in a centraltower Monitors will notin fact always see eachinmate the point is thatthey could at any timeSince inmates never knowwhether they are beingobserved they must actas if they are always ob-jects of observation As aresult control is achievedmore by the internal mon-itoring of those controlledthan by heavy physicalconstraints The prin-ciple of the Panopticoncan be applied not onlyto prisons but to any sys-tem of disciplinary power(a factory a hospital aschool and in our casethe military) And infact although Benthamhimself was never able tobuild it its principle hascome to pervade everyaspect of modern soci-ety It is the instrumentthrough which moderndiscipline has replacedpre-modern sovereignty(kings judges) as thefundamental power re-lationrdquo28

lsquoDevils Articlersquo (Section 63 ofArmy Act) is like a Panopticonthrough which the established mili-tary authority controls the subjectswithin its power The high pro-file courts martial of Generals of theArmy in recent times puts all sub-ject members (which means the en-tire military from highest generals tothe lowly soldier) under the terror ofbeing subject to observation as whenthe power chooses and hence the mil-itary has strong motivation to not de-fine what exactly are the crimes un-der the umbrella crimes under Section63 but it can be applied as per thewishes of the power Foucault par-ticularly emphasizes how such reformalso becomes a vehicle of more effec-tive control

ldquoto punish less perhapsbut certainly to punishbetterrsquo He further ar-gues that the new modeof punishment becomesthe model for control ofan entire society withfactories hospitals andschools (and in our casethe military) modelled onthe modern prisonrdquo29

From this perspective the wholeMilitary could be considered a granddesign to punish any one that hasstepped out of its lsquonormal behaviourrsquoThe constant fear of being targetedfor such punishment under lsquoDevilsArticlersquo (Section 63 of Army Act)is the same as the ldquoinmates neverknow whether they are being ob-served they must act as if they are al-ways objects of observationrdquo This is

28Gutting Gary ldquoMichel Foucaultrdquo The Stanford Encyclopedia of Philosophy (Fall 2011 Edition) Edward N Zalta (ed) http

platostanfordeduarchivesfall2011entriesfoucault29ibid

16

cruel and inhuman as the fundamen-tal requirements of mens rea is notrequired to punish and hence in vio-lation of fundamental Human rightsThe ideas here are too sophisticatedto be known to the defendants andhence escape the radar of the defensecounsels

14 Topics for furtherResearch

A Need for Genuine Re-form in Military Justice

ldquoThe trouble with doing athing for cosmetic reasonsis that one always endsup with a cosmetic resultand cosmetic results aswe know from inspectingrich American womenare ludicrous embarrass-ing and horrificrdquo30

It is a fact that the Armed Forcesbeing a specialized society with itsown set of tradition has a law whichhas its basis in obedience neverthe-less providing an atmosphere whereunquestionable obedience is culti-vated by posing a threat that dis-obedience will be penalized cannotbe accepted That the Forces re-quirement to uphold discipline can beunderstood with regard to offenceslike desertion dereliction of duty ab-sent without leave and disobedienceof command but penalising such of-fences has to be in conformity withhuman rights perspective Strangelyeven in disobedience of command the

ability to recognise a legal commandfrom an illegal command emanatesout of ldquoloyalty to the constitutionrdquoand not to individuals A MilitaryTrial should not have a duel functionas an instrument of discipline and asan instrument of justice but mustrather be an instrument of justice Infulfilling this function it will also pro-mote discipline31

B Comparative study ofreform of the MilitaryJustice System

A comparative study of reform of theMilitary Justice System of the Devel-oped world which have to a large ex-tent been able to control and limit ac-tual bias and accusations and percep-tion of unlawful command influencein judicial proceedings by restrictingthe role of convening authority anddrawing up a tentative list of reformfrom the best practices in other lib-eral democracies of the world we candraw our own list

C Limiting the Role OfConvening Authority

The convening authority owing to hisdominant position and control overevery aspect of the disciplinary pro-ceedings holds an authoritative andinfluential position which at times isused against the detriment of the ac-cused Thus to stop any kind of cor-rupt practice first and foremost stepto be taken should be to abolish theconvening authorities power to con-firm or review or refer a case for re-

vision Secondly as in British Mil-itary Justice System the duties ofthe convening authority relating toconvening a Court Martial shouldbe divided between two independentauthorities- the Prosecuting author-ity and the Court Administrative au-thority32 The pre-trial instruction tocourt member to be curtailed Anyextra-judicial pressures which acts asObstructio of justice and should bemade a cognizable offence

