Institutional Corruption in Military Justice System

Chandra Nath∗
February 15, 2013

∗ nath@computer.org He is an Independent researcher engaged in research in information security, privacy, law & justice.

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Contents
1 Institutional Corruption in Military Justice System 4
A Constitution & Statutes: Separation of Duties & Checks and Balances . . . . . . . . . . . . . . . . . . 4
B Changes in Institutional Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C Changed Societal Circumstances & 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 7

A Principle of Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B Autonomous judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

7 Position of Convening Authority- Risk of Corruption 8

A Discipline v. Citizen Servicemans Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

8 Unlawful Command Influence 10

9 Analysis of the High Court of Australia Judgement 11

A UCI Actual and Appearance of UCI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

10 The Constitution viz a viz Statutes 11

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

11 Servicemens Rights to Human Rights 13

A European Court of Human Rights & the Military . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

12 Armed Forces Tribunal 15

13 Mens Rea & unspecified Umbrella Crimes 15

14 Topics for further Research 17

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

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

15 Impetus for reform 18

16 Law Makers’ conviction of the need for reform 19

17 Superior Judiciary’s Duty to Protect Rights of the Servicemen 19

18 Conclusion 19

3
CORRUPTION IN MILITARY JUSTICE SYSTEM
“In the determination of his civil rights and obligations of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law.” 1

1 Institutional Cor- tice system of the armed forces is ex- and Human Rights.
actly on the lines of a failure to recog-
ruption in Military nise the risks in the security domain
Justice System of the system. To expect humans, C Changed Societal Cir-
however lowly or highly placed, to cumstances & Need for
There is a widespread recognition act as paragons of virtue is to in- Overhaul
that corruption is morally venal and vite corruption. The only safe way
detrimental to the cause of Indian to tackle this is by separation of du- It is also pertinent that an institu-
security. Does this mean corrup- ties, checks and balances against each tional process to be corrupt it must
tion, which can be seen rampant in other and credible threat of punish- suffer from moral diminution. Un-
arms procurement and alleged pay- ment and high probability of detec- dermining institutional process would
backs which has been a serious issue tion of corruption. Risk taking is in mean a series of actions which are
from the mid 1980s? The above being human nature and when the probabil- taken, albeit, abiding by the Rules
very much the part of institutional ity of detection is low, even the oth- and Regulations as envisaged in any
corruption, we will, never the less, fo- erwise reasonably law abiding tends legal process, but which is, in the
cus ourselves on the aspect of corrup- to jump the red light as we all know. first instance and on the face of it,
tion in the Military Justice System When the stakes are high, the motives not morally, or ethically or for that
here. for risk taking is higher too. matter correct and judicious keeping
in mind the changed societal circum-
stances of the society and public opin-
A Constitution & B Changes in Institu- ion. Slavery, womens rights and tol-
Statutes: Separation of tional Process
erance to homo-sexuality are evidence
Duties & Checks and Corruption in any institution cannot of the changing nature of public opin-
Balances be assumed to be of recent origin, ion in the society. Connected with
rather a historical perspective has to the topical aspect of this paper, in-
From the perspective of Institutional be taken into account and on that ba- stitutional corruption in the Armed
Corruption, Corruption in the Mil- sis it has to be found out whether Forces can be attributed to failure of
itary Criminal Justice System may in the present condition such insti- our law makers in amending Article
be caused by the defective Consti- tutional corruption can be rectified 33 of the Indian Constitution to bring
tutional provisions, statutes, struc- or not as the mere fact that the it in tune with changed civil societal
tures, processes and/or the actions present constitutional and statutory norms and circumstances, and espe-
or omissions of the actors in the sys- safeguards or lack thereof relating to cially the Human Rights perspective
tem who are required to act as per the Armed Forces would undoubtedly and as per other developed nations’
the expectations. Failure to recognise further undermine the institutional notions of justice, and also persistent
the possible vulnerabilities, threats or process on the backdrop of citizen’s failure to review for a complete over-
risks of corruption in the criminal jus- constitutionally defined fundamental haul in the Military System of justice
1 European Convention on Human Rights (ECHR or Strasbourg Court) Article (6)1

