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Chandra CP Nath May 31, 2011
After the GCM of Lt General Rath, prosecution counsel Raghavendra Jha reports that ”the punishment given by the court was too lenient. He should have been given exemplary punishment considering that the court found him guilty on three charges. He could have been dismissed after he was found guilty of moral turpitude”. Strident cacophony in the media about arresting corruption in the Defence forces has sent Army, GCM and the general public baying for the blood of the accused. Where does the cacophony of the media leave Military Justice system is what responsible citizens and jurists of the country should ponder. Lt General P K Rath was punished severely for giving security clearance for a school adjacent to the military area. Did the prosecution prove a culpable mental state where he committed the crime knowingly, intentionally, recklessly and/or negligently or was it just an error of judgment in an administrative function? Are these questions too sophisticated to be asked from the prosecution in a General Court Martial where the judges themselves are untrained in law and not capable of asking such questions. the UK Court Martial, 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.
Remember our Court Martial which are modeled on the lines of UK Court Martial are no diﬀerent in this respect and it is just a matter of time our Court Martial will also be declared violative of Human Rights of the accused. There are so many educational institutions in/adjacent to the military area/cantonments in India. Should we punish all those who gave security clearance for them? Lt General Rath, just because he was in uniform could be punished for an error of judgment in a purely administrative function. 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 oﬀence? Here we are the GCM prosecution baying for his blood! Is this the way we treat our distinguished soldiers who have served with distinction for more than 30+ years? Why would any one like to ”The lack of legal qualiﬁcation or experijoin the military if young men realize that the socience in the oﬃcers making the decisions eiety is thankless for the service these men in uniform ther at the court martial or review stages provided in a life time career. I am not saying that made it impossible for them to act in an the GCM should be lenient to people who have reindependent or impartial manner.” writes ally committed despicable crimes against society. Is European Human Rights Court (in Findlay it a despicable crime against society to want a private v. United Kingdom in 1997) while declarschool adjacent to the military area? The fact that ing that the Army Courts Martial of UK are the school is not part of Mayo College is not reason violative of Human Rights. enough to declare that the security clearance is defecFurther, European Human Rights Court expressed tive. Have the prosecution proved the immense secuthe unanimous opinion in this particular case about rity danger to Indian military establishment from this 1
conduct prejusuch a liberal democratic society be themselves dedicial to good order and military discipline. US Supreme court democratic society like ours go back to ancient socistated in O’Callahan v. for milito oﬀence under the ”Devils Article”: Army Act Sectary law has always been and continues to tion 63 when you can not charge the accused with any be primarily an instrument of discipline. while a milipositive thing. sitivity to the fairness of the system to one who has The corresponding Section 63 of the Army Act or volunteered for service with the military and his willits equivalent has been the weapon of choice to punish ingness. in Law and Inequality. discipline in the armed forces. prived the fruits of such values ? These are questions punishes as a crime ’all disorders and nethat should engage any intelligent citizen in general glects to the prejudice of good order and and jurists in particular. is more than uniform. Justice and Captain Levy. reveals the milinot a true system of law at all.particular school as against Mayo College? Did the As recently stated by eminent jurists: judges of the GCM ask the prosecution this question? None of the travesties of justice perpetrated Is this a military oﬀence to provide security clearance under the Uniform Code of Military Justice to this particular school? The practice of falling back (UCMJ) is really very surprising. but is tary’s eﬀorts to set itself apart from. and ”something indulged. This crime has put military law to work in many other armies in the Lord Chief Justice Hale wrote that trial world and that too for centuries. a cosmetic feature of military justice. by military courts may not be permitted in time of peace. A journal of Theory Sir William Blackstone agreed.e.’ Does this The reason the Military justice system is under satisfy the standards of vagueness as develconstant attack from every quarter in the western oped by the civil courts? A civilian trial society and there is constant attempt to improve it is held in an atmosphere conducive to the or at least doubt its ability to provide justice is a very protection of individual rights. 2 . India but all other Armies where the laws were derived from English laws which was originally derived Is retributive justice the goal of a civil society that directly from Roman Laws. rather than aleven above. ”Conduct unbecoming”. the man in title for this oﬀence in the legal research. values liberties and human rights? Should a liberal In a scathing critical remark.. The reason why it is not under attack tary trial is marked by the age-old manifest in India is tragic because it smacks of certain insendestiny of retributive justice. the favorite sumer of the military justice system.Glasser. This catch all oﬀence has been a in India including the Supreme court have maintained subject of research in the military law all over the a hands oﬀ stand much to the detriment of the conwestern world. not other military oﬀence under the Army Act is a very justice. when the King’s The setting of boundaries for acceptable ofCourts are open for all Persons to reﬁcer conduct. i. Parker: eties where such values were denied to its soldiers? Should those men in uniform who defend freedoms of [T]he catch all Article 134. whether in grave cases that ceive Justice according to the Laws of might lead to a capital court-martial or in the Land. and Practice.” relative minor incidents that could result in Hale commented that military justice is an Article 133 violation. if and when necessary to make the supreme men in uniform who just could not be charged with sacriﬁce in call of duty for the nation. the civil society and Constitulowed as a law” because of the need tion it defends” writes Elizabeth L Hillman for order and discipline in the army. Even the courts any other oﬀence. old one with lot of history behind it not just here in 12 Columbia Forum.
worthwhile jurists must be concerned not just with what the law is. than by either a refusal to admit the illness. Benson in their milestone article titled ”Modern Military Justice”: In the long run.themselves” concludes Hillman in her article titled: ”Gentlemen Under Fire: The US Military and ”Conduct Unbecoming” in Law and Inequality. most importantly. This is nothing new. ************************** 3 . but to oﬃcers and gentlemen. the patient’s health will be more improved by proper diagnosis and treatment.”This crime has put military law to work assuaging fears that an increasingly heterogeneous military is in danger of un-becoming itself. Legislators and jurists can make bad laws. So. with what it might or should become. Its history reveals the unstable hierarchies that make the military intelligible not just to outsiders. but. The best way to conclude this article is by quoting Charles M Schiesser and Daniel H. or a desire for the patient’s demise . Society changes and the laws lag behind. A journal of Theory and Practice.
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