D Effective Judicial Re-view of Due Process ampthe Convening Author-ity

The convening authority with itsunbridled powers goes unquestionedeven when it exerts unlawful com-mand influence In India there is nosystem of Judicial Review for such ac-tions of the convening authority ForRule of Law to be effective in any in-stitution open and transparent ac-cess to Judicial Review is the needof the hour The convening author-ity should be held accountable for itscorrupt or biased actions Militaryjudges to be insulated from non-legalchain of command Full time trialand defence should be outside the in-fluence of the commanders

E Independence of theJudge Advocate Gen-eral Branch

Removing the Judge Advocate Gen-eral from the chain of command andputting it under the Ministry of De-

30 Stephen Fry Moab is My Washpot 23 (1997)31JhaUCThe Military Justice System in India An Analysis Chaper 9 Para 232 JhaUCThe Military Justice System in India An Analysis pg 299

17

fence would ensure fair trial as itwould be free from the undue com-mand influence of the convening au-thority An independent JAG is re-quired to be present a Trial by CourtMartial and should be vested withpowers to decide on questions of lawinstead of merely advising the Courton these questions This is very im-portant as the Court consists of of-ficers who are not conversant withLaw The Judge Advocate shouldalso have a say as to the quantumof punishment in a Court Martial asit pertains to principles of penologyand jurisprudence and this will helpin proper adjudication It will lessenunjust and disproportionate quantumof punishment

F Dividing Offences

The provisions contained in the Mil-itary Act pertaining to all the threeArmed Forces should be divided intotwo groups- serious service and civiloffences and non serious offencesThe latter can have the provision forPlea Bargaining provided the officervoluntarily wants to go for it Thiswill expedite delivery of justiceIn thefirst case it is pertinent to mentionthat in cases where the accused whoundergoes the Court Martial and isnot found guilty is sometimes dis-missed from service through admin-istrative action thus amounting tomaking him undergo double punish-ment This happens when the con-vening authority has some ill will to-wards the accused It was a reliefto come across a recent judgementpassed by the Armed Forces TribunalChandigarh wherein a significant rul-ing was made that the Chief of theArmy Staff is not vested with any

powers to terminate the services ofany officer This power is held bythe Central Government alone whichcan be exercised in exceptional casesonly on the recommendations of theArmy Chief Another important as-pect is to make to make mens rea ex-plicit mandatory in all criminal find-ings Within India courts martialcould try only those offences that isservice connected

G Legal Aid and Proce-dural Rights of the Ac-cused

It is very important that for a trialto be just and fair legal aid be pro-vided at an early stage It is also tobe seen that Military counsel are lawtrained officers who can assist and ad-vise the accused in preparing for hisdefence and should continue throughall the stages till Appeal The right tochoose a counsel should also be givenat an early stage It is also importantto ensure that the Counsel is not inany position to be influenced and canbe loyal to the cause of the accusedBasic rights as enshrined in funda-mental rights should be provided eventhough it is necessary to curtail cer-tain rights of the men in uniform

H Appellate Tribunal

To stop any kind of corrupt practicein the Military Justice System it ismost important that the AppellateTribunal be vested with the powerto punish personnel responsible formiscarriage of justice and also havethe power to award compensation tothose who have been victimised bythe system This will ensure that

the persons in authority will judi-ciously take decisions and afford duejustice The Appellate Tribunal bealso vested with powers over all mat-ters regarding postings leave sum-mary disposal and trials under itsOriginal Jurisdiction An all civilianCourt to review all courts-martial isalso imperative where the Judges areappointed by the law Ministry withthe concurrence of the Chief Justice

15 Impetus for re-form

Finally the impetus for reform shouldcome from outside the military estab-lishment that is to say that our lawmakers should bring about Amend-ments to the existing constitutionstatutes to keep pace with evolutionin the civil and criminal law andin accordance with tenets of HumanRights because it is futile to waitfor the military establishment ultraconservatives and tradition bound asthey are to reform itself To thinkotherwise would be ignoring realitiesof institutional and professional con-straints

ldquoBecause the military hasbeen so singularly uncon-scious of its defects and soinept at correcting thoseit does recognize count-less attorneys millions ofservicemen and ex-GIssome civilian jurists andeven some politicians arenow convinced that thereis no use to wait longerfor internal reforms andthat the best thing to dois simply to take away

18

the judicial process andreturn jurisdiction to thecivilian courtsrdquo 33

Superior courts like SupremeCourts and High Courts have to pro-tect Armed forces personnel from vi-olation of his constitutional rightsIt would be a honest beginning if aStanding Task Force on reformationof Administration of Military justicewhich gets rigorous informed inputsfrom all sources be established sothat a balance between need to ensurediscipline and need to protect citizenservicemen rights is arrived at andwhich will in turn result in impar-tial unbiased humane Military Jus-tice systemSadly the Military Topbrass has conflict of interests in initi-ating reform and nothing much maybe expected from them It is ridicu-lous that some Generals even projectthe military system as some thingideal to be adopted for the rest of thenation

