Time to put the Court Martial on Trial
Chandra CP Nath
May 29, 2011
”Theres a compelling reason why the de-
fense establishment which includes politi-
cians, bureaucrats and military bureaucrats
needs to stop the tide of corruption”, asserts
Tehelka in its issue on corruption in Defense
Forces in India. It goes further: ”The COI
found them guilty and it recommended that
(Gen) Prakash be sacked. However, (Gen)
Kapoor stepped in and recommended that
only administrative action should be taken
against him. This caused so much commo-
tion that Antony had to write a letter to the
army chief asking for a court martial.”
Where does the cacophony of the media leave Mil-
itary Justice system is a question I first raise in this
article. In addition, the thesis developed for this ar-
ticle is that the current Military Justice System, as
it exists in India, is weighed against the accused and
is violative of the human rights accorded to him for
a fair trial under the Human Rights Law accepted
the world over. The Indian system will be examined
with close reference to UK and USA as these origi-
nated from the single common source of Roman laws.
I am not arguing that the real law breakers should
be left to escape. Just the contrary. Did Gen Kapoor
attempt to give his Principal Staff Officer an escape
route by not bringing charges against him? If yes,
it may be violative of the military criminal justice
(obstruction of justice: an act with the intent to in-
fluence, impede, or otherwise obstruct the due ad-
ministration of justice) if he has done the same for
reasons he can not justify. Was it an error of judg-
ment? To come under pressure from RM to order
a court martial when his sound military professional
judgment concluded otherwise, (and he as the com-
1
manding officer is the sole authority to decide this)
may be violative of a covenant duty as a commanding
officer if he allowed himself to be adversely influenced
by the RM in performing a strictly ”judicial function
of the commander”.
To come under pressure because of media on-
slaught and to ask the Chief to order a court mar-
tial may itself be violation of law by the RM because
he is interfering with a strictly judicial powers of the
Chief and RM by this act may have violated his oath
of office.
Should the error of judgment or act of obstructing
the due administration of justice by the Chief and the
action of the RM in attempting to influence a strictly
judicial function of the Chief be ignored while the in-
stitution is more than enthusiastic to punish Lt Gen
P K Rath for an error of judgment in a purely admin-
istrative function or for that matter Lt Gen Avadesh
Prakash for attempting to influence a purely admin-
istrative function of a field commander, all because
they appeared as ”the accused” ? Just think about
it! A serious critical analysis will expose more
skeletons in the cupboard than we would like
to see.
It is an accepted dictum that to perform a supe-
rior judicial function, security of tenure is manda-
tory. The inquiry about security of tenure may draw
a blank for the Chief!
This case, in the very least, establishes the fact that
the the Chief could succumb to pressures from higher
ups not in the command chain (because President
of India as the Supreme Commander of the Armed
Forces is in the chain of command and not the RM).
And, why so? Because, unlike, in the case of civil-
ian bureaucrats and even ordinary employees of the
government, any one in uniform, or for that matter,
even the Chief, could be dismissed with out assigning
any reason as protection of article 311 of the consti-
tution of India is deliberately barred to the men in
uniform! Can a Chief with such tremendous judicial
powers over his command, as detailed else where be-
low, function independently if he has no security of
tenure? A Naval Chief was dismissed by the RM and
there was not even a whimper! How sad?
Is the military justice system as it exists in India
to day violative of Human Rights as defined by the
Human Rights commission?
In a case in the European Court of Human Rights,
sitting, in accordance with Article 43 of the Conven-
tion for the Protection of Human Rights and Fun-
damental Freedoms (”the Convention”) ruled that
court martial as followed in the UK was vi-
olative of human rights. These were successfully
raised against the United Kingdoms Army Act in
1997 in the case of Findlay v. the United King-
dom before the European Court of Human Rights.
