CORRUPTION IN MILITARY JUSTICE SYSTEM & CITIZEN SERVICEMEN’S RIGHTS

Jyoti, Chatterjee ∗ Chandra Nath† ,

Abstract The paper surveys the corruption in the Military Justice System in particular from the perspective of the citizen soldiers’ Fundamental Rights. The citizen soldier who pledges his career and life for defending the freedom and liberties of the nation be NOT deprived of the very rights he pledges his life to defend for the rest of the citizenry. A formal theory of corruption in Institutions is defined. While conceding that there are compelling arguments to restrict some of the rights under actual battle condition for maintaining absolute discipline in a cohesive fighting force, the authors develop persuasive arguments NOT to sacrifice all of the fundamental rights ALL the time as has been done under the constitution and the statutes and structures created in the independent India. The root causes of the excessive compromise is analyzed. The current trend of granting as much human rights as possible under the real life constraints to the citizen soldier of the liberal democracies is surveyed. The current firmament in USA, UK, Canada and Australia are referred to make a persuasive case for a total review of the military justice system. While conceding that the reform is unlikely to come from the military brass because of inherent conflicts of interests, and also the tracing the all too well known apathy of the law makers, we conclude that superior judiciary is the last bastion to protect the citizen soldiers rights under unjust legacy laws.
jyotirmoikatayani@gmail.com Pursuing Ph.D in West Bengal National University of Juridical Sciences, Kolkata † nath@computer.org is engaged as an Independent researcher in information security, privacy and law in Los Angeles, California, USA.

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The reform can only come as it has in other liberal democracies of the western world out of the superior judiciary declaring the present dispensation are in violation of the fundamental rights and human rights of the citizen soldier and hence unconstitutional. A series of measures to reform the constitution, statutes, structures and the due process are recommended. The issues raised are hoped to stir the conscience of the nation and those who seek justice for the citizen soldiers.

Key Words : Military Justice System, citizen soldiers, Convening Authority, Unlawful Command Influence.

I

INTRODUCTION

Real Courage is found, not in the willingness to risk death, but in the willingness to stand, alone if necessary, against the ignorant and disapproving herd. Jon Roland, 1976 There is a constant tension between individual servicemans rights and the compromise to military discipline as perceived by the top military brass. The respect for individuals rights is increasingly getting more and more weight and the military courts have been declared to be in violation of Human Rights. This has resulted in total deadlock in dispensation of justice in the business as usual military criminal justice systems. Considering that the countries like UK, Canada and Australia have substantially revised their military laws from the age old colonial days, it is time that we take note of what is happening in the realm of military justice. Our own Military Justice system has unfortunately been mostly left untouched and this should be a matter of concern for those who value individual citizens rights in these modern days. A failure to apply the nations conscience, mind and attention in this realm may be problematic and may even invite Human Rights violation notices for the citizen soldier as has happened in the UK, Canada and Australia. We bring out in this paper the corruption which can manifestly creep into the Military Justice System and recommend some structural changes in constitution, statutes and due process steps to combat the same. We will argue that important fundamental and human rights issues are denied to our servicemen and women and that persuasive authorities from international and comparative human rights law provide solid foundation for a judgment 2

of the Supreme court declaring that the denial of rights to our servicemen in totally non-combat related situations do not warrant such denial of rights which all citizens enjoy. Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.

II

BACKGROUND TO ARTICLE 33 OF THE INDIAN CONSTITUTION

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 Constitution, were incorporated as means to protect and secure that very right to Life and Liberty to each individual sovereign member of the polity from encroachment by any other person or authority including the State. While so doing, ‘We the People of India’ did not create any second class citizen among ourselves so far as protection of that Right to Life and Liberty was concerned. 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. Even though this Article was incorporated in the Constitution as an abundant caution to protect the Fundamental Rights from the State interference, a definite shift in certain quarters of the Constituent Assembly is quite perceptible. Whereas in the Constituent Assembly Resolutions these Fundamental Rights have been referred to as inalienable and the State was only to secure and guarantee the unhindered enjoyment and possession thereof by each and every person [constituent member of We the People of India]. The Preamble to the Constitution declares the sole purpose of this Constitution of India coming into existence is to secure to all its citizens Right to Justice, Liberty, Equality and Fraternity. Article 13 treats these Fundamental Rightsnot as inalienable natural attributes already possessed by each and every individual sovereign member of We the People of India butas something which is given at mercy, granted 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] FREEDOM conferred upon us at the mercy of The Executive, which was created

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under the Constitution, which Constitution We the People of India created, adopted, enacted and gave to ourselves. Thus by a sleight of words practiced in the drafting of the Constitution, Creature [The Executive] was placed in a commanding position over its Creator [We the People of India]. It is interesting to note that despite there being a clear mandate against allowing any pre-constitution law infringe upon the Fundamental Rights affirmed by We the People of India as being inalienable, Article 33 was inserted in the Constitution by a process which was nothing less than a fraud played upon the Constituent Assembly thereby institutionalizing and legalising slavery of some who serve in the military and freedom of others who did not so serve.

III
A

CORRUPTION IN GENERAL

CORRUPTION IN RECORDED INDIAN HISTORY

Corruption is rampant in the modern world after the two world wars, but it is not entirely a recent phenomenon. Corruption prevailed in the Maurya period and is defined and described by Kautilya as under ‘Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up, at least a bit of the king’s revenue. Just as fish moving under water can not possibly be found out either as drinking or not drinking water, so the government servants employed in the government cannot be found out while taking money.’ 1

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CORRUPTION IN MODERN INDIA

Even as we pride ourselves on having a democracy, itself normatively defined as government of the people, by the people and for the people, in Abraham Lincolns famous phrase, it has enhanced the definition, by sharpening the distinction between what is public from what is private. This is against
Roger Boesche, Kautilyas Arthasastra: on War and Diplomacy in Ancient India, Journal of Military History, 67.1 (2003) 9-37 http://muse.jhu.edu/journals/journal_ of_military_history/v067/67.1boesche.html
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the background that in a democracy, politicians become peoples representatives and bureaucrats as public servants precisely because these functions are deemed to be conducive to the common good. Corruption therefore becomes the improper behavior.

