Institutional Corruption in Military Justice System

Institutional Corruption in Military Justice System
Chandra Nath ∗
February 16, 2013
∗ nath@computer.org He is an Independent researcher engaged in research in information security, privacy, law & justice.
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Contents
1 Institutional Corruption in Military Justice System . . . . . . . . . . . . . . . . . . . . . . . . 3
A Constitution & Statutes: Separation of Duties & Checks and Balances . . . . . . . . . . . . . . . . . . 3
B Changes in Institutional Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C Changed Societal Circumstances & Need for Overhaul . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2 Military justice is not a true system of law at all . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 How does Corruption Manifest itself In the Military Justice System? . . . . . . . . . . . . . 4
4 Concept of Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5 Legitimate Rights of Servicemen for Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6 Rule of Law in the Scheme of Military Justice System . . . . . . . . . . . . . . . . . . . . . . . 6
A Principle of Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B Autonomous judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7 Position of Convening Authority- Risk of Corruption . . . . . . . . . . . . . . . . . . . . . . . . 7
A Discipline v. Citizen Servicemans Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8 Unlawful Command Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9 Analysis of the High Court of Australia Judgement . . . . . . . . . . . . . . . . . . . . . . . . . 10
A UCI Actual and Appearance of UCI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10 The Constitution viz a viz Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A Article 33 & The Army Act, the Navy Act and the Air Force Act. . . . . . . . . . . . . . . . . . . . . 10
B Fundamental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C Limits on the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D Preamble to the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
E Article 33 is in violation of the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
F Citizen Servicemans Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11 Servicemens Rights to Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A European Court of Human Rights & the Military . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12 Armed Forces Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
13 Mens Rea & unspecified Umbrella Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14 Topics for further Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A Need for Genuine Reform in Military Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
B Comparative study of reform of the Military Justice System . . . . . . . . . . . . . . . . . . . . . . . . 16
C Limiting the Role Of Convening Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D Effective Judicial Review of Due Process & the Convening Authority . . . . . . . . . . . . . . . . . . . 16
E Independence of the Judge Advocate General Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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F Dividing Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
G Legal Aid and Procedural Rights of the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
H Appellate Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
15 Impetus for reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
16 Law Makers’ conviction of the need for reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
17 Superior Judiciary’s Duty to Protect Rights of the Servicemen . . . . . . . . . . . . . . . . . . 18
18 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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CORRUPTION IN MILITARY JUSTICE SYSTEM
“In the determination of his civil rights and obligations of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law.” 1
1 Institutional Corruption
in Military
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? 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 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 jus-
tice 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.
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
1 European Convention on Human Rights (ECHR or Strasbourg Court) Article (6)1
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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 ‘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’.
2 Military justice is
not a true system of
law at all
Obviously the reader should be aware
of the origins of Indian military law,
just as the American military law,
and particularly the fact that it 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.” 2
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.”
3 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
factors- being 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
2 Benso, Daniel H, Military Justice in the Consumer Perspective, Arizona Law Review,595 (1971), Vol 13, http://repository.law.
ttu.edu/bitstream/handle/10601/312/benson3.pdf?sequence=1 [accessed 2 October 2011]
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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.” 3
“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 ‘courtmartial’
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 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.” 4
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 ratingsin
short, for their future
progress in the service.
Conceding to military per-
sonnel that high degree of
honesty and sense justice
which nearly all of
them undoubtedly have,
the members of a courtmartial,
in the nature of
things, do not and cannot
have the independence of
jurors drawn from the
general public or of civilian
judges.” 5
4 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
in support of his reference to each of
these high officials in his classic on the
Law of the British Constitution. 6 :
“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
3 See Citizens Against Military Injustice, a non-profit advocacy organization http://www.militarycorruption.com/marinejustice.htm
an advocacy group for Justice for US Marines,
4 See Id.
5 Lt Col Prithi Pal Singh Bedi etc v Union of India and Others, A.I.R 1982, S.C 1413
6 Dicey A V, Introduction to the Study of the Law of the Constitution, http://www.constitution.org/cmt/avd/law_con.htm
6