The case of Findlay v. UK, decided unanimously by
the European Court of Human Rights on February
25, 1997, had a major effect on courts-martial in all
the countries that derived its military laws from the
English laws. The resulting changes and reforms to
the UKs system through the Armed Forces Act 1996
and 2006 prove the point that it is just a matter of
time that some one raises human rights violation of
all courts martial as practiced in India. While UK
had revised their military justice system substantially
even before United Kingdoms Army Act in 1997, our
current Army Act is largely same as what the colonial
power left for us while leaving the country in 1947.
This is definitely a matter of shame.
In a scathing critical remark, US Supreme court
stated in O’Callahan v. Parker:
[T]he catch all Article 134, conduct preju-
dicial to good order and military discipline,
punishes as a crime ’all disorders and ne-
glects to the prejudice of good order and
discipline in the armed forces.’ Does this
satisfy the standards of vagueness as devel-
oped by the civil courts? It is not enough
to say that a court-martial may be reversed
2
on appeal. One of the benefits of a civilian
trial is that the trap of Article 134 may be
avoided by a declaratory judgment proceed-
ing or otherwise. A civilian trial, in other
words, is held in an atmosphere conducive
to the protection of individual rights, while
a military trial is marked by the age-old
manifest destiny of retributive justice.
As recently stated by eminent jurists:
None of the travesties of justice perpetrated
under the Uniform Code of Military Justice
(UCMJ) is really very surprising, for mili-
tary law has always been and continues to
be primarily an instrument of discipline, not
justice.- Glasser, Justice and Captain Levy,
12 Columbia Forum.
US Supreme Court in O’Callahan v. Parker land
mark ruling (while may not be authoritative, is very
persuasive for us in India as far as the legal principles
are concerned) the ruling held with regard to who can
and can not be court martialed. For accuracy, I quote
verbatim:
1. held that there was not the remotest connec-
tion between O’Callahan’s military duty and the
crime in question, and that as a consequence a
general court-martial was without jurisdiction to
try him, ”but rather [he] was entitled to trial by
the civilian courts.”
2. held that court-martial jurisdiction cannot be
extended to reach any person not a member of
the Armed Forces at the times of both the offense
and the trial. Thus, discharged/retired soldiers
cannot be court martialed for offenses commit-
ted while in service.
3. held that the fact that courts-martial have no
jurisdiction over non soldiers, whatever their of-
fense, does not necessarily imply that they have
unlimited jurisdiction over soldiers, regardless of
the nature of the offenses charged.
4. held that liability to trial by court-martial is a
question of ”status” - ”whether the accused in
 the court-martial proceeding is a person who can
be regarded as falling within the term ‘land and
naval Forces.’ But that is merely the beginning
of the inquiry, not its end. ”Status” is neces-
sary for jurisdiction; but it does not follow that
ascertainment of ”status” completes the inquiry,
regardless of the nature, time, and place of the
offense.
5. The O’Callahan Court’s historical foundation for
its holding rests on the view that ”both in Eng-
land prior to the American Revolution and in our
own national history, military trial of soldiers
committing civilian offenses has been viewed
with suspicion.
6. The 17th century conflict over the proper role
of courts-martial in the enforcement of the do-
mestic criminal law was not, however, merely a
dispute over what organ of government had juris-
diction. It also involved substantive disapproval
of the general use of military courts for trial of
ordinary crimes.
7. The Military tribunals have no expertise what-
ever to bring to bear on the determination
whether a common everyday practice carried on
by civilians become service connected when car-
ried on by servicemen. Mr Justice Douglas al-
ludes to ”so called Military Justice”, and ”trav-
esties of justice perpetrated” and the circum-
stances that ”courts-martial as an institu-
tion are singularly inept in dealing with
the nice subtleties of constitutional law.”
Indian Military Justice system is an anachronism
as it is totally derived from what was promulgated
for a colonial army for the expansion of colonies
by the colonial power and not suited for the citi-
zen soldier of a democracy which should believe in
liberal values of human rights and protection of the
same from usurpation by the State. UK has totally
overhauled their system when it was declared to be
against Human Rights. USA, Australia, Canada and
New Zealand have also revised their laws pertaining
to military justice system to come to terms with the
3
requirements of a modern society. If the Indian Par-
liament is convinced that the military justice system
is bereft of the essence of justice, drastic reforms may,
hopefully, be forthcoming.