C

CORRUPTION: DEFINITION

Corruption perhaps defies definition without severely constraining or restricting the scope. The word ‘corruption’ is not defined in any enactment dealing with crimes, not even in Prevention of Corruption It is the abuse of public office for private gain that constitutes corruption. Over the years we might have come across certain actions on the part of the individuals, groups that we perceived as corrupt actions in both a generalised and specified environment. This however, does not constitute an overall perspective that would warrant an accepted definition of corruption. This is one of the most formidable obstacles to the study of corruption. According to Transparency International source book, Corruption is defined simply as the misuse of entrusted power for private benefit.2 The Supreme Court of India in one of its pronouncements had observed that the word ‘corruption’ does not necessarily include an element of bribe taking. It is used in a much larger sense as denoting conduct, which is normally unsound or debased. The word is not synonymous with the words dishonestly or fraudulently but is much wider. It even includes conduct, which is neither fraudulent nor dishonest, if it is otherwise blameworthy or improper.3 A loose Definition of Corruption given in ‘CorruptIndia’ web site is reproduced below: ‘How does one define corruption? It is one of those phenomena, which is easier to identify than to define. Corruption hardly requires any narration or explanation as we are all exposed, sufficiently enough to various incarnations of corruption and also to all sorts of methodologies relating to corruption either by way of dealing with corrupt or by way of being corrupt.’
Jeremy Pope 2002 Confronting Corruption: The elements of a National Integrity System, Transparency International, Berlin, Germany. 3 Union of India vs. Dr.S.Dutt, AIR 1966, S.C. 523.
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D

CORRUPTION DEFINITION IN THE STATUTES

Corruption perhaps defy definition with out severely constraining or restricting the scope. The word ‘corruption’ is not defined in any enactment dealing with crimes, not even in Prevention of Corruption Act, 1988. As per Santhanam Committee Report the term ’corruption’ in its widest connotation includes all improper and selfish exercise of power and influence attached to a public office.

E

CORRUPTION DEFINITION IN ACADEMIC RESEARCH

Despite this complexity of defining corruption, academic research has made some interesting clarifications of likely general causes, set some of the agenda for defining the key issues and thereby prepared some of the ground, however, with actions performed by agents in specific political and bureaucratic organisations, all applying considerable tacit information.4

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POWER, DEMOCRACY & ETHICAL CONSTRAINTS

Lord Acton’s well-known aphorism, that ‘power tends to corrupt and absolute power corrupts absolutely’5 can be seen in the light and assumption that democracy, including ethical constraints on the power of rules will reduce the tendency to corruption, which could be argued, has only partially been borne out in practice in India today. For it is widely known by the Indian citizens that neither the existence of checks and balances nor the insistence on ethical performance on the part of Governments in India necessarily leads to honest Government serving the common interest. Corruption could therefore be also defined normatively, as a deviation from public good.
Jens Chr. Andvig and Odd-Helge Fjeldstad, Corruption: A Review of Contemporary Research Report R 2001: 7, Chr. Michelsen Institute Development Studies and Human Rights, Norway 5 See John Emerich Edward Dalberg Acton, first Baron Acton (1834-1902). The historian and moralist, who was otherwise known simply as Lord Acton, expressed this opinion in a letter to Bishop Mandell Creighton in 1887
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IV
A

INSTITUTIONAL CORRUPTION

TYPES

There are many forms of corruption, including many types of Institutional corruption like police corruption, judicial corruption, political corruption, academic corruption, and so on. Indeed, there are at least as many forms of corruption as there are human institutions that might become corrupted. Further, economic gain is not the only motivation for corruption.

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MOTIVATIONS

There are a variety of different kinds of attractions that motivate corruption. These include status, power, addiction to drugs or gambling, sexual gratification, as well as economic gain. We can conclude that the various currently influential definitions of corruption, and the recent attempts to circumscribe corruption by listing paradigmatic offences, have failed. They failed in large part because the class of corrupt actions comprises an extremely diverse array of types of moral and legal offences.

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THEORY OF INSTITUTIONAL CORRUPTION

The Theory of Institutional Corruption as espoused in the Stanford Encyclopedia of Philosophy6 provides the following: 1. The Personal Character of Corruption- Persons are relevantly involved in all corruption, and in institutional corruption in particular 2. The Causal Character of Corruption- In relation to the concept of institutional corruption, it may be stated (as a necessary condition) that an action is corrupt only if it has the effect of undermining an institutional process or of subverting an institutional purpose or of despoiling the character of some role occupant qua role occupant.(e.g. Unlawful Command Influence- corrupting Military Justice system.)
Miller, Seumas, ‘Corruption’, The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/spr2011/ entries/corruption
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3. The Moral Responsibility of Corruptors- an action is corrupt only if the person who performs it either intends or foresees the harm that it will cause or, at the very least, could and should have foreseen it. This condition expresses the moral responsibility of corruptors. (e.g. Mens Rea in legal theory) 4. The Asymmetry between Corruptors and Those Corrupted in the sense of institutional role occupants, who are corrupted. (e.g. Power asymmetries between actors) 5. Institutional Corruption involves Institutional Actors who Corrupt or are Corrupted- non-institutional agents who culpably perform acts that undermine legitimate institutional processes or purposes. As concluded above, corruption, even if it involves the abuse of public office, is not necessarily pursued for private gain.(External agents, may be members of the public or businesses. This may not be a necessary condition.)