4
consistent with the modern trends
in the society. What was right for
the Roman legions is obviously not
suited for the citizen soldiers of the
21st century. The failure of the mod-
ern military criminal justice system
can squarely be attributed to the fail-
ure of the society to appreciate this
and change with the times. Military,
bound by tradition may not see the
need for this change and may even be
highly antagonistic to any change and
that in no way means change is not
called for despite the smug satisfac-
tion of the traditional military brass.
The so called ‘military experts’ of the
Television and the writers in the pop-
ular media are fundamentally fraud-
ulent when they parade military ex-
pertise as expertise in finer aspects of
the concept of justice for the soldier,
sailor or airman. Thus, we have some
of the so called ’military experts’ glo-
rifying the ‘military criminal justice
system’ as some thing to be adopted
for the civil society. Society should Court, speaking for the majority in
question the fraudulent credentials of O’Callahan v. Parker, noted:
these so called ‘experts’.
2 Military justice is
not a true system of
law at all
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 be-
gan as a copy of the British system,
which itself was a copy of the early
Roman military law.
“In 17th century Eng-
land the practice of court-
2 Benso, Daniel H, Military Justice in the Consumer Perspective, Arizona Law Review,595 (1971), Vol 13, http://repository.law.
ttu.edu/bitstream/handle/10601/312/benson3.pdf?sequence=1 [accessed 2 October 2011]
martialing soldiers in
peacetime evoked strong
protests from Parliament.
Lord Chief Justice Hale
wrote that trial by mil-
itary courts may not
be permitted in time of
peace, when the King’s
Courts are open for all
Persons to receive Jus-
tice according to the Laws
of the Land.’ Hale com-
mented that military jus-
tice is not a true sys-
tem 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.” 2
Justice Douglas of US Supreme
“It was, therefore, the
rule in Britain at the
time of the American
Revolution that a soldier
could not be tried by
court-martial for a civil-
ian offense committed in
Britain; instead military
officers were required to
use their energies and of-
fice to insure that the
accused soldier would be
tried before a civil court.”
5
3 How does Corrup-
tion Manifest itself
In 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 distinction
can be made between individual cor-
ruption and organizational or institu-
tional corruption. In the context of
the state, corruption most often refers
to criminal or otherwise unlawful con-
duct by Government Agencies, or by
officials of these organizations acting
in the course of their employment.
Integrity, discipline and High
morale- the most battle winning
factors- being the hallmark in the
functioning of our armed forces, how
does then corruption snake its way
into the self contained Military Jus-
tice System?
“The court-martial is not
an instrument of justice
and impartiality; it is a
tool used to destroy those
targeted by corrupt men
who would manipulate the
system for their own de-
vious ends. For the mil-
itary, there are different
rules, two distinct sets
of laws. You’re either
in a category‘above it’,
or mercilessly beneath it’s
crushing weight. And
what does that do to the
families of our service
 men and women? It de-
stroys them. It shat-
ters their lives. It de-
pletes their life savings. It
causes a bitterness deep
within the soul of hu-
manity. It carelessly
and with impunity de-
stroys the very roots of
the Constitution on which
this nation was founded.
writes Glenda Ewing of
an advocacy group of vet-
eran families of USA.” 3
“Corruption mushrooms
under the Undue Com-
mand Influence. Military
justice for the majority is
prefabricated according to
the wishes of the Superior
Commander(s) in chain,
and the ‘trial’ or ‘court-
martial’ is tantamount to
a pre-ordained verdict of
Guilty. How could any
court proceeding be con-
sidered fair when the ‘con-
vening authority,’ by right
of title, is given the power
to select the judge, and
defense and prosecution ?
It may go ‘unsaid,’ but the
implication is very clear
- if the convening author-
ity ‘sees fit’ to bring about
a court-martial, then the
accused can be assumed
to be guilty. I find the
system to be incorrigi-
bly corrupt. Numerous
3 See Citizens Against Military Injustice, a non-profit advocacy organization http://www.militarycorruption.com/marinejustice.htm
an advocacy group for Justice for US Marines,
4 See Id.
5 Lt Col Prithi Pal Singh Bedi etc v Union of India and Others, A.I.R 1982, S.C 1413
6 Dicey A V, Introduction to the Study of the Law of the Constitution, http://www.constitution.org/cmt/avd/law_con.htm
convictions have been re- sonnel that high degree of
versed on appeal because honesty and sense jus-
of Unlawful Command In- tice which nearly all of
fluence. And it is rather them undoubtedly have,
strange that there is not a the members of a court-
single case where a com- martial, in the nature of
manding officer has suf- things, do not and cannot
fered prosecution for com- have the independence of
mitting that illegal act or jurors drawn from the
proceeding illegally with general public or of civil-
mala fide intent. Obstruc- ian judges.” 5
tion of justice is as sub-
versive of good order and
military discipline as any
other military offences.” 4 Concept of Rule of
writes the advocacy group
in their web site.” 4
Law
The Honble Supreme Court has In UK, Sir Edward Coke is said to be
observed that: the originator of the concept of Rule
of Law, when he said that the King
“Courts-martial are typ- must be under the god and law and
ically ad hoc bodies ap- thus vindicated the supremacy of law
pointed by a military offi- over the pretensions of the executives.
cer from among his sub- Later, Prof. Albert Venn Dicey devel-
ordinates. They have al- oped this concept. Dicey cited cases
ways been subject to vary- in support of his reference to each of
ing degrees of ‘command these high officials in his classic on the
influence’. In essence, Law of the British Constitution.6 :
these tribunals are simply
executive tribunals whose “With us every official,
personnel are in the exec- from the Prime Minister
utive chain of command. down to a constable or a
Frequently, the members collector of taxes, is un-
of the court-martial must der the same legal respon-
look to the appointing of- sibility for every act done
ficer for promotions, ad- without legal justification
vantageous assignments as any other citizen. The
and efficiency ratings- Law Reports abound with
in short, for their future cases in which officials
progress in the service. have been brought before
Conceding to military per- the courts and made, in
6
 their personal capacity, li- lives to defend and fight to the very 6 Rule of Law in the
able to punishment or to last bullet and the last man (and
the payment of damages, woman). The biggest tragedy is that
Scheme of Military
for acts done in their of- neither the soldiers and Generals nor Justice System
ficial capacity but in ex- the innocent volunteer for the mili-
cess of their lawful au- tary is aware of this tragic denial of Establishment of the Rule of Law re-
thority. A colonial gover- all legitimate rights for all time every quires a highly civilised society. To
nor, a Secretary of State, citizen of this nation is entitled to, begin with when States were gov-
a military officer, and all except perhaps in the most unusual erned by absolute rulers, there was no
subordinates, though car- circumstances of actual battle in the rule of law in its true sense, though
rying out the commands field. even from earliest times some rules
of their official superiors regulating human conduct in society
are as responsible for any “Innocent until proven guilty by were observed and enforced by such
act which the law does not an impartial judge” is the right of ev- rulers through judges appointed by
authorise as is any pri- ery human. The military deserves a them. Rule of Law, as we understand
vate and unofficial per- justice system that can seek out the today, is a necessity of a democratic
son.”7 truth without fear of retaliation. But state where, no individual is inter-
does it work this way in the Military fered with or punished unless a law
In the United States, Judge John
criminal justice system? One would is broken. There are no discretionary
J. Sirica could comfortably stretch
hope that the recent spate of widely or arbitrary arrests, rulings or actions
the arm of the law to reach a Pres-
publicized trials by court-martial of by the ruling power (the executive).
ident in office, Richard Nixon, in the
high ranking Generals have focused The law applies to every individual
Watergate affair.
national attention on fairness of the and in the same way. All officials
military justice system but circum- are under the same responsibility as
5 Legitimate Rights stances repeatedly reveal that any any other citizen for every act they do
such hope is all belied. without legal justification. No one is
of Servicemen for given any concession under the law or
Rule of Law Some observers have even con- in the courts for their rank, position
cluded that Military Justice is no or condition.11
Our veteran have adopted for them- more than some drum head justice The stage or Rule of Law was first
selves a career of commitment and and that military justice is to justice reached in the democratic States of
sacrifice for the nation for defending as military music is to music, writes a the West. Now Rule of Law envis-
our borders, for defending our free- distinguished jurist.8 No wonder, to ages, first, a uniform body of laws
doms and national integrity. But, be court-martialed in the Army lingo to regulate all human conduct in the
tragically, these very men (and mean to be convicted!9 As one US State which is a manifestation of a
women) are denied the very same ex-Navy lawyer recalls, ‘The general well-organised society; secondly, de-
rights under the Indian Constitution attitude seemed to be that a man was cision of all disputes by independent
( and that too by a very devious slight going before a court-martial to re- courts not only between subject and
of hand ) that they have pledged their ceive a sentence rather than a trial.’10 subject or citizen and citizen but also
7 See Id.
8 Harry N. Scheiber and Jane L. Scheiber,‘Bayonets in Paradise: A Half-Century Retrospect on Martial Law in Hawaii, 1941-
1946,’UNIV. OF HAWAII LAW REV. vol. 19, pp. 477-648 (1997, published 1998)
9 West, Command Influence, in CONSCIENCE AND COMMAND: JUSTICE AND DISCIPLINE IN THE MILITARY 73 (1. Finn

ed. 1971)
10 Times, Friday, August 13, 1965 Times Criminal Justice: The Serviceman’s Rights
11 Janet Munro-Nelson, Rule of Law, A Foot Note in Time, November 2008, http://the-beacon.info/topics/
international-law-united-nations/rule-of-law/ [accessed 8 Nov, 2011]