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.”
7
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.
5 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 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. 8 No wonder, to
be court-martialed in the Army lingo
mean to be convicted! 9 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.’ 10
6 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. 11
The stage or Rule of Law was first
reached in the democratic States of
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
well-organised society; secondly, decision
of all disputes by independent
courts not only between subject and
subject or citizen and citizen but also
7See Id.
8Harry 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)
9West, Command Influence, in CONSCIENCE AND COMMAND: JUSTICE AND DISCIPLINE IN THE MILITARY 73 (1. Finn
ed. 1971)
10Times, Friday, August 13, 1965 Times Criminal Justice: The Serviceman’s Rights
11Janet 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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etween 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
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.
7 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.” 12
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
12 Handbook, Center for Democracy and Governance, U.S. Agency for International Development: A Handbook on Fighting Corruption,
Feb 1999 http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnace070.pdf Last accessed 8 Nov 2011
8

esponsible for convening the Court
Martial.
The convening officer would draw
up a convening order, which would
specify, inter alia, the date, place and
time of the trial, the name of the
president and the details of the other
members, all of whom he could appoint.
He orders the Judge Advocate
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 con-
firming 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.
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 court-martial,
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 le-
13 Findlay v. The United Kingdom (110/1995/616/706) 25 February 1997: Independence and Impartiality of Court-martial; Convening
officer central to prosecution and closely linked to prosecuting authorities. http://www.hrcr.org/safrica/administrative_justice/
findlay_uk.html[Last accessed 8 Nov 2011]
9

gal qualification or experience in the
officers making the decisions either
at the court martial or review stages
made it impossible for them to act
in an independent or impartial manner.
13
8 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
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
facilitating impartial justice, he
by his position is actually the
10
one who influences the decisions
and thus acts as the kingpin in
the ‘obstruction of justice’.
9. The investigator, prosecution,
the court, the defence all dance
to the tune of the commander
and try their best to make his
wishes come true.
10. If a hypothetical equivalent 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.
9 Analysis of the
High Court of Australia
Judgement
Analysis of Australian judgement 14
makes it clear that:
1. Courts martial are created by
Act of Parliament but violative
of the constitution. (CHAP-
TER IV.- THE UNION JUDI-
CIARY in our case)
2. Judges have NO tenure or 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.” 15
“Conclusion: When you
divorce the Military from
Military Justice, you are
left with Justice!”
10 The Constitution
viz a viz Statutes
A Article 33 & The Army
Act, the Navy Act and
the Air Force Act.
These Acts were enacted under 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
14 Lane v. Morrison [2009] HCA 29 26 August 2009 C3/2008 http://goo.gl/K85ZmAccessed 8 Nov 2011
15 N.R. Ajwani vs Union Of India (Uoi) And Ors. Delhi High Court on 21 December, 2000 Equivalent citations: 95 (2002) DLT 770
http://indiankanoon.org/doc/1408854/ Last accessed 8 Nov 2011
11

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:
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]. 16
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 pleasure by
some superior being. This approach
by the Constitution Makers made
FREEDOM OUR BIRTH RIGHT [in
the words of Lokmanya Tilak] FREE-
DOM conferred upon us at the mercy
of The Executive, which was created
under the Constitution, which 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.
16 [NOTE that Article 13 (4) did not form part of original Constitution which We did adopt, enact and gave to ourselves on 26.11.1949
and was inserted by the Constitution [Twenty Fourth Amendment] Act, 1971, Sec 2.]
12