A

AN ACT OF CORRUPTION DEFINED FORMALLY

Stanford Encyclopedia of Philosophy on Corruption defines an act of corruption in an institutional setting formally in the following way: An act x performed by an agent A is an act of institutional corruption if and only if: 1. x has an effect, E1 , of undermining, or contributing to the undermining of, some institutional process and/or purpose of some institution, I, and/or an effect, Ec , of contributing to the despoiling of the moral character of some role occupant of the institution I, agent B, qua role occupant of I; 2. At least one of (a) or (b) is true: (a) A is a role occupant of I, and in performing x, A intended or foresaw E1 and/or Ec , or A should have foreseen E1 and/or Ec ; (b) There is a role occupant of I, agent B, and B could have avoided Ec , if B had chosen to do so.

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B

EFFECT OF CORRUPTION: EXPLANATION

Going on the above premise we can take a step further and explain the phenomenon of institutional corruption:Ec the effect of corruption (despoiling of the moral character ) of the institution I or agent B the role occupant of I . If E1 is zero or near zero, the corruption is negligible and/or to be ignored like in the case of gifts less than a particular value or an occasional business lunch! The set of values E1 could be exchange of money, power, influence, control, pleasure, pain, sex, sexual harassment, vengeance, coercion, misplaced institutional/tribal loyalty and/or personal agendas because E1 =k Ec where k is the constant of proportionality.

C

CORRUPTION IN MORAL VALUE: CAUSE & EFFECT

Ec , the effect is dependant on the cause E1 and may be proportional to E1 . Ec is the corruption in moral value caused by the bribe E1 , and may be higher if E1 is higher. When we do not know the exact relationship other than it is proportional, we use an unknown constant of proportionality k. All we need to know is Ec is dependant on E1 and as E1 increases Ec increases and as E1 decreases, Ec decreases at some unknown rate. k is the unknown multiplication factor used when we do not know the actual multiplication factor. Where E1 is small or negligible (i.e bribe is small or within accepted limits like a simple present or complimentary business lunch), effect Ec is minuscule and could be ignored for all practical purposes. 1. Where E1 is very high (bribe is very high like in mega scams) E1 is the major corrupting influence . (E1 i.e bribe driven corruption) 2. Where Ec is already very high (i.e the agent is very highly corrupt already) and any E1 may have no further influence.(Ec , the moral turpitude driven corruption) 3. E1 may be external or internal to the organization. Where E1 has superior power (due to the position in the hierarchy), corrupting influence is very high though no bribe per say is exchanged. (e.g. unlawful

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command influence of the convening authority in the case of military justice system.)

VI

INSTITUTIONAL CORRUPTION IN MILITARY CRIMINAL JUSTICE SYSTEM

There is a widespread recognition that corruption is morally venal and detrimental to the cause of Indian security. Does this mean corruption, which can be seen rampant in arms procurement and alleged paybacks which has been a serious issue from the mid 1980s? Or is it limited to dishonest promises made by the Defense Research and Development (DRDO) without any accountability, for which the Government has spent billions of Rupees without much success? Or for that matter misusing manpower and undue imposition on the system for personal requirements, be termed as corrupt practice? Well all the above being very much the part of institutional corruption, we will, never the less, focus ourselves on the aspect of corruption in the Military Criminal Justice System here.

A

CONSTITUTION & STATUTES: SEPARATION OF DUTIES & CHECKS AND BALANCES

From the perspective of Institutional Corruption, Corruption in the Military Criminal Justice System may be caused by the defective Constitutional provisions, statutes, structures, processes and/or the actions or omissions of the actors in the system who are required to act as per the expectations. Failure to recognise the possible vulnerabilities, threats or risks of corruption in the criminal justice system of the armed forces is exactly on the lines of a failure to recognise the risks in the security domain of the system. To expect humans, however lowly or highly placed, to act as paragons of virtue is to invite corruption. The only safe way to tackle this is by separation of duties, checks and balances against each other and credible threat of punishment and high probability of detection of corruption. Risk taking is in human nature and when the probability of detection is low, even the otherwise reasonably law abiding tends to jump the red light as we all know. When the stakes are high, the motives for risk taking is higher too. 10

B

CHANGES IN INSTITUTIONAL PROCESS

Corruption in any institution cannot be assumed to be of recent origin, rather a historical perspective has to be taken into account and on that basis it has to be found out whether in the present condition such institutional corruption can be rectified or not as the mere fact that the present constitutional and statutory safeguards or lack thereof relating to the Armed Forces would undoubtedly further undermine the institutional process on the backdrop of citizen’s constitutionally defined fundamental and Human Rights.

C

CHANGED SOCIETAL CIRCUMSTANCES & NEED FOR OVERHAUL

It is also pertinent that an institutional process to be corrupt it must suffer from moral diminution. Undermining institutional process would mean a series of actions which are taken, albeit, abiding by the Rules and Regulations as envisaged in any legal process, but which is, in the first instance and on the face of it, not morally, or ethically or for that matter correct and judicious keeping in mind the changed societal circumstances of the society and public opinion. Slavery, womens rights and tolerance to homo-sexuality are evidence of the changing nature of public opinion in the society. Connected with the topical aspect of this paper, institutional corruption in the Armed Forces can be attributed to failure of our law makers in amending Article 33 of the Indian Constitution to bring it in tune with changed civil societal norms and circumstances, and especially the Human Rights perspective and as per other developed nations’ notions of justice, and also persistent failure to review for a complete overhaul in the Military System of justice 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 modern military criminal justice system can squarely be attributed to the failure 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 satisfaction of the traditional military brass. The so called ‘military experts’ of the Television and the writers in the popular media are fundamentally fraudulent when they parade military expertise 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’ glorifying the 11

‘military criminal justice system’ as some thing to be adopted for the civil society. Society should question the fraudulent credentials of these so called ‘experts’.