7
between the subject or the citizen
on the one side and the State on
the other, with freedom to the sub-
ject/citizen to approach the courts for
redress against the State without hav-
ing to ask for permission before doing
so; and thirdly, establishment of reg-
ular courts manned by independent
judges to decide disputes. It is only
when these conditions are fulfilled in
any State that we may say that Rule
of Law in its true sense prevails in
that State.
A Principle of Legality
The notion of Rule of law in the
scheme of Military Justice System,
has its major feature in the princi-
ple of legality, which is characterised
by at least three dimensions. Firstly,
it lays emphasis on the smooth func-
tioning of administrative and judicial
organs 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 power
in the Armed Forces and the individ-
uals whose lives are affected by the
exercise of their power to make them
undergo proceedings. In such a situa-
tion the Rule of law marks the trans-
formation of the individuals juridi-
cal status from a mere subject into
a responsible citizen. The third di-
mension acknowledges the right to a
fair trial for all the personnel of the
Armed Forces. The notion of fair trial
includes a set of guarantees for the in-
dividual vis vis the Military Justice
System. There are several obligations
for authorities like independence and
impartiality of the tribunal, adoption
12 Handbook, Center for Democracy and Governance, U.S. Agency for International Development: A Handbook on Fighting Corruption,
Feb 1999 http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnace070.pdf Last accessed 8 Nov 2011
of decisions not on the basis of wis-
dom but laid down laws, publicity
of hearings, equality between the de-
fence and the prosecution through the
trial (presumption of innocence until
proven guilty; rights to prompt no-
tice of nature and cause of criminal
charges, to defend oneself in person or
through a legal counsel, to an inter-
preter, to be present during the hear-
ings, to examine witness, to appeal
and to get compensation for miscar-
riage of justice) and reasonable dura-
tion of the trial.
B Autonomous judiciary
All this can be ensured only through
an autonomous judiciary and the dis-
pensation of justice in the back drop
of Rule of Law cannot be left in the
hands of few top brass who may not
be infallible to corruption and cor-
rupt practices. The power to order
or not to order a Court Martial is the
most crucial command duty, and if
that alone determines who gets pun-
ished and who does not depending on
the whims of the commander, then
it makes the military justice system
corrupt, unjust and violative of hu-
man rights. A system based purely
on the pivotal Administrative power
alone can not pass the muster of hu-
man rights by any stretch of logic or
imagination.
8
7 Position of Conven-
ing Authority- Risk
of Corruption
“From an institutional
perspective, corruption
arises where public offi-
cials have wide authority,
little accountability, and
perverse incentives. This
means the more activities
public officials control or
regulate, the more op-
portunities exist for cor-
ruption. Furthermore,
the lower the probability
of detection and punish-
ment, the greater the risk
that corruption will take
place.”12
Too much of power vested in a sin-
gle authority make them dispensers of
favour and fortune. This is when ar-
bitrariness and corrupt practices seep
into the otherwise self contained code
of Military Act. To understand this,
it is pertinent to know the position of
the Convening Authority.
A convening officer is the most
crucial 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 assumes
full responsibility for every case to be
tried by Court Martial. He orders the
Court of Inquiry. He selects the of-
ficer(s) to conduct the Court of In-
quiry, he is empowered to accept or
reject the Court of Inquiry findings,
he decides 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 ap-
point. He orders the Judge Advocate
Generals office to appoint Judge Ad-
vocate and failing such appointment,
he 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 the
prosecuting officer and to the judge
advocate, and could indicate the pas-
sages 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 opportunity to
prepare his defense, legal representa-
tion if required and the opportunity
to contact the defense witnesses, and
was responsible for ordering the at-
tendance at the hearing of all wit-
nesses reasonably requested by the
defense. The convening officer could
dissolve the court martial either be-
fore or during the trial, when required
in the interests of the administration
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 convening officer usually acts
as confirming officer also. While he
may seek JAG advise, he is not bound
by that. Courts Martial findings are
not effective until confirmed by a con-
13 Findlay v. The United Kingdom (110/1995/616/706) 25 February 1997: Independence and Impartiality of Court-martial; Convening
officer central to prosecution and closely linked to prosecuting authorities. http://www.hrcr.org/safrica/administrative_justice/
findlay_uk.html[Last accessed 8 Nov 2011]
firming officer. Prior to confirma-
tion, the confirming officer used to
seek the advice of the Judge Advo-
cate Generals Office, where a judge
advocate different from the one who
acted at the hearing would be ap-
pointed. The confirming officer could
withhold confirmation or substitute,
postpone or remit in whole or in part
any sentence. Once the sentence is
confirmed, the defendant could peti-
tion the reviewing authorities. The
reviewing authorities could seek the
advice of the Judge Advocate Gen-
erals Office. He has the power to
quash a finding and to exercise the
same 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, it
is not out of place to mention that
the convening officer will or might act
according to his notions and preju-
dices. He occupies a position of van-
tage with reference to the accused.
He often has facts favourable to the
defense of which the accused is nec-
essarily ignorant. In these circum-
stances the plight of the accused is
in the hands of the convening author-
ity who has to act in good faith and
remember that it can reflect no credit
on him, to secure a conviction in the
teeth of facts.
9
A Discipline v. Citizen
Servicemans Rights
No one can deny the fact that there
is a need for order and discipline
in order to ensure that the armed
forces function effectively. The chain
of command in the armed forces is
kept sacrosanct both in peace time
and war time to ensure that the sol-
diers, the sailors and the airmen have
avenues for redress of their genuine
grievances. This is an executive func-
tion When this function is intermin-
gled with the judicial function, there
ends the citizen serviceman’s right to
due process which is a fundamental
human rights as hailed by Human
Rights courts in Europe.
It did not require much delibera-
tion for the European Court to pro-
nounce that the court martial was
not an ‘independent and impartial
tribunal’, that it was not a tribunal
’established by law’. The members
of the court martial were appointed
ad hoc, that the judge advocates ad-
vice on sentencing was not disclosed,
that no reasons were given for the
decisions taken by the court-martial,
the conforming and reviewing offi-
cers, and that the post-hearing re-
views were essentially administrative
in nature and conducted 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). All the