Are military justice systems supe-rior as claimed by a retired IndianGeneral recently in the Indian mediaNo one can dispute that it is fast andsevere but can one be sure it is fairThis is typical of the lsquoaffirmative de-ceptionrsquo practiced consciously or un-consciously by the military to rein-force the official perspective In themilitary system the COCommanderis the police (law enforcer) the inves-tigator the prosecutor the judge andthe jury and the jailer and the exe-cutioner Each duty has conflicts ofinterest and violates the fundamen-tal principles of separation of dutiesTo hail this system with a 95+ per-

centage of conviction as the sole crite-ria for the goodness is fundamentallyflawed

16 Law Makersrsquo con-viction of the needfor reform

Indian Military Justice system is ananachronism as it is totally derivedfrom what was promulgated for acolonial army for the expansion ofcolonies by the colonial power andnot suited for the citizen soldier ofa democracy which should believein liberal values of human rightsand protection of the same from theusurpation by the State UK has to-tally overhauled their system whenit was declared to be against Hu-man Rights USA Australia Canadaand New Zealand have also revisedtheir laws pertaining to military jus-tice system to come to terms withthe requirements of a modern soci-ety If the Indian Parliament is con-vinced that the military justice sys-tem is bereft of the essence of jus-tice drastic reforms may hopefullybe forthcoming

17 Superior Judi-ciaryrsquos Duty toProtect Rights ofthe Servicemen

Though the Supreme Court and theHigh Courts have felt that in the ab-sence of any effective steps taken by

the parliament and the Central Gov-ernment it is their obligation to pro-tect and safeguard the constitutionalrights of the persons enrolled in theArmed Forces to a permissible ex-tent the soldier is still at the mercy ofa legal system that has not changedsince its inception in 1911 and adop-tion in 1950s The legislation con-taining the Military Justice System isunable to meet the demands of an en-lightened society and the present daycadre of the mixed forces The dissat-isfaction has resulted in a large num-ber of armed forces personnel (ap-proximately 10000 cases) approach-ing the higher judiciary for relief34

If the reform to protect the rights ofthe citizen soldier is not forthcomingfrom the law makers the only way thejudiciary can force it is to strike downthe violation of the rights of the citi-zen soldier exactly as the Europeancourts did in case of the UK courtmartials Any thing less will not forcethe law makers to bring in reform onits own Advocacy groups for therights of the service personnel shouldkeep up the pressure by filing cases asit has happenned in case of UK CourtMartial Our soldierrsquos right to consti-tutional and Human Rights is in noway less than that of the soldiers ofUK Australia or canada

18 Conclusion

Corruption in Military Justice Sys-tem as has been dealt with abovedoes not necessarily conform itself tothe straight jacket definition of abuseof power by public officials for private

33See SHERRILL R Military justice is to justice as military music is to music (Harper colophon books CN 230) [Loose Leaf] 217(1970)

34The 10th Report of the Parliamentary Standing Committee on Defence(2005-06) paras 10 and 12

19

gains A diverse array of phenom-ena in the Military Justice Systemwhere bribery a quintessential formof corruption is not an issue but theact of the convening authority moti-vated by a misplaced sense of lsquodis-cipline and punishrsquo rather than anyfinancial reward is definitely the is-sue Then again when a person inauthority motivated by sadistic plea-sure abuses hisher power by met-ing out cruel and unjust treatmentto those subject to his her author-ity is not engaging in an economiccrime motivated by economic consid-erations but surely motivated by adesire to exercise power for its ownsake smacks of corruption or cor-rupt practice The people in exec-utive exercise this power even whenused legally to the detriment of cit-izen accused and thus we can safelyassume such acts are clear case of cor-ruption in the criminal justice systemof the military Even the wide dis-parity in sentencing (from letting offeven with out prosecution to severstpunishment even beyond what is au-thorized under the law) is a result ofthe influence of the convening author-ity which invariably sways the CourtMembers decision and the trajedy isthat no one ever was prosecuted forobstruction of justice which is a crimeunder the law of the land Is this nota real case of crime under Army ActSection 63 prejudicial to the good or-der and military discipline Why is itno convening authority has ever beencharged with such a crime Do wehave a case for an independant ldquoMil-itary Lok Palrdquo as was advocated bythe civil society by Anna Hazare forthe civilian investigation and prose-cution Shouldnrsquot our servicemen beequally benefited by such a revolu-

tionary concept as our civil societywould be under the Lok Pal

The best way to conclude is toquote Justice Ghanshyam Prashad

ldquoWhile the judiciary hasduly recognized the re-quirement of maintainingdiscipline in the defenceservices it has abhorredthe actions which havebeen inconsistent with theConstitutional principlesof the nation and rightlyso since merely by join-ing the defence forces themembers of such forces donot cease to be citizens ofthe country While fun-damental rights of mem-bers of the forces maybe restricted they remainfull-fledged citizens of thecountry and amenable tothe same safeguards asare available to other cit-izensrdquo