VII

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 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 permitted in time of peace, when the King’s Courts are open for all Persons to receive Justice according to the Laws of the Land.’ Hale commented that military 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.’ 7 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 Revolution 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 energies and office to insure that the accused soldier would be tried before a civil court.’
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]
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VIII

HOW DOES CORRUPTION MANIFEST ITSELF IN THE MILITARY JUSTICE SYSTEM?

Corruption manifests itself in various ways and it is useful to distinguish between Personal Corruption (motivated by personal gain) and Political Corruption (motivated by political gain). A further distinction can be made between individual corruption and organizational or institutional corruption. In the context of the state, corruption most often refers to criminal or otherwise unlawful conduct 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 factorsbeing the hallmark in the functioning of our armed forces, how does then corruption snake its way into the self contained Military Justice 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 devious ends. For the military, 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 destroys them. It shatters their lives. It depletes their life savings. It causes a bitterness deep within the soul of humanity. It carelessly and with impunity destroys the very roots of the Constitution on which this nation was founded. writes Glenda Ewing of an advocacy group of veteran families of USA.” 8 “Corruption mushrooms under the Undue Command 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 considered fair when the ‘convening authority,’ by right of title, is given the power to select
See Citizens Against Military Injustice, a non-profit advocacy organization http: //www.militarycorruption.com/marinejustice.htm an advocacy group for Justice for US Marines,
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the judge, and defense and prosecution ? It may go ‘unsaid,’ but the implication is very clear - if the convening authority ‘sees fit’ to bring about a court-martial, then the accused can be assumed to be guilty. I find the system to be incorrigibly corrupt. Numerous convictions have been reversed on appeal because of Unlawful Command Influence. And it is rather strange that there is not a single case where a commanding officer has suffered prosecution for committing that illegal act or proceeding illegally with mala fide intent. Obstruction of justice is as subversive of good order and military discipline as any other military offences.” writes the advocacy group in their web site. 9 The Honble Supreme Court has observed that: “Courts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of ‘command influence’. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings-in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges.” 10

IX

CONCEPT OF RULE OF LAW

In UK, Sir Edward Coke is said to be the originator of the concept of Rule of Law, when he said that the King must be under the god and law and thus vindicated the supremacy of law over the pretensions of the executives. Later, Prof. Albert Venn Dicey developed this concept. Dicey cited cases
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See Id. Lt Col Prithi Pal Singh Bedi etc v Union of India and Others, A.I.R 1982, S.C 1413

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in support of his reference to each of these high officials in his classic on the Law of the British Constitution.11 : ‘With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same legal responsibility for every act done without legal justification as any other citizen. The Law Reports abound with cases in which officials have been brought before the courts and made, in their personal capacity, liable to punishment or to the payment of damages, for acts done in their official capacity but in excess of their lawful authority. A colonial governor, a Secretary of State, a military officer, and all subordinates, though carrying out the commands of their official superiors are as responsible for any act which the law does not authorise as is any private and unofficial person.’12 In the United States, Judge John J. Sirica could comfortably stretch the arm of the law to reach a President in office, Richard Nixon, in the Watergate affair.

X LEGITIMATE RIGHTS OF SERVICEMEN FOR RULE OF LAW
Our veteran have adopted for themselves a career of commitment and sacrifice for the nation for defending our borders, for defending our freedoms and national integrity. But, tragically, these very men (and women) are denied the very same rights under the Indian Constitution ( and that too by a very devious slight of hand ) that they have pledged their lives to defend and fight to the very last bullet and the last man (and woman). The biggest tragedy is that neither the soldiers and Generals nor the innocent volunteer for the military is aware of this tragic denial of all legitimate rights for all time every citizen of this nation is entitled to, except perhaps in the most unusual circumstances of actual battle in the field. “Innocent until proven guilty by an impartial judge” is the right of every human. The military deserves a justice system that can seek out the truth
Dicey A V, Introduction to the Study of the Law of the Constitution, http://www. constitution.org/cmt/avd/law_con.htm 12 See Id.
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without fear of retaliation. But does it work this way in the Military criminal justice system? One would hope that the recent spate of widely publicized trials by court-martial of high ranking Generals have focused national attention on fairness of the military justice system but circumstances repeatedly reveal that any such hope is all belied. Some observers have even concluded that Military Justice is no more than some drum head justice and that military justice is to justice as military music is to music, writes a distinguished jurist.13 No wonder, to be courtmartialed in the Army lingo mean to be convicted!14 As one US ex-Navy lawyer recalls, ‘The general attitude seemed to be that a man was going before a court-martial to receive a sentence rather than a trial.’15

