Institutional Corruption in Military Justice System

Chandra Nath February 15, 2013

nath@computer.org

He is an Independent researcher engaged in research in information security, privacy, law & justice.

Contents
1 Institutional Corruption in Military Justice System A Constitution & Statutes: Separation of Duties & Checks and Balances . . . . . . . . . . . . . . . . . . B Changes in Institutional Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C Changed Societal Circumstances & Need for Overhaul . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Military justice is not a true system of law at all 3 How does Corruption Manifest itself In the Military Justice System? 4 4 4 4 5 5 6 7 7 8 8 8 9 10

4 Concept of Rule of Law 5 Legitimate Rights of Servicemen for Rule of Law 6 Rule of Law in the Scheme of Military Justice System A Principle of Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B Autonomous judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Position of Convening Authority- Risk of Corruption A Discipline v. Citizen Servicemans Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Unlawful Command Inuence

9 Analysis of the High Court of Australia Judgement 11 A UCI Actual and Appearance of UCI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 The A B C D E F Constitution viz a viz Statutes Article 33 & The Army Act, the Navy Act and the Fundamental Rights . . . . . . . . . . . . . . . . . Limits on the State . . . . . . . . . . . . . . . . . . Preamble to the Constitution . . . . . . . . . . . . Article 33 is in violation of the Constitution . . . Citizen Servicemans Rights . . . . . . . . . . . . . 11 11 11 12 12 12 13

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11 Servicemens Rights to Human Rights 13 A European Court of Human Rights & the Military . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 12 Armed Forces Tribunal 13 Mens Rea & unspecied Umbrella Crimes 14 Topics for further Research A Need for Genuine Reform in Military Justice . . . . . . . . . . . . . B Comparative study of reform of the Military Justice System . . . . . C Limiting the Role Of Convening Authority . . . . . . . . . . . . . . . D Eective Judicial Review of Due Process & the Convening Authority E Independence of the Judge Advocate General Branch . . . . . . . . . 15 15 17 17 17 17 17 17

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F G H

Dividing Oences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Legal Aid and Procedural Rights of the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Appellate Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 18 19 19 19

15 Impetus for reform 16 Law Makers conviction of the need for reform 17 Superior Judiciarys Duty to Protect Rights of the Servicemen 18 Conclusion

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

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 There is a widespread recognition act as paragons of virtue is to inthat corruption is morally venal and vite corruption. The only safe way detrimental to the cause of Indian to tackle this is by separation of dusecurity. Does this mean corrup- ties, checks and balances against each tion, which can be seen rampant in other and credible threat of punisharms procurement and alleged pay- ment and high probability of detecbacks which has been a serious issue tion of corruption. Risk taking is in from the mid 1980s? The above being human nature and when the probabilvery much the part of institutional ity of detection is low, even the othcorruption, we will, never the less, fo- erwise reasonably law abiding tends cus ourselves on the aspect of corrup- to jump the red light as we all know. tion in the Military Justice System When the stakes are high, the motives for risk taking is higher too. here.

Institutional Corruption in Military Justice System

and Human Rights.

Changed Societal Circumstances & Need for Overhaul

Constitution & B Changes in Institutional Process Statutes: Separation of Duties & Checks and Corruption in any institution cannot be assumed to be of recent origin, Balances
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 rectied 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 citizens constitutionally dened fundamental

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 jus1 European

It is also pertinent that an institutional process to be corrupt it must suer 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 rst 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

Convention on Human Rights (ECHR or Strasbourg Court) Article (6)1

consistent with the modern trends martialing soldiers in in the society. What was right for peacetime evoked strong the Roman legions is obviously not protests from Parliament. suited for the citizen soldiers of the Lord Chief Justice Hale 21st century. The failure of the modwrote that trial by milern military criminal justice system itary courts may not can squarely be attributed to the failbe permitted in time of ure of the society to appreciate this peace, when the Kings and change with the times. Military, Courts are open for all bound by tradition may not see the Persons to receive Jusneed for this change and may even be tice according to the Laws highly antagonistic to any change and of the Land. Hale comthat in no way means change is not mented that military juscalled for despite the smug satisfactice is not a true systion of the traditional military brass. tem of law at all, but The so called military experts of the is something indulged, Television and the writers in the poprather than allowed as a ular media are fundamentally fraudlaw because of the need ulent when they parade military exfor order and discipline pertise as expertise in ner aspects of in the army. Sir William the concept of justice for the soldier, Blackstone agreed. 2 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 Justice Douglas of US Supreme for the civil society. Society should Court, speaking for the majority in question the fraudulent credentials of OCallahan v. Parker, noted: these so called experts.

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 ocials 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 dierent rules, two distinct sets of laws. Youre either in a categoryabove it, or mercilessly beneath its crushing weight. And what does that do to the families of our service

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-

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 oense committed in Britain; instead military ocers were required to use their energies and ofce to insure that the accused soldier would be tried before a civil court.