20


Constitution amp Statutes Separation of Duties amp Checks and Balances

Changes in Institutional Process

Changed Societal Circumstances amp Need for Overhaul

Military justice is not a true system of law at all

How does Corruption Manifest itself In the Military Justice System

Concept of Rule of Law

Legitimate Rights of Servicemen for Rule of Law

Rule of Law in the Scheme of Military Justice System

Principle of Legality

Autonomous judiciary

Position of Convening Authority- Risk of Corruption

Discipline v Citizen ServicemanacircbullŽs Rights

Unlawful Command Influence

Analysis of the High Court of Australia Judgement

UCI Actual and Appearance of UCI

The Constitution viz a viz Statutes

Article 33 amp The Army Act the Navy Act and the Air Force Act

Fundamental Rights

Limits on the State

Preamble to the Constitution

Article 33 is in violation of the Constitution

Citizen Servicemans Rights

Servicemens Rights to Human Rights

European Court of Human Rights amp the Military

Armed Forces Tribunal

Mens Rea amp unspecified Umbrella Crimes

Topics for further Research

Need for Genuine Reform in Military Justice

Comparative study of reform of the Military Justice System

Limiting the Role Of Convening Authority

Effective Judicial Review of Due Process amp the Convening Authority

Independence of the Judge Advocate General Branch

Dividing Offences

Legal Aid and Procedural Rights of the Accused

Appellate Tribunal

Impetus for reform

Law Makers conviction of the need for reform

Superior Judiciarys Duty to Protect Rights of the Servicemen

Conclusion

Contents

1 Institutional Corruption in Military Justice System 4A Constitution amp Statutes Separation of Duties amp Checks and Balances 4B Changes in Institutional Process 4C Changed Societal Circumstances amp Need for Overhaul 4

2 Military justice is not a true system of law at all 5

3 How does Corruption Manifest itself In the Military Justice System 5

4 Concept of Rule of Law 6

5 Legitimate Rights of Servicemen for Rule of Law 7

6 Rule of Law in the Scheme of Military Justice System 7A Principle of Legality 8B Autonomous judiciary 8

7 Position of Convening Authority- Risk of Corruption 8A Discipline v Citizen Servicemans Rights 9

8 Unlawful Command Influence 10

9 Analysis of the High Court of Australia Judgement 11A UCI Actual and Appearance of UCI 11

10 The Constitution viz a viz Statutes 11A Article 33 amp The Army Act the Navy Act and the Air Force Act 11B Fundamental Rights 11C Limits on the State 12D Preamble to the Constitution 12E Article 33 is in violation of the Constitution 12F Citizen Servicemans Rights 13

11 Servicemens Rights to Human Rights 13A European Court of Human Rights amp the Military 14

12 Armed Forces Tribunal 15

13 Mens Rea amp unspecified Umbrella Crimes 15

14 Topics for further Research 17A Need for Genuine Reform in Military Justice 17B Comparative study of reform of the Military Justice System 17C Limiting the Role Of Convening Authority 17D Effective Judicial Review of Due Process amp the Convening Authority 17E Independence of the Judge Advocate General Branch 17

2





18 Conclusion 19

3










and Human Rights




4













5












6















7












8











9


























10




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion





18 Conclusion 19

3










and Human Rights




4













5












6















7












8











9


























10




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion










and Human Rights




4













5












6















7












8











9


























10




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion













5












6















7












8











9


























10




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion












6















7












8











9


























10




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion















7












8











9


























10




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion












8











9


























10




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion











9


























10




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion


























10




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion




makes it clear that


















11



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion



















12



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion



















13














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion














14


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion


















15









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion









16

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion

















17


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion


F Dividing Offences











18











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion











18 Conclusion




19





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion





20



















Fundamental Rights

Limits on the State














Dividing Offences


Appellate Tribunal

Impetus for reform



Conclusion

institutional corruption in military justice system

Documents

drum head justice

individual sovereign member

unlawful command inuence

due process

convening authority sees

undue command inuence

impartial tribunal established

armed forces tribunal