XI

RULE OF LAW IN THE SCHEME OF MILITARY JUSTICE SYSTEM

Establishment of the Rule of Law requires a highly civilised society. To begin with when States were governed by absolute rulers, there was no rule of law in its true sense, though even from earliest times some rules regulating human conduct in society were observed and enforced by such rulers through judges appointed by them. Rule of Law, as we understand today, is a necessity of a democratic state where, no individual is interfered with or punished unless a law is broken. There are no discretionary or arbitrary arrests, rulings or actions by the ruling power (the executive). The law applies to every individual and in the same way. All officials are under the same responsibility as any other citizen for every act they do without legal justification. No one is given any concession under the law or in the courts for their rank, position or condition.16 The stage or Rule of Law was first reached in the democratic States of
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) 14 West, Command Influence, in CONSCIENCE AND COMMAND: JUSTICE AND DISCIPLINE IN THE MILITARY 73 (1. Finn ed. 1971) 15 Times, Friday, August 13, 1965 Times Criminal Justice: The Serviceman’s Rights 16 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]
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the West. Now Rule of Law envisages, first, a uniform body of laws to regulate all human conduct in the State which is a manifestation of a wellorganised society; secondly, decision of all disputes by independent courts not only between subject and subject or citizen and citizen but also between the subject or the citizen on the one side and the State on the other, with freedom to the subject/citizen to approach the courts for redress against the State without having to ask for permission before doing so; and thirdly, establishment of regular 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 principle of legality, which is characterised by at least three dimensions. Firstly, it lays emphasis on the smooth functioning of administrative and judicial organs of the Armed Forces and expects them to exercise checks and balances on one another. The second aspect of rule of law concerns the relation between the personnel in power in the Armed Forces and the individuals whose lives are affected by the exercise of their power to make them undergo proceedings. In such a situation the Rule of law marks the transformation of the individuals juridical status from a mere subject into a responsible citizen. The third dimension 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 individual vis vis the Military Justice System. There are several obligations for authorities like independence and impartiality of the tribunal, adoption of decisions not on the basis of wisdom but laid down laws, publicity of hearings, equality between the defence and the prosecution through the trial (presumption of innocence until proven guilty; rights to prompt notice of nature and cause of criminal charges, to defend oneself in person or through a legal counsel, to an interpreter, to be present during the hearings, to examine witness, to appeal and to get compensation for miscarriage of justice) and reasonable duration of the trial.

B

AUTONOMOUS JUDICIARY

All this can be ensured only through an autonomous judiciary and the dispensation of justice in the back drop of Rule of Law cannot be left in the 17

hands of few top brass who may not be infallible to corruption and corrupt 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 punished and who does not depending on the whims of the commander, then it makes the military justice system corrupt, unjust and violative of human rights. A system based purely on the pivotal Administrative power alone can not pass the muster of human rights by any stretch of logic or imagination.

XII

POSITION OF CONVENING AUTHORITY- RISK OF CORRUPTION

From an institutional perspective, corruption arises where public officials have wide authority, little accountability, and perverse incentives. This means the more activities public officials control or regulate, the more opportunities exist for corruption. Furthermore, the lower the probability of detection and punishment, the greater the risk that corruption will take place.17 Too much of power vested in a single authority make them dispensers of favour and fortune. This is when arbitrariness 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 officer holding the necessary warrant under the Act empowering him to convene 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 officer(s) to conduct the Court of Inquiry, 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 presiHandbook, 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
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dent and the details of the other members, all of whom he could appoint. He orders the Judge Advocate Generals office to appoint Judge Advocate and failing such appointment, he could appoint one. He also appoints (or orders a commanding officer) to appoint a prosecuting officer and a defending officer. The convening officer is responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, 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 opportunity to prepare his defense, legal representation if required and the opportunity to contact the defense witnesses, and was responsible for ordering the attendance at the hearing of all witnesses reasonably requested by the defense. The convening officer could dissolve the court martial either before 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 confirming officer. Prior to confirmation, the confirming officer used to seek the advice of the Judge Advocate Generals Office, where a judge advocate different from the one who acted at the hearing would be appointed. 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 petition the reviewing authorities. The reviewing authorities could seek the advice of the Judge Advocate Generals Office. He has the power to quash a finding and to exercise the same powers as the confirming officer in relation to substituting, remitting or commuting the sentence. Neither the fact that advice had been received from the Judge Advocate Generals Office nor the nature of that advice need be disclosed. With this insight about the position 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 prejudices. He occupies a position of vantage with reference to the accused. He often has facts favourable to the defense of which the accused is necessarily ignorant. In these circumstances the plight of the accused is in the hands of the convening authority 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. 19

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 soldiers, the sailors and the airmen have avenues for redress of their genuine grievances. This is an executive function When this function is intermingled 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 deliberation for the European Court to pronounce 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 advice on sentencing was not disclosed, that no reasons were given for the decisions taken by the courtmartial, the conforming and reviewing officers, and that the post-hearing reviews 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 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.18

XIII

UNLAWFUL COMMAND INFLUENCE

‘Unlawful Command influence’ is the biggest bane of the military justice system. One military judge colorfully described UCI as: The mandate of United States [v.] Biagase, 50 M[.]J[.] 143 [C.A.A.F. 1999] could not be more clear. Undue and unlawful command influence
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]
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is the carcinoma of the military justice system, and when found, must be surgically eradicated. And this is going 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 outcome of the Court of Inquiry. 2. Convening Officer can reject the Court of Inquiry and order another 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, prosecution,Defence counsel. 4. Members of the court jolly well know that ‘if the convening authority 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 officer has ever been taken to task for doing a poor job at the defence! 7. Court Martial decision is not effective 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 21

facilitating impartial justice, he by his position is actually the 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 system 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 Ministry 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 Secretary! How great will be the independence of such a court and how fair will it be to the accused? If such a judicial system is not acceptable to the cititizen, to impose the current military judicial system on the citizen soldier is patenetly defective in statute, structure and processes. To deny this truth would be irrational and illogical.

XIV

ANALYSIS OF THE HIGH COURT OF AUSTRALIA JUDGEMENT

Analysis of Australian judgement19 makes it clear that:
Lane v. Morrison [2009] HCA 29 26 August 2009 C3/2008 http://goo.gl/ K85ZmAccessed 8 Nov 2011
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1. Courts martial are created by Act of Parliament but violative of the constitution. (CHAPTER IV.- THE UNION JUDICIARY in our case) 2. Judges have NO tenure or freedom from the executive. 3. Judgements are effective only if confirmed by the executive and only for the period of executive’s pleasure. 4. Court does not have ‘Contempt of Court’ powers. 5. Courts martial are part of the executive and NOT the judiciary! Exactly same arguments are 100% true in Indian Context too with more conviction because unlike Australians, we have NOT even created permanent courts like Australian Military Courts(AMC) !