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 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. Ev-
ery change in the rules which impairs
the principle weakens the army.” 17
11 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. 18
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.
19
In 1962, Earl Warren, then Chief
Justice of the United States, lectured
at New York University on The Bill
of Rights and the Military and 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.
20
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
17 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
18James 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.
19See 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
20Oxford Companion to US Military History: Citizens’ Rights in the Military. http://www.answers.com/topic/
citizens-rights-in-the-military#ixzz1YzDMJQWP
13

lose faith in the Systems. The system,
whether it is promotional, whether it
is reward or whether it is 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. 21
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 coexist.”
22
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
force, is the progenitor of Indian
Military Justice system. 23 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 as followed in the UK
was violative of human rights.
These were successfully raised against
the United Kingdoms Army Act in
1997 in the case of Findlay v. the
United Kingdom before the European
Court of Human Rights. 24
The case of Findlay v. UK, 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
21 Jha, UC., The Military Justice System in India: An Analysis 2000 pg-141
22 Sudhir Chandra v. Tata Iron and Steel Co. Ltd, A.I.R 1984, S.C 064
23 Jha, UC.,The Military Justice System in India: An Analysis , pg-293
24 Findlay v. The United Kingdom, 110/1995/616/706, Council of Europe: European Court of Human Rights, 25 February 1997,
available at: http://www.unhcr.org/refworld/docid/3ae6b66d1c.html [accessed 8 Nov 2011]
14

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, 25 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 courtmartial
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.”. 26
US Supreme Court in O’Callahan
v. Parker land mark ruling (while
may not be authoritative, is very
persuasive for us in India as far as
the legal principles are concerned)
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.
12 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. Inspite of the
enthusiasm generated when AFT was
inaugurated, it should be stated that
these are part of the executive and
do not have the independence of the
higher judiciary not to talk of the
teeth required to ensure its decrees
are executed. AFTs are just paper
tigers violating the Human Rights of
the soldier!
“Though there is an exclusive
body to deal with
such litigation, some inhouse
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.”
27
13 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
possessed some level of intention
either purpose, knowledge, or
25See O’Callahan v. Parker, 395 U.S. 258 (1969)U.S. Supreme Court http://supreme.justia.com/us/395/258/index.html [accessed
8 Nov 2011]
26 Glasser, Justice and Captain Levy, 12 COLUM. F. 46 (1969) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=
case&court=us&vol=395&invol=258 [accessed 5 June 2011]
27Ghanshyam Prashad J, THE JUDICIARY AND MILITARY LAW, The tribune 4 Nov 2011 http://www.tribuneindia.com/2011/
20111104/edit.htm#6 Last accessed 8 Nov 2011
15

ecklessness 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.”
28
‘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.” 29
From this perspective the whole
Military could be considered a grand
design to punish any one that has
stepped out of its ‘normal behaviour’.
The constant fear of being targeted
for such punishment under ‘Devils
Article’ (Section 63 of Army Act)
is the same as the “inmates never
know whether they are being observed,
they must act as if they are always
objects of observation.” This is
28 Gutting, Gary, “Michel Foucault”, The Stanford Encyclopedia of Philosophy (Fall 2011 Edition), Edward N. Zalta (ed.), http:
//plato.stanford.edu/archives/fall2011/entries/foucault
29 ibid
16

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!
14 Topics for further
Research
A 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
we know from inspecting
rich American women,
are ludicrous, embarrassing
and horrific.” 30
It is a fact that the Armed Forces
being a specialized society with its
own set of tradition, has a law which
has its basis in obedience, 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. 31
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 re-
30 Stephen Fry, Moab is My Washpot 23 (1997).
31 Jha,U.C.,The Military Justice System in India: An Analysis, Chaper 9. Para 2.
32 Jha,U.C.,The Military Justice System in India: An Analysis, pg 299
17
vision. Secondly as in British Military
Justice System, 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.
32 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 De-

fence, 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.
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 award compensation to
those who have been victimised by
the system. This will ensure that
18
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.
15 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” 33
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 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+ per-
centage of conviction as the sole criteria
for the goodness is fundamentally
flawed.
16 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.
17 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 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. 34
If the reform to protect the rights of
the citizen soldier is not forthcoming
from the law makers, the only way the
judiciary can force it is to strike down
the violation of the rights of the 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!
18 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
33See SHERRILL R, Military justice is to justice as military music is to music (Harper colophon books, CN 230) [Loose Leaf] 217
(1970).
34The 10th Report of the Parliamentary Standing Committee on Defence(2005-06), paras 10 and 12
19

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 executive
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 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 revolu-
tionary 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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