2 Benso, Daniel H, Military Justice in the Consumer Perspective, Arizona Law Review,595 (1971), Vol 13, http://repository.law. ttu.edu/bitstream/handle/10601/312/benson3.pdf?sequence=1 [accessed 2 October 2011]

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 Inuence. 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 t to bring about a court-martial, then the accused can be assumed to be guilty. I nd the system to be incorrigibly corrupt. Numerous

convictions have been reversed on appeal because of Unlawful Command Inuence. And it is rather strange that there is not a single case where a commanding ocer has suffered prosecution for committing that illegal act or proceeding illegally with mala de intent. Obstruction of justice is as subversive of good order and military discipline as any other military oences. writes the advocacy group in their web site. 4

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

Concept of Rule of Law

The Honble Supreme Court has In UK, Sir Edward Coke is said to be the originator of the concept of Rule observed that: of Law, when he said that the King must be under the god and law and Courts-martial are typthus vindicated the supremacy of law ically ad hoc bodies apover the pretensions of the executives. pointed by a military oLater, Prof. Albert Venn Dicey develcer from among his suboped this concept. Dicey cited cases ordinates. They have alin support of his reference to each of ways been subject to varythese high ocials in his classic on the ing degrees of command Law of the British Constitution.6 : inuence. In essence, these tribunals are simply executive tribunals whose With us every ocial, personnel are in the execfrom the Prime Minister utive chain of command. down to a constable or a Frequently, the members collector of taxes, is unof the court-martial must der the same legal responlook to the appointing ofsibility for every act done cer for promotions, adwithout legal justication vantageous assignments as any other citizen. The and eciency ratingsLaw Reports abound with in short, for their future cases in which ocials progress in the service. have been brought before Conceding to military perthe courts and made, in

3 See Citizens Against Military Injustice, a non-prot 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

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 In the United States, Judge John criminal justice system? One would J. Sirica could comfortably stretch hope that the recent spate of widely the arm of the law to reach a Prespublicized trials by court-martial of ident in oce, Richard Nixon, in the high ranking Generals have focused Watergate aair. national attention on fairness of the military justice system but circum5 Legitimate Rights stances repeatedly reveal that any such hope is all belied.

their personal capacity, liable to punishment or to the payment of damages, for acts done in their ofcial capacity but in excess of their lawful authority. A colonial governor, a Secretary of State, a military ocer, and all subordinates, though carrying out the commands of their ocial superiors are as responsible for any act which the law does not authorise as is any private and unocial person.7

lives to defend and ght 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 eld.

Rule of Law in the Scheme of Military Justice System

of Servicemen for Rule of Law

Our veteran have adopted for themselves a career of commitment and sacrice 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
7 See

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

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 ocials are under the same responsibility as any other citizen for every act they do without legal justication. 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 rst reached in the democratic States of the West. Now Rule of Law envisages, rst, 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

Id.

N. Scheiber and Jane L. Scheiber,Bayonets in Paradise: A Half-Century Retrospect on Martial Law in Hawaii, 19411946,UNIV. OF HAWAII LAW REV. vol. 19, pp. 477-648 (1997, published 1998) 9 West, Command Inuence, in CONSCIENCE AND COMMAND: JUSTICE AND DISCIPLINE IN THE MILITARY 73 (1. Finn ed. 1971) 10 Times, Friday, August 13, 1965 Times Criminal Justice: The Servicemans Rights 11 Janet Munro-Nelson, Rule of Law, A Foot Note in Time, November 2008, http://the-beacon.info/topics/ international-law-united-nations/rule-of-law/ [accessed 8 Nov, 2011]

8 Harry

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 fullled in any State that we may say that Rule of Law in its true sense prevails in that State.

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.

Position of Convening Authority- Risk of Corruption

From an institutional perspective, corruption arises where public ocials have wide authority, little accountability, and perverse incentives. This means the more activities public ocials 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

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 aected 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

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.

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 ocer is the most crucial in the system. He is an ocer 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 ofcer(s) to conduct the Court of Inquiry, he is empowered to accept or reject the Court of Inquiry ndings, 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

responsible for convening the Court Martial. The convening ocer 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 oce to appoint Judge Advocate and failing such appointment, he could appoint one. He also appoints (or orders a commanding ofcer) to appoint a prosecuting ocer and a defending ocer. The convening ocer is responsible for sending an abstract of the evidence to the prosecuting ocer 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 ocer 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 conrmation. The convening ocer usually acts as conrming ocer also. While he may seek JAG advise, he is not bound by that. Courts Martial ndings are not eective until conrmed by a con-

rming ocer. Prior to conrmation, the conrming ocer used to seek the advice of the Judge Advocate Generals Oce, where a judge advocate dierent from the one who acted at the hearing would be appointed. The conrming ocer could withhold conrmation or substitute, postpone or remit in whole or in part any sentence. Once the sentence is conrmed, the defendant could petition the reviewing authorities. The reviewing authorities could seek the advice of the Judge Advocate Generals Oce. He has the power to quash a nding and to exercise the same powers as the conrming ocer in relation to substituting, remitting or commuting the sentence. Neither the fact that advice had been received from the Judge Advocate Generals Oce nor the nature of that advice need be disclosed.