A

UCI ACTUAL AND APPEARANCE OF UCI

Thus actual UCI affects the fairness of a trial, while the appearance of UCI merely affects the level of public confidence in the Military Justice System. Unlawful Command Influence was illustrated in an appeal in the Delhi High Court, in which officers 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 under 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’20 Conclusion: When you divorce the Military from Military Justice, you are left with Justice!
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
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XV
A

THE CONSTITUTION VIZ A VIZ STATUTES

ARTICLE 33 & THE ARMY ACT, THE NAVY ACT AND THE AIR FORCE ACT.

These Acts were enacted under Article 33 of the Constitution so as to maintain high standard of discipline and obedience, the ultimate aim being to ensure combat readiness, which enables the morale of the fighting troops to that degree where they willingly 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 discipline 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 Constitution, were incorporated as means to protect and secure that very right to Life and Liberty to each individual sovereign member of the polity from encroachment by any other person or authority or even the State. While so doing, We the People of India 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 distinction or discrimination between men and men. We held that this right to Life and Liberty was equally the inalienable possession of each and every 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 description 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:

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ARTICLE 13 laws Inconsistent with or in derogation of the fundamental rights:– (1) All laws in force in the territory 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 contravention, be void. (3) In this Article, unless the context otherwise requires:– (a) ‘law’ includes any Ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law. (b) ‘laws in force’ includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement 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 Constitution under Article 368].21 Even though this Article was incorporated in the Constitution as an abundant caution to protect the Fundamental Rights from the State interference, a definite shift in certain quarters of the Constituent Assembly is quite perceptible. Whereas in the Constituent Assembly Resolutions these Fundamental Rights have been referred to as inalienable and the State was only to secure and guarantee the unhindered enjoyment and possession thereof by each and every person [constituent member of We the People of India].

D

PREAMBLE TO THE CONSTITUTION

The Preamble to the Constitution declares the sole purpose of this Constitution of India coming into existence 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 already possessed by each and every individual sovereign member of We the People of India, but as something which is given as mercy, granted as a dole, conferred at
[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.]
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pleasure by some superior being. This approach by the Constitution Makers made FREEDOM OUR BIRTH RIGHT [in the words of Lokmanya Tilak] FREEDOM conferred upon us at the mercy of The Executive, which was created under the Constitution, which Constitution We the People of India created, adopted, enacted and gave to ourselves. Thus by a sleight of words practiced in the drafting of the Constitution, Creature [The Executive] was placed in a commanding position over its Creator [We the People of India].

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 infringe upon the Fundamental Rights affirmed by We the People of India as being inalienable, Article 33 was inserted in the Constitution by a process 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 institutionalized slavery and legalizing that slavery in the name of this Fraud upon the Constitution that Article 33.

F

CITIZEN SERVICEMANS RIGHTS

Thus the first casualty of the failure as detailed above is Citizen Servicemans rights. Considering that the Servicemen have dedicated their lives for the defense of the rights of the citizens, to deny these very servicemen the rights which the general citizens enjoy would be very tragic. While some rights will need to be compromised 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 people 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

26

military rules in every U.S. war since the Revolution. But Congress was also aware of the professional soldier’s compelling argument that autocracy is a military necessity. As General William Tecumseh Sherman warned in 1879: “An army is a collection of armed men obliged to obey one man. Every change in the rules which impairs the principle weakens the army.”22

XVI

SERVICEMENS RIGHTS TO HUMAN RIGHTS

...the adoption of the HRA, which incorporated most of the European Convention on Human Rights (‘ECHR’ or ‘Strasbourg Court’) and obligated domestic courts to apply international human rights law. The HRA has renewed focus on the independence of the judiciary. 23 6(1) states: In the determination of his civil rights and obligations or 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. Judgment shall be pronounced 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 security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. The rights of the servicemen can not be abridged completely neither by 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 situation.24
Time: Criminal Justice: The Serviceman’s Rights Friday, Aug. 13, 1965 Read more:http://www.time.com/time/magazine/article/0,9171,834202,00.html 23 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. 24 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
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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 expressed his conviction that the guarantees of the Bill of Rights were not antithetical to military discipline. In doing so, he acknowledged that military 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 courtsmartial.25 Men should be confident that they will get justice and fair play from the society and from Government. Regrettably, today the morale is completely 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 denigrating the soldiers. Maj.Gen. (Retd.) V. K. Madhok, who was the Additional Director-General of the Territorial 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 lose faith in the Systems. The system, whether it is promotional, whether it is reward or whether it is punishment’ The Military Justice System cannot be solely for the purpose of enforcing obedience in a hierarchical fashion, it must also ensure fairness. A lack of fairness in the administrative and disciplinary process can seriously undermine the cohesion, morale and discipline of the personnel and impact negativity on unit effectiveness in peace as well as war.26 The Indian Supreme Court has observed: Our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines 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.27 The right to a fair trial is a fundamental safeguard to ensure that the individuals are protected from unlawful and arbitrary deprivation of their human rights and freedoms. The Military 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 Mercenary
Oxford Companion to US Military History: Citizens’ Rights in the Military. http: //www.answers.com/topic/citizens-rights-in-the-military#ixzz1YzDMJQWP 26 Jha, UC., The Military Justice System in India: An Analysis 2000 pg-141 27 Sudhir Chandra v. Tata Iron and Steel Co. Ltd, A.I.R 1984, S.C 064
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force, is the progenitor of Indian Military Justice system.28 But the provider of this System, i.e, the Britishers, along with countries like United States of America, Australia, Canada and South Africa, whose Military 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 Judiciary. Most of the archaic provisions being still intact in the Indian Military 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 enlightenment, 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 position all their lives, never seeing anything 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 forming 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 collar ’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 related demands and not for restoration of basic human rights in the military justice system.