Do we realize what justice is?
Lt General P K Rath was punished severely for
giving security clearance for a school in the military
area. If he were to be punished for this, every school
in the military area in India also has some one who
had given security clearance for it. They also ought
to be punished. Issues and principles in law ought not
to change colour like a chameleon. Lt General Rath,
just because he was in uniform could be punished for
an error of judgment in a purely administrative func-
tion. How many such errors of judgment must have
happened with the government and the bureaucracy
in India that are not punished and not even charged
with an offense? A Lt General was found to have
tampered with the war diary during Kargil opera-
tions because he wanted to obfuscate the contribution
of a Brigadier under him during the operations. This
is not an error of judgment but a deliberate offense
to tamper with the war diary of the nation. This is a
criminal offense under IPC. This is a serious military
offense under the new UK Armed Forces Act.( A per-
son subject to service law commits an offense if (a)
he makes an official record, knowing that it is false
in a material respect;and (b) he knows or has rea-
sonable cause to believe that the record is official.)
He was not even charged with an offense leave alone
punished because no media pressure forced the Chief
to order a court martial. It would definitely seem to
be an offense fit for a court martial in a service con-
nected offense in the field of military operations in the
face of the enemy” compared to an error of judgment
a in purely administrative function committed by Lt
General PK Rath. The only difference was, one was
placed as the accused in front of a court martial and
the other was not. So, every thing revolves around
who is placed as the accused in front of a court mar-
tial. What do you call this, military justice ?
The point that I am driving at is that the power
to order or not to order a court martial is the most
crucial command duty, and if that alone determines
who gets punished and who does not, depending on
the whims of the commander, that makes the military
justice system unjust and violative of human rights.
A system based purely on the pivotal executive power
alone can not pass the muster of human rights by any
stretch of logic or imagination.
Rule of Law: No individual is interfered
with or punished unless a law is broken.
There are no discretionary or arbitrary ar-
rests, rulings or actions by the ruling power
(the executive). The law applies to every
individual and in the same way. All offi-
cials are under the same responsibility as
any other citizen for every act they do with-
out legal justification. No one is given any
concession under the law or in the courts for
their rank, position or condition.
A convening officer is the most crucial in the sys-
tem. He assumes full responsibility for every case
to be tried by court martial. He orders the CoI. He
selects the officer(s) to conduct the CoI, he is em-
powered to accept or reject the CoI findings, he de-
cides upon the nature and detail of the charges to be
brought and the type of court martial required, and
is responsible for convening the court martial. The
convening officer would draw up a convening order,
which would specify, inter alia, the date, place and
time of the trial, the name of the president and the
details of the other members, all of whom he could
appoint. He orders the Judge Advocate General’s of-
fice to appoint Judge Advocate and failing such ap-
pointment, he could appoint one. He also appoints
(or orders a commanding officer) to appoint a prose-
cuting officer and a defending officer. The convening
officer is responsible for sending an abstract of the ev-
idence to the prosecuting officer and to the judge ad-
vocate, and could indicate the passages which might
be inadmissible. He procures the attendance at trial
of all witnesses to be called for the prosecution. He
also ensures that the accused had a proper oppor-
tunity to prepare his defense, legal representation if
required and the opportunity to contact the defense
witnesses, and was responsible for ordering the atten-
dance at the hearing of all witnesses ”reasonably re-
quested” by the defense. The convening officer could
dissolve the court martial either before or during the
trial, when required in the interests of the adminis-
4
tration of justice and he has sole authority to decide
on this. He could comment on the ”proceedings of a
court martial which requires confirmation”. The con-
vening officer usually acts as confirming officer also.
