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Chandra CP Nath June 21, 2011
trident cacophony in the media about arresting corruption in the Defence forces has sent Army scrambling for action. Where does the cacophony of the media leave Military Justice system is a question I ﬁrst raise in this article. In addition, the thesis developed for this article is that the current Military Justice System is weighed against the accused and is violative of the human rights. The Indian system will be examined with close reference to UK as these originated from the single common source of Roman laws. Did the Chief violate law by trying to shield his PSO? If the original decision was based on sound professional judgment, why did he buckle and order a Court Martial? Are matters of honour of distinguished soldiers decided in such ﬂimsy fashion? To come under pressure because of media onslaught and to ask the Chief to order a court martial may itself be violation of law by the RM because he is interfering with strictly judicial powers of the Chief. 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 Courts Martial punish Lt Gen P K Rath for an error of judgment in a purely administrative function or for that matter Lt Gen Avadesh Prakash for attempting to inﬂuence a purely administrative function of a ﬁeld commander, all because they appeared as “the accused” ? Just think about it! It is an accepted dictum that to perform a superior judicial function, security of tenure is mandatory. Does the Chief or for that matter, any one working under him have any security of tenure? Constitution of India Article 311 protects bureaucracy but not men in uniform! 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 ? The case of Findlay v. UK, decided unanimously by the European Court of Human Rights on February 25, 1997 that courts martial are violative of Human Rights 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 forced on 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. Our current Army Act is even more archaic than the UK one and largely same as what the colonial power left for us while leaving the country in 1947. This is deﬁnitely a matter of shame. 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 usurpation by the State. UK has totally overhauled their system under pressure from Human Rights courts. USA, Australia, Canada and New Zealand have also revised their laws pertaining to military justice system to come to terms with the requirements of a modern soci1
So. when the King’s Courts are open for all Persons to receive Justice according to the Laws of the Land. that it was not a tribunal ”established by law”. and that the post-hearing reviews were essentially administrative in nature and conducted in private. that the judge advocate’s advice on sentencing was not disclosed. He was not even charged with an oﬀense leave alone punished because no media pressure forced the Chief to order a court martial. Giving security clearance was a part of his oﬃcial duty. knowing that it is false in a material respect he knows or has reasonable cause to believe that the record was oﬃcial. be forthcoming. intentionally and recklessly.ety. This is not an error of judgment but a alleged crime committed knowingly. recklessly and/or negligently or was it just an error of judgment in an administrative function ? There are so many educational institutions in the military area in India. Does it mean media determines who should be charged. which itself was a copy of the early Roman military law. The members of the court martial were appointed ad hoc. “In 17th century England the practice of court-martialing soldiers in peacetime evoked strong protests from Parliament. every thing revolves around who is placed as the accused in front of a court martial. Any accused in a court martial in India could claim that his trial by court martial failed to meet the requirements of Article 6 para 1 of the Human Rights Convention (art. in the ﬁeld of military operations in the face of the enemy. European Human Rights Court (in Findlay v. Should we punish all those who gave security clearance for them? Lt General Rath. just as the American military law. intentionally. who not to be charged? Didn’t the Chief breach a known duty to prosecute? What do you call this. If the Indian Parliament is convinced that the military justice system is bereft of the essence of justice. There was no media pressure on the Chief to charge the Lt General in the Kargil operations. UK in 1997) expressed the unanimous opinion that there had been a violation of Article 6 para 1 of the Convention (art. why would any one seek such certiﬁcate from him? Did the prosecution prove a culpable mental state where he committed the crime knowingly. Or else. that no reasons were given for the decisions taken by the court-martial. 6-1). one was placed as the accused in front of a court martial and the other was not. The only diﬀerence was. and particularly the fact that it began as a copy of the British system. 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. the conﬁrming and reviewing oﬃcers. (a thing . hopefully. All the oﬃcers appointed to the court were directly subordinate to the convening oﬃcer who also performed the role of prosecuting authority. Lord Chief Justice Hale wrote that trial by military courts may not be permitted in time of peace. Obviously the reader should be aware of the origins of Indian military law. He allegedly makes an ofﬁcial record. 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? Contrast this with a Lt General who was alleged to have tampered with the war diary during Kargil operations. drastic reforms may.” Do you require great legal acumen to contrast this with what is happening in India to day? For an oﬀense committed in Delhi of inﬂuencing a purely administrative decision making of some other oﬃcer far removed in the hierarchy. 6-1). just because he was in uniform could be punished for an error of judgment in a purely administrative function. military justice ? 2 It did not require much deliberation for the European Court to pronounce that the court martial was not an ”independent and impartial tribunal”. Lt General P K Rath was punished severely for giving security clearance for a school in the military area. In contrast the error of judgment in a purely administrative function committed by Lt General PK Rath was charged and punished.
3 . Let us remember what US Supreme court as stated in O’Callahan v. in all probability. in all probability. so many Generals are transported to Leimakhong in Manipur from the rest of India including the capital New Delhi (where all law courts are open and functioning) and a GCM will be conducted and a sentence will be pronounced. You be the judge.that must be happening million times every day in the corridors of power in Delhi and state capitals). The recent spate of widely publicized trials by court-martial of high ranking Generals have hopefully focused national attention on military justice. Parker emphasized: “Courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law. There is a compelling reason to put the Court Martial on trial before we put many more generals on court martial for what sometimes is called ”the Devil’s Article”(Army Act Section 63) that authorizes punishment of military personnel on grounds that are less speciﬁc as to the particulars of the offense and as to the punishment. for the oﬀense under the ”Devils Article” (Section 63 of Army Act) against a Lt General with 30+ years of distinguished service! Remember that he has been recalled from retirement for this legal process! After protracted appeals. it all will be set aside.” Should we not accept the legal principles of stare desis and jurisprudence constante as established in the Human Rights Courts quoted. compared to most crimes in modern West European law.
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