A

EUROPEAN COURT OF HUMAN RIGHTS & THE MILITARY

In a case in the European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms (”the Convention”) ruled that court martial
28

Jha, UC.,The Military Justice System in India: An Analysis , pg-293

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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.29 The case of Findlay v. UK, decided 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 proves 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,30 the catch all Article 134, ( and in our case Section 63 of Army Act : Conduct prejudicial to good order and military discipline), punishes as a crime ’all disorders and neglects to the prejudice of good order and discipline in the armed forces.’ Does this satisfy the standards of vagueness as developed by the civil courts? It is not enough to say that a court-martial may be reversed on appeal. One of the benefits of a civilian trial is that the trap of Article 134 may be avoided by a declaratory judgment proceeding 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: ”None of the travesties of justice perpetrated under the Uniform Code of Military Justice (UCMJ) is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.”.31 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
Findlay v. The United Kingdom, 110/1995/616/706, Council of Europe: European Court of Human Rights, 25 February 1997, available at: http://www.unhcr.org/ refworld/docid/3ae6b66d1c.html [accessed 8 Nov 2011] 30 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] 31 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]
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principles are concerned) held with regard to who can and can not be court martialed. Succinctly stated, it says, Court martial can not try 1. when nature of crime and military duty has no direct connection. 2. discharged/retired soldiers for offenses committed while in service. 3. unless Military status, nature of crime, time and place of offence all put together give it jurisdiction.

XVII

ARMED FORCES TRIBUNAL

The recent institution of the Armed Forces Tribunal, under the Act , 2007, having an Original as well as Appellate Jurisdiction, does not have any jurisdiction in matters relating to transfers, postings, leave and Summery Court Martial (except where punishments involve dismissal or imprisonment for more than three months). This serious lacuna in its Original Jurisdiction leaves space for corrupt practice to seep in in the form of discretion of the Commanding Officers. That there is no provision of legal aid in the said Act, itself undermines Fair Trial. ‘Though there is an exclusive body to deal with such litigation, some in-house attitudinal changes are much desired which should not be just rejected at the threshold. The AFT cannot be a panacea for all problems. All stakeholders should be open to flexibility in thought and action without which all statutory and Parliamentary steps would not result in full realization of the final objective.’32

XVIII

MENS REA & UNSPECIFIED UMBRELLA CRIMES

The most necessary aspect in a crime is the mental intent of the accused. At common law, conduct could not be considered criminal unless a defendant
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
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possessed some level of intention either purpose, knowledge, or 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 system 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 order and discipline. Any person subject 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 authorities can not find any other specific charges, they fall back on such umbrella provisions. A study of recent trends would lead one to conclude that the fundamental requirements of mens rea is grossly violated in attempt to “discipline & punish” under these umbrella crimes. ‘Bentham’s Panopticon is, for Foucault, an 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 monitor 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 objects of observation. As a result, control is achieved more by the internal monitoring of those controlled than by heavy physical constraints. The principle of the Panopticon can be applied not only to prisons but to any system 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 society. It is the instrument through which modern discipline has replaced pre-modern sovereignty (kings, judges) as the fundamental power relation.’33 32

‘Devils Article’ (Section 63 of Army Act) is like a Panopticon through which the established military authority controls the subjects within its power. The high profile courts martial of Generals of the Army in recent times puts all subject members (which means the entire military from highest generals to the lowly soldier) under the terror of being subject to observation as when the power chooses and hence the military has strong motivation to not define what exactly are the crimes under the umbrella crimes under Section 63 but it can be applied as per the wishes of the power. ‘Foucault particularly emphasizes how such reform also becomes a vehicle of more effective control: ‘to punish less, perhaps; but certainly to punish better’. He further argues 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.’34 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 observed, they must act as if they are always objects of observation.” This is cruel and inhuman as the fundamental requirements of mens rea is not required to punish and hence in violation 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!

XIX
A

TOPICS FOR FURTHER RESEARCH

NEED FOR GENUINE REFORM 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

Gutting, Gary, “Michel Foucault”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/ fall2011/entries/foucault 34 ibid

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we know from inspecting rich American women, are ludicrous, embarrassing and horrific.’35 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, nevertheless, providing an atmosphere where unquestionable obedience is cultivated by posing a threat that disobedience will be penalized, cannot be accepted. That the Forces requirement to uphold discipline can be understood with regard to offences like desertion, dereliction of duty, absent without leave and disobedience of command, but penalising such offences has to be in conformity with human rights perspective. Strangely, even in disobedience of command the ability to recognise a legal command from an illegal command emanates out of “loyalty to the constitution” and not to individuals. A Military Trial should not have a duel function as an instrument of discipline and as an instrument of justice, but must rather be an instrument of justice. In fulfilling this function it will also promote discipline.36

B

COMPARATIVE STUDY OF REFORM OF THE MILITARY JUSTICE SYSTEM

A comparative study of reform of the Military Justice System of the Developed world which have to a large extent been able to control and limit actual bias and accusations and perception of unlawful command influence in judicial proceedings by restricting the role of convening authority and drawing up a tentative list of reform from the best practices in other liberal democracies of the world, we can draw our own list:

C

LIMITING THE ROLE OF CONVENING AUTHORITY

The convening authority, owing to his dominant position and control over every aspect of the disciplinary proceedings, holds an authoritative and influential position which at times is used against the detriment of the accused. Thus to stop any kind of corrupt practice first and foremost step to be taken should be to abolish the convening authorities power to confirm, or review or refer a case for revision. Secondly as in British Military Justice System,
35 36

Stephen Fry, Moab is My Washpot 23 (1997). Jha,U.C.,The Military Justice System in India: An Analysis, Chaper 9. Para 2.

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the duties of the convening authority relating to convening a Court Martial, should be divided between two independent authorities- the Prosecuting authority and the Court Administrative authority.37 The pre-trial instruction to court member to be curtailed. Any extra-judicial pressures which acts as Obstructio of justice and should be made a cognizable offence.