While he may seek JAG advise, he is not bound by
that. A court martial’s findings are not effective until
confirmed by a ”confirming officer”. Prior to confir-
mation, the confirming officer used to seek the ad-
vice of the Judge Advocate General’s Office, where
a judge advocate different from the one who acted
at the hearing would be appointed. The confirm-
ing officer could withhold confirmation or substitute,
postpone or remit in whole or in part any sentence.
Once the sentence is confirmed, the defendant could
petition the ”reviewing authorities”. The reviewing
authorities could seek the advice of the Judge Advo-
cate General’s Office. He has the power to quash a
finding and to exercise the same powers as the con-
firming officer in relation to substituting, remitting
or commuting the sentence. Neither the fact that
advice had been received from the Judge Advocate
General’s Office nor the nature of that advice need
be disclosed.
The position of Judge Advocate General is very in-
triguing. He is neither a judge nor an advocate nor
a General in the strictest sense of the word. Judge
advocates are appointed to the Court Martial by the
Judge Advocate General’s Office. He is responsible
for advising the confirming and reviewing authorities
following a court martial. Judge Advocates of the
court martial are not members of the Court. He ad-
vises them on law and procedure arising during the
hearing and the court had to accept this advice un-
less there were weighty reasons for not doing so. In
addition, in conjunction with the president, he is un-
der a duty to ensure that the accused did not suffer
any disadvantage during the hearing. For example, if
the latter pleaded guilty, the judge advocate has to
ensure that he or she fully understood the implica-
tions of the plea and admitted all the elements of the
charge. At the close of the hearing, the judge advo-
cate would sum up the relevant law and evidence.
It did not require much deliberation for the Euro-
pean Court to pronounce that the court martial was
not an ”independent and impartial tribunal”, that it
did not give him a ”public hearing” and that it was
not a tribunal ”established by law”. The members
of the court martial were appointed ad hoc, that the
judge advocate’s advice on sentencing was not dis-
closed, that no reasons were given for the decisions
taken by the court-martial, the confirming and re-
viewing officers, and that the post-hearing reviews
were essentially administrative in nature and con-
ducted in private. European Human Rights Court
(in Findlay v. UK in 1997) expressed the unanimous
opinion that there had been a violation of Article 6
para 1 of the Convention (art. 6-1). The court mar-
tial was not an ”independent and impartial tribunal”
as required by Article 6 para 1(art. 6-1), because
all the officers appointed to it were directly subor-
dinate to the convening officer who also performed
the role of prosecuting authority. The lack of legal
qualification or experience in the officers making the
decisions either at the court martial or review stages
made it impossible for them to act in an independent
or impartial manner.
Any accused in a court martial in India could claim
that his trial by court martial failed to meet the re-
quirements of Article 6 para 1 of the Human Rights
Convention (art. 6-1).
The reason the Military justice system is under
constant attack from every quarter in the western
society and there is constant attempt to improve it
or at least doubt its ability to provide justice is a very
positive thing. The reason why it is not under attack
in India is tragic because it smacks of certain insen-
sitivity to the fairness of the system to one who has
volunteered and his willingness, if necessary to make
the supreme sacrifice in call of duty for the nation.
Even the courts in India including the Supreme court
have maintained a hands off stand much to the detri-
ment of the consumer of the military justice system,
i.e. the man in uniform.
Are military justice systems superior as claimed
by a retired Indian General recently in the Indian
media? No one can dispute that it is fast and se-
vere but can one be sure it is fair? This is typ-
ical of the ”affirmative deception” practiced con-
sciously or unconsciously by the military to reinforce
the official perspective. In the military system, the
CO/Commander is the police (law enforcer), the in-
vestigator, the prosecutor, the judge and the jury and
5
the jailer and the executioner. Each duty has con-
flicts of interest and violates the fundamental princi-
ples of separation of duties. To hail this system with
a 95+ percentage of conviction as the sole criteria for
the goodness of the system may not exactly be logical
to say the least.