officers appointed to the court were
directly subordinate to the convening
officer who also performed the role of
prosecuting authority. The lack of le-
gal 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 man-
ner.13
8 Unlawful Com-
mand Influence
‘Unlawful Command influence’ is the
biggest bane of the military justice
system.
One military judge colorfully de-
scribed UCI as:
The mandate of United States [v.]
Biagase, 50 M[.]J[.] 143 [C.A.A.F.
1999] could not be more clear. Un-
due and unlawful command influence
is the carcinoma of the military jus-
tice system, and when found, must be
surgically eradicated. And this is go-
ing to be what we are about to see,
the eradication of something that has
shocked the conscience of this court.
The following are facts of life:
1. The convening officer orders the
Court of Inquiry and selects the
Presiding officers and members
and indicates covertly or even
openly what he wants done. In
other words influences the out-
come of the Court of Inquiry.
2. Convening Officer can reject the
Court of Inquiry and order an-
other Court of Inquiry to get
the out come he wants and the
officers in the Court of Inquiry
are subordinates to him and
have to get reports from him to
get next promotion/posting.
3. Convening officer orders the
Court Martial and appoints
the President and Members of
the Court Martial, prosecu-
tion,Defence counsel.
4. Members of the court jolly well
know that ‘if the convening au-
thority sees fit to bring about a
court-martial, then the accused
can be assumed to be guilty.’
5. No prosecuting officer has ever
been taken to task for doing a
good job of prosecuting. He
has on his side the whole of the
judges even before the trial has
started.
6. If any Defending officer tries
to do a good job of defending,
he knows that he will be taken
to task later and the unwritten
convention is very well known
to one and all. No defending of-
ficer has ever been taken to task
for doing a poor job at the de-
fence!
7. Court Martial decision is not ef-
fective unless approved by the
convening officer. If he does not
like the decision, he can order
an an alternative retrial by a
new court martial and the new
members know why the retrial
is being conducted and what is
expected of them
8. Judge Advocate knows that
his promotion and advancement
in the career depends upon
the carrying out the wishes of
the Commander and the JAG
knows what the wishes of the
commander are. JAG is the
one who influences the course
of the court martial! Instead of dence of such a court and how fair
facilitating impartial justice, he will it be to the accused? If such a ju-
by his position is actually the dicial system is not acceptable to the
10
one who influences the decisions
and thus acts as the kingpin in
the ‘obstruction of justice’.
9. The investigator, prosecution,
the court, the defence all dance
to the tune of the commander
and try their best to make his
wishes come true.
10. If a hypothetical equivalent sys-
tem were to be designed for the
rest of the Indian citizen, it will
go some thing like this:
(a) Abolish the supreme court.
(b) The Secretary, Home Min-
istry orders the court as
and when needed with his
subordinate bureaucrats as
judges.
(c) Secretary, Home Ministry
appoints the prosecution
and the defence counsels in
addition.
(d) All judges and prosecution
and defence counsels are
untrained in law.
(e) He appoints only one
legally qualified person as
judge advocate to the court
but he has only advisory
role and his advice is not
binding on the judges to
find guilty or have any say
in punishment.
(f) The decisions of the court
are not mandatory till it is
approved by the Home Sec-
retary!
How great will be the indepen-
cititizen, to impose the current mili- A UCI Actual and Ap-
tary judicial system on the citizen sol-
dier is patenetly defective in statute,
structure and processes. To deny this
truth would be irrational and illogi- Thus actual UCI affects the fairness
cal.
9 Analysis of the System. Unlawful Command Influ-
High Court of Aus- ence
tralia Judgement
Analysis of Australian judgement14
makes it clear that:
1. Courts martial are created by
Act of Parliament but violative
of 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 if
confirmed by the executive and
only for the period of execu-
tive’s pleasure.
4. Court does not have ‘Contempt
of Court’ powers.
5. Courts martial are part of the
executive and NOT the judi-
ciary!
Exactly same arguments are 100%
true in Indian Context too with
more conviction because unlike Aus-
tralians, we have NOT even created
permanent courts like Australian Mil-
itary Courts(AMC) !
14 Lane v. Morrison [2009] HCA 29 26 August 2009 C3/2008 http://goo.gl/K85ZmAccessed 8 Nov 2011
15 N.R. Ajwani vs Union Of India (Uoi) And Ors. Delhi High Court on 21 December, 2000 Equivalent citations: 95 (2002) DLT 770
http://indiankanoon.org/doc/1408854/ Last accessed 8 Nov 2011
pearance of UCI
of a trial, while the appearance of
UCI merely affects the level of pub-
lic confidence in the Military Justice
was illustrated in an appeal in
the Delhi High Court, in which offi-
cers were court martialled for alleged
offences and the Honble Court Held:
“Law reigns supreme and
that is the constitutional
mandate in this country.
The Military Intelligence
Directorate cannot, under
the parameters fixed un-
der the constitution and
under the provisions of
the Army Act and Army
Rules, assume the role of
a prosecutor and a judge
of its own cause. To give
an air of verisimilitude
the respondents (military
authorities) had held the
court martial proceedings
which are wholly void.”15
“Conclusion: When you
divorce the Military from
Military Justice, you are
left with Justice!”
11
10 The Constitution
viz a viz Statutes
A Article 33 & The Army
Act, the Navy Act and
the Air Force Act.
These Acts were enacted under Ar-
ticle 33 of the Constitution so as to
maintain high standard of discipline
and obedience, the ultimate aim be-
ing to ensure combat readiness, which
enables the morale of the fighting
troops to that degree where they will-
ingly and enthusiastically lay down
their lives for the sake and honour
of the country. But what is to be
seen is that it is his sense of duty,
his sense of pride, his self-discipline
which are more important than a dis-
cipline which is imposed. Hence, we
must concentrate and try to develop
an atmosphere of self-discipline which
is of paramount importance.
B Fundamental Rights
Right to Life and Liberty in the
scheme of our Constitution was
placed at the paramount position and
all other rights enumerated under
Art. 14 to 32 of the Indian Consti-
tution, were incorporated as means
to protect and secure that very right
to Life and Liberty to each individ-
ual sovereign member of the polity
from encroachment by any other per-
son or authority or even the State.
While so doing, We the People of In-
dia did not create any classification
among ourselves so far as protection
of that Right to Life and Liberty was
concerned. In recognizing the right to
Life and Liberty, we made no distinc-
tion or discrimination between men
and men. We held that this right to
Life and Liberty was equally the in-
alienable possession of each and ev-
ery person irrespective of his or her
caste, creed, colour or country. That
was why we used the word PERSON
instead of CITIZEN or any other de-
scription while declaring these rights
as being inalienable under Article 21
of the Indian Constitution.
C Limits on the State
Pursuant to our solemn Resolution