D

EFFECTIVE JUDICIAL REVIEW OF DUE PROCESS & THE CONVENING AUTHORITY

The convening authority with its unbridled powers goes unquestioned even when it exerts unlawful command influence. In India there is no system of Judicial Review for such actions of the convening authority. For Rule of Law to be effective in any institution, open and transparent access to Judicial Review is the need of the hour. The convening authority should be held accountable for its corrupt or biased actions. Military judges to be insulated from non-legal chain of command. Full time trial and defence should be outside the influence of the commanders.

E

INDEPENDENCE OF THE JUDGE ADVOCATE GENERAL BRANCH

Removing the Judge Advocate General from the chain of command and putting it under the Ministry of Defence, would ensure fair trial as it would be free from the undue command influence of the convening authority. An independent JAG is required 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 important as the Court consists of officers 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.
37

Jha,U.C.,The Military Justice System in India: An Analysis, pg 299

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F

DIVIDING OFFENCES

The provisions contained in the Military 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 dismissed from service through administrative action, thus amounting to making him undergo double punishment. This happens when the convening authority has some ill will towards the accused. It was a relief to come across a recent judgement passed by the Armed Forces Tribunal, Chandigarh wherein a significant ruling 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 aspect is to make to make mens rea explicit mandatory in all criminal findings. Within India, courts martial could try only those offences that is service connected.

G

LEGAL AID AND PROCEDURAL RIGHTS OF THE ACCUSED

It is very important that for a trial to be just and fair, legal aid be provided at an early stage. It is also to be seen that Military counsel are law trained officers who can assist and advise 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 fundamental rights should be provided even though it is necessary to curtail certain 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 36

award compensation to those who have been victimised by the system. This will ensure that the persons in authority will judiciously take decisions and afford due justice. The Appellate Tribunal be also vested with powers over all matters regarding postings, leave, summary 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.

XX

IMPETUS FOR REFORM

Finally the impetus for reform should come from outside the military establishment that is to say that our law makers should bring about Amendments 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 constraints. ‘Because the military has been so singularly unconscious of its defects and so inept at correcting those it does recognize, countless 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’ 38 Superior courts like Supreme Courts and High Courts have to protect Armed forces personnel from violation 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 impartial, unbiased, humane Military Justice system.Sadly, the Military Top brass has conflict of interests in initiating reform and nothing much may be expected from them. It is ridiculous that some Generals even
38 See SHERRILL R, Military justice is to justice as military music is to music (Harper colophon books, CN 230) [Loose Leaf] 217 (1970).

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project the military system as some thing ideal to be adopted for the rest of the nation. 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 severe but can one be sure it is fair? This is typical of the ‘affirmative deception’ practiced consciously or unconsciously by the military to reinforce the official perspective. In the military system, the CO/Commander is the police (law enforcer), the investigator, the prosecutor, the judge and the jury and the jailer and the executioner. Each duty has conflicts of interest and violates the fundamental principles of separation of duties. To hail this system with a 95+ percentage of conviction as the sole criteria for the goodness is fundamentally flawed.

XXI

LAW MAKERS’ CONVICTION 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 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 requirements of a modern society. If the Indian Parliament is convinced that the military justice system is bereft of the essence of justice, drastic reforms may, hopefully, be forthcoming.

XXII

SUPERIOR JUDICIARY’S DUTY TO PROTECT RIGHTS OF THE SERVICEMEN

Though the Supreme Court and the High Courts have felt that in the absence of any effective steps taken by the parliament and the Central Government, it is their obligation to protect and safeguard the constitutional rights of the persons enrolled in the Armed Forces, to a permissible extent, the soldier is 38

still at the mercy of a legal system that has not changed since its inception in 1911 and adoption in 1950s. The legislation containing the Military Justice System is unable to meet the demands of an enlightened society and the present day cadre of the mixed forces. The dissatisfaction has resulted in a large number of armed forces personnel (approximately 10,000 cases) approaching the higher judiciary for relief.39 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 citizen 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 constitutional and Human Rights is in no way less than that of the soldiers of UK, Australia or canada!

XXIII

CONCLUSION

Corruption in Military Justice System, 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 phenomena in the Military Justice System, where bribery, a quintessential form of corruption, is not an issue, but the act of the convening authority motivated by a misplaced sense of ‘discipline and punish’, rather than any financial reward, is definitely the issue. Then again, when a person in authority motivated by sadistic pleasure abuses his/her power by meting out cruel and unjust treatment to those subject to his/ her authority, is not engaging in an economic crime motivated by economic considerations but surely motivated by a desire to exercise power for its own sake, smacks of corruption or corrupt practice. The people in excess of power exercise this power even when used legally to the detriment of citizen accused and thus we can safely assume such acts are clear case of corruption in the criminal justice system of the military. Even the wide disparity in sentencing (from letting off even with out prosecution to severst punishment even beyond what is authorized under the law) is a result of the influence of the convening authority which invariably sways the Court Members decision and the trajedy is that no one ever was prosecuted
The 10th Report of the Parliamentary Standing Committee on Defence(2005-06), paras 10 and 12
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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 order 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 “Military Lok Pal” as was advocated by the civil society by Anna Hazare for the civilian investigation and prosecution? Shouldn’t our servicemen be equally benefited by such a revolutionary concept as our civil society would be under the Lok Pal? The best way to conclude is to quote Justice Ghanshyam Prashad ‘While the judiciary has duly recognized the requirement of maintaining discipline in the defence services, it has abhorred the actions which have been inconsistent with the Constitutional principles of the nation and rightly so, since merely by joining the defence forces, the members of such forces do not cease to be citizens of the country. While fundamental rights of members of the forces may be restricted, they remain full-fledged citizens of the country and amenable to the same safeguards as are available to other citizens.’ *********************************

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