Obviously the reader should be aware of the origins
of Indian military law, just as the American military
law, and particularly the fact that it began as a copy
of the British system, which itself was a copy of the
early Roman military law.
”In 17th century England the practice
of court-martialing soldiers in peacetime
evoked strong protests from Parliament.
Lord Chief Justice Hale wrote that trial
by military courts may not be permit-
ted in time of peace, when the King’s
Courts are open for all Persons to re-
ceive Justice according to the Laws of
the Land.” Hale commented that mili-
tary justice is not a true system of
law at all, but is ”something indulged,
rather than allowed as a law” because
of the need for order and discipline in
the army. Sir William Blackstone agreed
Justice Douglas of US Supreme Court, speaking for
the majority in O’Callahan v. Parker, noted:
”It was, therefore, the rule in Britain
at the time of the American Revolu-
tion that a soldier could not be tried
by court-martial for a civilian offense
committed in Britain; instead military
officers were required to use their en-
ergies and office to insure that the ac-
cused soldier would be tried before a
civil court.”
Do you require great legal acumen to contrast this
with what is happening in India to day? For an of-
fense committed in Delhi of influencing a purely ad-
ministrative decision making of some other officer far
removed in the hierarchy, (a thing that must be hap-
pening million times every day in the corridors of
power in Delhi and state capitals), so many Generals
are transported to Leimakhong in Manipur from the that military justice is to justice as military
rest of India including the capital New Delhi (where music is to music, writes a distinguished ju-
all law courts are open and functioning) and a GCM rist.
will be conducted and a sentence will be pronounced,
in all probability, for the offense under the ”Devils There is a compelling reason to put the Court Martial
Article” (Section 63 of Army Act) against a Lt Gen- on trial before we put many more generals on court
eral with 30+ years of distinguished service! Remem- martial for what sometimes is called ”the Devil’s Ar-
ber that he has been recalled from retirement for this ticle”(Army Act Section 63) that authorizes punish-
legal process! After protracted appeals, in all proba- ment of military personnel on grounds that are less
bility, it all will be set aside. If the brilliant jurist of specific as to the particulars of the offense and as to
17th century, Lord Chief Justice Hale’s ruling were to the punishment, compared to most crimes in mod-
be followed as given above, a lot of tax payer money ern West European law. No wonder, to be court-
and time of General officers of the military could have martialed in the Army lingo mean to be convicted!
been saved, not to talk of the tremendous hurt felt As one US ex-Navy lawyer recalls:
by the accused for the injustice imposed by the mil- The general attitude seemed to be that a
itary. And the motivation of the Army seems to be man was going before a court-martial to re-
just to claim: ”We punish our accused how ever high ceive a sentence rather than a trial.
they may be, swiftly, sternly and fairly (sic), all in
the name of military discipline.” Real discipline is Unfairness is the biggest risk of the military justice
promoted when the system is perceived as fair by the system as it exists to day and it does not meet the
accused and not otherwise. To consider the military minimum standards of human rights as defined by
court martial as some sort of tsunami that sweeps the Human Rights Commission. You be the judge.
your life unpredictably during the course of the Army **************************
career (and against which any amount of care and
due diligence are useless and hence accept the same
as the quirk of fate) is NOT the right way to provide
balanced justice to our distinguished servicemen.
Legislators and jurists can make bad laws. Society
changes and the laws lag behind. This is nothing new.
So, great jurists must be concerned not just
with what the law is, but, most importantly,
with what it might or should become.
In the long run, the patient’s health will
be more improved by proper diagnosis and
treatment, than by either a refusal to ad-
mit the illness, or a desire for the patient’s
demise
as written by Charles M Schiesser and Daniel H. Ben-
son in their milestone article titled ”Modern Military
Justice”(Catholic University Law Review).
The recent spate of widely publicized trials by
court-martial of high ranking Generals have hope-
fully focused national attention on military justice.
Some observers have concluded that it is
no more than some ”drumhead justice” and