dated 22.01.1947, by incorporation of
Article 13 in the Constitution, we had
circumscribed the limits within which
any future Parliament could legislate
by laying down:
ARTICLE 13
laws Inconsistent with or in dero-
gation of the fundamental rights:–
(1) All laws in force in the terri-
tory of India immediately before the
commencement of this Constitution ,
in so far as they are inconsistent with
the provisions of this Part, shall, to
the extent of such inconsistency, be
void.
(2) The State shall not make any
law, which takes away or abridges
the rights conferred by this Part and
any law made in contravention of this
clause shall, to the extent of the con-
travention, be void.
(3) In this Article, unless the con-
text otherwise requires:–
(a) ‘law’ includes any Ordinance,
order, bye law, rule, regulation, no-
tification, custom or usage having in
the territory of India the force of law.
16 [NOTE that Article 13 (4) did not form part of original Constitution which We did adopt, enact and gave to ourselves on 26.11.1949
and was inserted by the Constitution [Twenty Fourth Amendment] Act, 1971, Sec 2.]
(b) ‘laws in force’ includes laws
passed or made by Legislature or
other competent authority in the ter-
ritory of India before the commence-
ment of this Constitution and not
previously repealed, notwithstanding
that any such law or any part thereof
may not be then in operation at all or
in particular areas.
[(4) Nothing in this article shall
apply to any amendment of this Con-
stitution under Article 368].16
Even though this Article was in-
corporated in the Constitution as an
abundant caution to protect the Fun-
damental Rights from the State in-
terference, a definite shift in certain
quarters of the Constituent Assem-
bly is quite perceptible. Whereas
in the Constituent Assembly Resolu-
tions these Fundamental Rights have
been referred to as inalienable and the
State was only to secure and guar-
antee the unhindered enjoyment and
possession thereof by each and ev-
ery person [constituent member of We
the 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 ITS
CITIZENS Right to Justice, Liberty,
Equality and Fraternity. Article 13
treats these Fundamental Rights,not
as inalienable natural attributes al-
ready possessed by each and every
individual sovereign member of We
the People of India, but as some-
thing which is given as mercy, granted
12
as a dole, conferred at pleasure by
some superior being. This approach
by the Constitution Makers made
FREEDOM OUR BIRTH RIGHT [in
the words of Lokmanya Tilak] FREE-
DOM conferred upon us at the mercy
of The Executive, which was created
under the Constitution, which Con-
stitution We the People of India cre-
ated, adopted, enacted and gave to
ourselves. Thus by a sleight of words
practiced in the drafting of the Con-
stitution, Creature [The Executive]
was placed in a commanding position
over its Creator [We the People of In-
dia].
E Article 33 is in violation
of the Constitution
It is interesting to note that despite
there being a clear mandate against
allowing any pre-constitution law in-
fringe upon the Fundamental Rights
affirmed by We the People of India as
being inalienable, Article 33 was in-
serted in the Constitution by a pro-
cess which was nothing less than a
fraud played upon the Constituent
Assembly by certain persons having
vested interests in creating Armed
Forces consisting of persons having
status of nothing more than SLAVES
by cheating our own sons of the soil
of their Fundamental Rights by first
luring them to join the Armed Forces
by praising them sky high as valiant
defenders of the Nations Sovereignty
and then without even letting them
know throw them into institutional-
ized slavery and legalizing that slav-
ery in the name of this Fraud upon
the Constitution that Article 33.
F Citizen Servicemans ery change in the rules which impairs not be abridged completely neither by
Rights
Thus the first casualty of the failure
as detailed above is Citizen Service-
mans rights. Considering that the
Servicemen have dedicated their lives
for the defense of the rights of the cit-
izens, to deny these very servicemen
the rights which the general citizens
enjoy would be very tragic. While
some rights will need to be compro-
mised or curtailed altogether for the
peculiar nature of war in theatres of
war, this does not justify the denial of
the same altogether for the whole of
their career for these very same peo-
ple who dedicate their lives for the
defense of the same for the rest of the
citizenry.
US Congress enacted the code
in 1950 in response to complaints
about ‘drum head justice’ during
World War II, when the number of
courts-martial hit 750,000 a year. In
one sense, the complaints were no
surprise; civilian soldiers, whether
draftees or volunteers, have made
known their distaste for military rules
in every U.S. war since the Revolu-
tion. But Congress was also aware of
the professional soldier’s compelling
argument that autocracy is a mili-
tary necessity. As General William
Tecumseh Sherman warned in 1879:
“An army is a collection of armed
men obliged to obey one man. Ev-
17 Time: Criminal Justice: The Serviceman’s Rights Friday, Aug. 13, 1965 Read more:http://www.time.com/time/magazine/article/
the principle weakens the army.”17
11 Servicemens
Rights to Human
Rights
...the adoption of the HRA, which
incorporated most of the Euro-
pean Convention on Human Rights
(‘ECHR’ or ‘Strasbourg Court’) and
obligated domestic courts to apply in-
ternational human rights law. The
HRA has renewed focus on the inde-
pendence of the judiciary. 18
6(1) states:
In the determination of his civil
rights and obligations or of any crim-
inal charge against him, everyone is
entitled to a fair and public hearing
within a reasonable time by an inde-
pendent and impartial tribunal estab-
lished by law. Judgment shall be pro-
nounced publicly but the press and
public may be excluded from all or
part of the trial in the interest of
morals, public order or national secu-
rity in a democratic society, where the
interests of juveniles or the protection
of the private life of the parties so re-
quire, or to the extent strictly nec-
essary in the opinion of the court in
special circumstances where publicity
would prejudice the interests of jus-
tice.
The rights of the servicemen can
the constitution nor by the statutes
beyond what is the minimum need
for the proper functioning of the land,
sea and air forces in a war like situa-
tion.19
In 1962, Earl Warren, then Chief
Justice of the United States, lectured
at New York University on The Bill
of Rights and the Military and ex-
pressed his conviction that the guar-
antees of the Bill of Rights were not
antithetical to military discipline. In
doing so, he acknowledged that mili-
tary service would affect the exercise
of those rights, and he also alluded
to a perennial problem: deciding who
would be subject to military law and
thus within the jurisdiction of courts-
martial.20
Men should be confident that they
will get justice and fair play from the
society and from Government. Re-
grettably, today the morale is com-
pletely missing. If at all there is
anything, there is a growing feeling
among the service people that the
Government is indifferent, insensitive
and is, in fact, deliberately denigrat-
ing the soldiers. Maj.Gen. (Retd.)
V. K. Madhok, who was the Addi-
tional Director-General of the Terri-
torial Army and a fine soldier had
said:
“However, it needs to be noted
with great concern that nothing can
be more disturbing to a soldier than to

0,9171,834202,00.html
18 James Hyre, The United Kingdom’s Declaration of Judicial Independence: Creating a Supreme Court to Secure Individual Rights

Under the Human Rights Act of 1998, 73 Fordham L. Rev. 423 (2004),http://ir.lawnet.fordham.edu/flr/vol73/iss1/14 last accessed
8 Nov 2011. ‘The HRA incorporates most of the ECHR, including Article 6, which recognizes the right to a fair trial’. See Human Rights
Act, 1998, c. 42, sched. 1 (Eng.),Article available athttp://www.legislation.hmso.gov.uk/acts/acts1998/80042-d.htm.
19 See generally Eugene R. Fidell, Dwight Hall Sullivan Evolving Military Justice Naval Institute Press, 2002 - Law - 362 pages

http://books.google.com/books/about/Evolving_military_justice.html?id=G3tYljWV_zEC Last accessed 8 Nov 2011

20 Oxford Companion to US Military History: Citizens’ Rights in the Military. http://www.answers.com/topic/
citizens-rights-in-the-military#ixzz1YzDMJQWP

13
lose faith in the Systems. The system,
whether it is promotional, whether it
is reward or whether it is punish-
ment”
The Military Justice System can-
not be solely for the purpose of en-
forcing obedience in a hierarchical
fashion, it must also ensure fairness.
A lack of fairness in the administra-
tive and disciplinary process can seri-
ously undermine the cohesion, morale
and discipline of the personnel and
impact negativity on unit effective-
ness in peace as well as war.21
The Indian Supreme Court has
observed:
“Our Constitution envisages a so-
ciety governed by rule of law. Abso-
lute discretion uncontrolled by guide-
lines which may permit denial of
equality before law is the antithesis
of rule of law. Equality before law
and the absolute discretion to grant or
deny benefit of law are diametrically
opposed to each other and cannot co-
exist.”22
The right to a fair trial is a fun-
damental safeguard to ensure that the
individuals are protected from unlaw-
ful and arbitrary deprivation of their
human rights and freedoms. The Mil-
itary law being followed is archaic and
its provisions dates back to 1911, a
law made for the slaves by the British.
The British Military Justice system,
conceived of, to discipline a Merce-
nary force, is the progenitor of In-
dian Military Justice system.23 But
the provider of this System, i.e, the
Britishers, along with countries like
United States of America, Australia,
21 Jha, UC., The Military Justice System in India: An Analysis 2000 pg-141
22 Sudhir Chandra v. Tata Iron and Steel Co. Ltd, A.I.R 1984, S.C 064
23 Jha, UC.,The Military Justice System in India: An Analysis , pg-293
24 Findlay v. The United Kingdom, 110/1995/616/706, Council of Europe: European Court of Human Rights, 25 February 1997,
Canada and South Africa, whose Mil-
itary Justice system also originated
from British Articles of War, have
undergone substantially vast changes
owing to the changing Human Rights
Concepts and criticism of the Judi-
ciary. Most of the archaic provisions
being still intact in the Indian Mili-
tary Justice System, reminds one of
the mentality and perception of our
Parliamentarians who have not come
out of the theory of subjugation and
rule. Most aptly put, we can refer to
Platos Cave Equation which goes like
this - The three stages of enlighten-
ment, or perception if you will: The
least enlightened are the slaves tied
down, and turned to face the wall of
the cave; They have been in this po-
sition all their lives, never seeing any-
thing but the cave wall, perceiving
this to be the true reality, the only
reality. The only notion they have
of life comes from shadows cast by
their masters dancing ’round a fire
in this cave, in this process form-
ing the perceived reality of the slaves
through these cast shadows. The
slave masters represent the medium
enlightened; They are the ones in
power; Controlling every aspect in
the lives of the enslaved. The final
stage of enlightenment is stepping out
of the cave; Experiencing sunlight, no
chains impeding your motions, no col-
lar ’round your neck, seeing the world
for what it really is... water’s wet and
the sky is blue. It is high time that
we come out of our slumber and start
acting, start giving respect to those
who gladly lay down their lives for our
better tomorrow.
The military justice system as it
exists in India to day is violative
of Human Rights on most important
counts. The apathy of the military
and the veteran pressure groups to
fight for these rights with study and
research is not some thing we can be
proud of. The veteran groups also
may be more interested in pension re-
lated demands and not for restoration
of basic human rights in the military
justice system.
A European Court of Hu-
man Rights & the Mili-
tary
In a case in the European Court of
Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Con-
vention for the Protection of Human
Rights and Fundamental Freedoms
(”the Convention”) ruled that court
martial as followed in the UK
was violative of human rights.
These were successfully raised against
the United Kingdoms Army Act in
1997 in the case of Findlay v. the
United Kingdom before the European
Court of Human Rights.24
The case of Findlay v. UK, de-
cided by the European Court of Hu-
man 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 proves the
point that it is just a matter of time

available at: http://www.unhcr.org/refworld/docid/3ae6b66d1c.html [accessed 8 Nov 2011]

14
that some one raises human rights vi- v. Parker land mark ruling (while enthusiasm generated when AFT was
olation of all courts martial as prac- may not be authoritative, is very inaugurated, it should be stated that
ticed in India. While UK had revised persuasive for us in India as far as these are part of the executive and
their military justice system substan- the legal principles are concerned) do not have the independence of the
tially even before United Kingdoms held with regard to who can and can higher judiciary not to talk of the
Army Act in 1997, our current Army not be court martialed. Succinctly teeth required to ensure its decrees
Act is largely same as what the colo- stated, it says, Court martial can not are executed. AFTs are just paper
nial power left for us while leaving the try tigers violating the Human Rights of
country in 1947. This is definitely a the soldier!
1. when nature of crime and mili-
matter of shame.
tary duty has no direct connec- “Though there is an ex-
In a scathing critical remark, US tion.
Supreme court stated in O’Callahan clusive body to deal with
v. Parker,25 the catch all Article 134, 2. discharged/retired soldiers for such litigation, some in-
( and in our case Section 63 of Army offenses committed while in ser- house attitudinal changes
Act : Conduct prejudicial to good or- vice. are much desired which
der and military discipline), punishes should not be just re-
3. unless Military status, nature of jected at the threshold.
as a crime ’all disorders and neglects crime, time and place of offence
to the prejudice of good order and The AFT cannot be a
all put together give it jurisdic- panacea for all problems.
discipline in the armed forces.’ Does tion.
this satisfy the standards of vague- All stakeholders should
ness as developed by the civil courts? be open to flexibility in
thought and action with-
It is not enough to say that a court- 12 Armed Forces Tri- out which all statutory
martial may be reversed on appeal.
One of the benefits of a civilian trial
bunal and Parliamentary steps
is that the trap of Article 134 may would not result in full re-
The recent institution of the Armed alization of the final ob-
be avoided by a declaratory judgment
Forces Tribunal, under the Act ,
proceeding or otherwise. A civilian jective.”27
2007, having an Original as well
trial, in other words, is held in an
as Appellate Jurisdiction, does not
atmosphere conducive to the protec-
have any jurisdiction in matters re-
tion of individual rights, while a mili-
lating to transfers, postings, leave
tary trial is marked by ”the age-old
13 Mens Rea & un-
and Summery Court Martial (except
manifest destiny of retributive jus-
where punishments involve dismissal specified Umbrella
tice.” As recently stated: ”None of
or imprisonment for more than three
the travesties of justice perpetrated
Crimes
months). This serious lacuna in its
under the Uniform Code of MilitaryOriginal Jurisdiction leaves space for The most necessary aspect in a crime
Justice (UCMJ) is really very surpris-
corrupt practice to seep in in the form is the mental intent of the accused.
ing, for military law has always been
of discretion of the Commanding Of- At common law, conduct could not
and continues to be primarily an in-
ficers. That there is no provision of be considered criminal unless a de-
strument of discipline, not justice.”.26
legal aid in the said Act, itself un- fendant possessed some level of in-
US Supreme Court in O’Callahan dermines Fair Trial. Inspite of the tention either purpose, knowledge, or
25 See O’Callahan v. Parker, 395 U.S. 258 (1969)U.S. Supreme Court http://supreme.justia.com/us/395/258/index.html [accessed

8 Nov 2011]
26 Glasser, Justice and Captain Levy, 12 COLUM. F. 46 (1969) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=

case&court=us&vol=395&invol=258 [accessed 5 June 2011]

27 Ghanshyam Prashad J, THE JUDICIARY AND MILITARY LAW, The tribune 4 Nov 2011 http://www.tribuneindia.com/2011/

20111104/edit.htm#6 Last accessed 8 Nov 2011

15
recklessness with regard to both the
nature of his alleged conduct and the
existence of the factual circumstances
under which the law considered that
conduct criminal. This is termed as
Mens Rea in legal parlance. From
Men Rea perspective, any crime that
is not specifically detailed and listed
out clearly well before the charging
will not meet the constraints of Mens
Rea and hence can not form the part
of punishable crimes. This important
principle of any criminal justice sys-
tem is given a complete go by and is
grossly violated in case of umbrella
crimes under ‘Devils Article’ Section
63 of Army Act (Violation of good or-
der and discipline. Any person sub-
ject to this Act who is guilty of any
act or omission which, though not
specified in this Act, is prejudicial
to good order and military discipline
shall, on conviction by court- martial,
be liable to suffer imprisonment for
a term which may extend to seven
years or such less punishment as is
in this Act mentioned.) US Military
has attempted to list out all crimes
that could be charged under similar
umbrella crimes. No such effort is
recognised in India and disturbingly,
more and more cases, when the au-
thorities can not find any other spe-
cific charges, they fall back on such
umbrella provisions. A study of re-
cent trends would lead one to con-
clude that the fundamental require-
ments of mens rea is grossly violated
in attempt to “discipline & punish”
under these umbrella crimes.
“Bentham’s Panopti-
con is, for Foucault, an
28 Gutting, Gary, “Michel Foucault”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.), http:
//plato.stanford.edu/archives/fall2011/entries/foucault
29 ibid
ideal architectural model
of modern disciplinary
power. It is a design for
a prison, built so that
each inmate is separated
from and invisible to all
the others (in separate
“cells”) and each inmate
is always visible to a mon-
itor situated in a central
tower. Monitors will not
in fact always see each
inmate; the point is that
they could at any time.
Since inmates never know
whether they are being
observed, they must act
as if they are always ob-
jects of observation. As a
result, control is achieved
more by the internal mon-
itoring of those controlled
than by heavy physical
constraints. The prin-
ciple of the Panopticon
can be applied not only
to prisons but to any sys-
tem of disciplinary power
(a factory, a hospital, a
school, and in our case
the military). And, in
fact, although Bentham
himself was never able to
build it, its principle has
come to pervade every
aspect of modern soci-
ety. It is the instrument
through which modern
discipline has replaced
pre-modern sovereignty
(kings, judges) as the
fundamental power re-
lation.”28
16
‘Devils Article’ (Section 63 of
Army Act) is like a Panopticon
through which the established mili-
tary authority controls the subjects
within its power. The high pro-
file courts martial of Generals of the
Army in recent times puts all sub-
ject members (which means the en-
tire military from highest generals to
the lowly soldier) under the terror of
being subject to observation as when
the 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 Section
63 but it can be applied as per the
wishes of the power. Foucault par-
ticularly emphasizes how such reform
also becomes a vehicle of more effec-
tive control:
“to punish less, perhaps;
but certainly to punish
better’. He further ar-
gues that the new mode
of punishment becomes
the model for control of
an entire society, with
factories, hospitals, and
schools (and in our case
the military) modelled on
the modern prison.”29
From this perspective the whole
Military could be considered a grand
design to punish any one that has
stepped out of its ‘normal behaviour’.
The constant fear of being targeted
for such punishment under ‘Devils
Article’ (Section 63 of Army Act)
is the same as the “inmates never
know whether they are being ob-
served, they must act as if they are al-
ways objects of observation.” This is
cruel and inhuman as the fundamen-
tal requirements of mens rea is not
required to punish and hence in vio-
lation of fundamental Human rights.
The ideas here are too sophisticated
to be known to the defendants and
hence escape the radar of the defense
counsels!
14 Topics for further
Research
B Comparative study of
A Need for Genuine Re-
form in Military Justice
“The trouble with doing a
thing for cosmetic reasons
is that one always ends
up with a cosmetic result,
and cosmetic results, as
we know from inspecting
rich American women,
are ludicrous, embarrass-
ing and horrific.”30
It is a fact that the Armed Forces
being a specialized society with its
own set of tradition, has a law which
has its basis in obedience, neverthe-
less, providing an atmosphere where
unquestionable obedience is culti-
vated by posing a threat that dis-
obedience will be penalized, cannot
be accepted. That the Forces re-
quirement to uphold discipline can be
understood with regard to offences
like desertion, dereliction of duty, ab-
sent without leave and disobedience
of command, but penalising such of-
fences has to be in conformity with
human rights perspective. Strangely,
even in disobedience of command the
30 Stephen Fry, Moab is My Washpot 23 (1997).
31 Jha,U.C.,The Military Justice System in India: An Analysis, Chaper 9. Para 2.
32 Jha,U.C.,The Military Justice System in India: An Analysis, pg 299
ability to recognise a legal command vision. Secondly as in British Mil-
from an illegal command emanates itary Justice System, the duties of
out of “loyalty to the constitution” the convening authority relating to
and not to individuals. A Military convening a Court Martial, should
Trial should not have a duel function be divided between two independent
as an instrument of discipline and as authorities- the Prosecuting author-
an instrument of justice, but must ity and the Court Administrative au-
rather be an instrument of justice. In thority.32 The pre-trial instruction to
fulfilling this function it will also pro- court member to be curtailed. Any
mote discipline.31 extra-judicial pressures which acts as
Obstructio of justice and should be
made a cognizable offence.
reform of the Military
D Effective Judicial Re-
Justice System
view of Due Process &
A comparative study of reform of the the Convening Author-
Military Justice System of the Devel- ity
oped world which have to a large ex-
tent been able to control and limit ac- The convening authority with its
tual bias and accusations and percep- unbridled powers goes unquestioned
tion of unlawful command influence even when it exerts unlawful com-
in judicial proceedings by restricting mand influence. In India there is no
the role of convening authority and system of Judicial Review for such ac-
drawing up a tentative list of reform tions of the convening authority. For
from the best practices in other lib- Rule of Law to be effective in any in-
eral democracies of the world, we can stitution, open and transparent ac-
draw our own list: cess to Judicial Review is the need
of the hour. The convening author-
ity should be held accountable for its
C Limiting the Role Of corrupt or biased actions. Military
Convening Authority judges to be insulated from non-legal
chain of command. Full time trial
The convening authority, owing to his
and defence should be outside the in-
dominant position and control over
fluence of the commanders.
every aspect of the disciplinary pro-
ceedings, holds an authoritative and
influential position which at times is E Independence of the
used against the detriment of the ac- Judge Advocate Gen-
cused. Thus to stop any kind of cor- eral Branch
rupt practice first and foremost step
to be taken should be to abolish the Removing the Judge Advocate Gen-
convening authorities power to con- eral from the chain of command and
firm, or review or refer a case for re- putting it under the Ministry of De-
17
fence, would ensure fair trial as it
would 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 Court
Martial and should be vested with
powers to decide on questions of law
instead of merely advising the Court
on these questions. This is very im-
portant as the Court consists of of-
ficers who are not conversant with
Law. The Judge Advocate should
also have a say as to the quantum
of punishment in a Court Martial as
it pertains to principles of penology
and jurisprudence and this will help
in proper adjudication. It will lessen
unjust and disproportionate quantum
of punishment.
F Dividing Offences
The provisions contained in the Mil-
itary Act pertaining to all the three
Armed Forces should be divided into
two groups- serious service and civil
offences and non serious offences.
The latter can have the provision for
Plea Bargaining, provided the officer
voluntarily wants to go for it. This
will expedite delivery of justice.In the
first case it is pertinent to mention
that in cases where the accused who
undergoes the Court Martial and is
not found guilty, is sometimes dis-
missed from service through admin-
istrative action, thus amounting to
making him undergo double punish-
ment. This happens when the con-
vening authority has some ill will to-
wards the accused. It was a relief
to come across a recent judgement
passed by the Armed Forces Tribunal,
Chandigarh wherein a significant rul-
ing was made that the Chief of the
Army Staff is not vested with any
powers to terminate the services of
any officer. This power is held by
the Central Government alone, which
can be exercised in exceptional cases
only on the recommendations of the
Army Chief. Another important as-
pect is to make to make mens rea ex-
plicit mandatory in all criminal find-
ings. Within India, courts martial
could try only those offences that is
service connected.
G Legal Aid and Proce- 15
dural Rights of the Ac-
cused
It is very important that for a trial
to be just and fair, legal aid be pro-
vided at an early stage. It is also to
be seen that Military counsel are law
trained officers who can assist and ad-
vise the accused in preparing for his
defence and should continue through
all the stages till Appeal. The right to
choose a counsel should also be given
at an early stage. It is also important
to ensure that the Counsel is not in
any position to be influenced and can
be loyal to the cause of the accused.
Basic rights as enshrined in funda-
mental rights should be provided even
though it is necessary to curtail cer-
tain rights of the men in uniform.
H Appellate Tribunal
To stop any kind of corrupt practice
in the Military Justice System it is
most important that the Appellate
Tribunal be vested with the power
to punish personnel responsible for
miscarriage of justice and also have
the power to award compensation to
those who have been victimised by
the system. This will ensure that
18
the persons in authority will judi-
ciously take decisions and afford due
justice. The Appellate Tribunal be
also vested with powers over all mat-
ters regarding postings, leave, sum-
mary disposal and trials, under its
Original Jurisdiction. An all civilian
Court to review all courts-martial is
also imperative where the Judges are
appointed by the law Ministry with
the concurrence of the Chief Justice.
Impetus for re-
form
Finally the impetus for reform should
come from outside the military estab-
lishment that is to say that our law
makers should bring about Amend-
ments to the existing constitution
statutes to keep pace with evolution
in the civil and criminal law and
in accordance with tenets of Human
Rights because it is futile to wait
for the military establishment, ultra
conservatives and tradition bound as
they are, to reform itself. To think
otherwise would be ignoring realities
of institutional and professional con-
straints.
“Because the military has
been so singularly uncon-
scious of its defects and so
inept at correcting those
it does recognize, count-
less attorneys, millions of
servicemen and ex-GIs,
some civilian jurists and
even some politicians are
now convinced that there
is no use to wait longer
for internal reforms and
that the best thing to do
is simply to take away
 the judicial process and
return jurisdiction to the
civilian courts” 33
Superior courts like Supreme
Courts and High Courts have to pro-
tect Armed forces personnel from vi-
olation of his constitutional rights.
It would be a honest beginning if a
Standing Task Force on reformation
of Administration of Military justice,
which gets rigorous, informed inputs
from all sources, be established so
that a balance between need to ensure
discipline and need to protect citizen
servicemen rights, is arrived at and
which will in turn result in impar-
tial, unbiased, humane Military Jus-
tice system.Sadly, the Military Top
brass has conflict of interests in initi-
ating reform and nothing much may
be expected from them. It is ridicu-
lous that some Generals even project
the military system as some thing
ideal to be adopted for the rest of the
nation.
Are military justice systems supe-
rior as claimed by a retired Indian
General recently in the Indian media?
No one can dispute that it is fast and
severe but can one be sure it is fair?
This is typical of the ‘affirmative de-
ception’ practiced consciously or un-
consciously by the military to rein-
force the official perspective. In the
military system, the CO/Commander
is the police (law enforcer), the inves-
tigator, the prosecutor, the judge and
the jury and the jailer and the exe-
cutioner. Each duty has conflicts of
interest and violates the fundamen-
tal principles of separation of duties.
To hail this system with a 95+ per-
33 See SHERRILL R, Military justice is to justice as military music is to music (Harper colophon books, CN 230) [Loose Leaf] 217
(1970).
34 The 10th Report of the Parliamentary Standing Committee on Defence(2005-06), paras 10 and 12
centage of conviction as the sole crite-
ria for the goodness is fundamentally
flawed.
16 Law Makers’ con-
viction of the need
for reform
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 citizen soldier of
a democracy which should believe
in liberal values of human rights
and protection of the same from the
usurpation by the State. UK has to-
tally overhauled their system when
it was declared to be against Hu-
man Rights. USA, Australia, Canada
and New Zealand have also revised
their laws pertaining to military jus-
tice system to come to terms with
the 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, hopefully,
be forthcoming.
17 Superior Judi-
ciary’s Duty to
Protect Rights of 18 Conclusion
the Servicemen Corruption in Military Justice
Though the Supreme Court and the
High Courts have felt that in the ab-
sence of any effective steps taken by
19
the parliament and the Central Gov-
ernment, it is their obligation to pro-
tect and safeguard the constitutional
rights of the persons enrolled in the
Armed Forces, to a permissible ex-
tent, the soldier is still at the mercy of
a legal system that has not changed
since its inception in 1911 and adop-
tion in 1950s. The legislation con-
taining the Military Justice System is
unable to meet the demands of an en-
lightened society and the present day
cadre of the mixed forces. The dissat-
isfaction has resulted in a large num-
ber of armed forces personnel (ap-
proximately 10,000 cases) approach-
ing the higher judiciary for relief.34
If the reform to protect the rights of
the citizen soldier is not forthcoming
from the law makers, the only way the
judiciary can force it is to strike down
the violation of the rights of the citi-
zen soldier exactly as the European
courts did in case of the UK court
martials. Any thing less will not force
the law makers to bring in reform on
its own. Advocacy groups for the
rights of the service personnel should
keep up the pressure by filing cases as
it has happenned in case of UK Court
Martial. Our soldier’s right to consti-
tutional and Human Rights is in no
way less than that of the soldiers of
UK, Australia or canada!
Sys-
tem, as has been dealt with above,
does not necessarily conform itself to
the straight jacket definition of abuse
of power by public officials for private
gains. A diverse array of phenom- tionary concept as our civil society
ena in the Military Justice System, would be under the Lok Pal?
where bribery, a quintessential form The best way to conclude is to
of corruption, is not an issue, but the quote Justice Ghanshyam Prashad:
act of the convening authority moti-
vated by a misplaced sense of ‘dis- “While the judiciary has
cipline and punish’, rather than any duly recognized the re-
financial reward, is definitely the is- quirement of maintaining
sue. Then again, when a person in discipline in the defence
authority motivated by sadistic plea- services, it has abhorred
sure abuses his/her power by met- the actions which have
ing out cruel and unjust treatment been inconsistent with the
to those subject to his/ her author- Constitutional principles
ity, is not engaging in an economic of the nation and rightly
crime motivated by economic consid- so, since merely by join-
erations but surely motivated by a ing the defence forces, the
desire to exercise power for its own members of such forces do
sake, smacks of corruption or cor- not cease to be citizens of
rupt practice. The people in exec- the country. While fun-
utive exercise this power even when damental rights of mem-
used legally to the detriment of cit- bers of the forces may
izen accused and thus we can safely be restricted, they remain
assume such acts are clear case of cor- full-fledged citizens of the
ruption in the criminal justice system country and amenable to
of the military. Even the wide dis- the same safeguards as
parity in sentencing (from letting off are available to other cit-
even with out prosecution to severst izens.”
punishment even beyond what is au- *********************************
thorized under the law) is a result of
the influence of the convening author-
ity which invariably sways the Court
Members decision and the trajedy is
that no one ever was prosecuted for
obstruction of justice which is a crime
under the law of the land! Is this not
a real case of crime under Army Act
Section 63 prejudicial to the good or-
der and military discipline? Why is it
no convening authority has ever been
charged with such a crime? Do we
have a case for an independant “Mil-
itary Lok Pal” as was advocated by
the civil society by Anna Hazare for
the civilian investigation and prose-
cution? Shouldn’t our servicemen be
equally benefited by such a revolu-

20