Discipline v. Citizen Servicemans Rights

With this insight about the position of the Convening Authority, it is not out of place to mention that the convening ocer 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 reect no credit on him, to secure a conviction in the teeth of facts.

No one can deny the fact that there is a need for order and discipline in order to ensure that the armed forces function eectively. 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 servicemans 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 ocers, 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 ocers appointed to the court were directly subordinate to the convening ocer 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 ocer central to prosecution and closely linked to prosecuting authorities. http://www.hrcr.org/safrica/administrative_justice/ findlay_uk.html[Last accessed 8 Nov 2011]

gal qualication or experience in the ocers 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

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 t to bring about a court-martial, then the accused can be assumed to be guilty. 5. No prosecuting ocer 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 ocer 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 ofcer 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 ocer. 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

one who inuences 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 qualied person as judge advocate to the court but he has only advisory role and his advice is not binding on the judges to nd guilty or have any say in punishment.

Unlawful Command Inuence

Unlawful Command inuence 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 inuence 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 ocer orders the Court of Inquiry and selects the Presiding ocers and members and indicates covertly or even openly what he wants done. In other words inuences the outcome of the Court of Inquiry. 2. Convening Ocer can reject the Court of Inquiry and order another Court of Inquiry to get the out come he wants and the ocers in the Court of Inquiry are subordinates to him and have to get reports from him to get next promotion/posting. 3. Convening ocer orders the Court Martial and appoints

8. Judge Advocate knows that his promotion and advancement in the career depends upon (f) The decisions of the court the carrying out the wishes of are not mandatory till it is the Commander and the JAG approved by the Home Secknows what the wishes of the retary! commander are. JAG is the one who inuences the course How great will be the indepenof the court martial! Instead of dence of such a court and how fair facilitating impartial justice, he will it be to the accused? If such a juby his position is actually the dicial system is not acceptable to the 10

cititizen, to impose the current mili- A UCI Actual and Aptary judicial system on the citizen solpearance of UCI dier is patenetly defective in statute, structure and processes. To deny this truth would be irrational and illogi- Thus actual UCI aects the fairness cal. of a trial, while the appearance of UCI merely aects the level of public condence in the Military Justice 9 Analysis of the System. Unlawful Command Inuwas an appeal in High Court of Aus- enceDelhi illustrated in in which othe High Court, cers were court martialled for alleged tralia Judgement oences and the Honble Court Held: Analysis of Australian judgement14 makes it clear that: 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 eective only if conrmed by the executive and only for the period of executives 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) !
14 15

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A

The Constitution viz a viz Statutes

Article 33 & The Army Act, the Navy Act and the Air Force Act.

Law reigns supreme and that is the constitutional mandate in this country. The Military Intelligence Directorate cannot, under the parameters xed 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

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 ghting 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.

Fundamental Rights

Conclusion: When you divorce the Military from Military Justice, you are left with Justice!

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 classication among ourselves so far as protection of that Right to Life and Liberty was

Lane v. Morrison [2009] HCA 29 26 August 2009 C3/2008 http://goo.gl/K85ZmAccessed 8 Nov 2011 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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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.

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, notication, 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 denite 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].

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 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].

Article 33 is in violation of the Constitution

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

It is interesting to note that despite there being a clear mandate against allowing any pre-constitution law infringe upon the Fundamental Rights armed 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 rst 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.]

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Citizen Rights

Servicemans ery change in the rules which impairs not be abridged completely neither by
the principle weakens the army.17 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 aect 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 condent 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 indierent, 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 ne soldier had said: However, it needs to be noted with great concern that nothing can be more disturbing to a soldier than to

Thus the rst 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 soldiers 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-

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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

17 Time: Criminal Justice: The Servicemans Rights Friday, Aug. 13, 1965 Read more:http://www.time.com/time/magazine/article/ 0,9171,834202,00.html 18 James Hyre, The United Kingdoms Declaration of Judicial Independence: Creating a Supreme Court to Secure Individual Rights Under the Human Rights Act of 1998, 73 Fordham L. Rev. 423 (2004),http://ir.lawnet.fordham.edu/flr/vol73/iss1/14 last accessed 8 Nov 2011. The HRA incorporates most of the ECHR, including Article 6, which recognizes the right to a fair trial. See Human Rights Act, 1998, c. 42, sched. 1 (Eng.),Article available athttp://www.legislation.hmso.gov.uk/acts/acts1998/80042-d.htm. 19 See generally Eugene R. Fidell, Dwight Hall Sullivan Evolving Military Justice Naval Institute Press, 2002 - Law - 362 pages http://books.google.com/books/about/Evolving_military_justice.html?id=G3tYljWV_zEC Last accessed 8 Nov 2011 20 Oxford Companion to US Military History: Citizens Rights in the Military. http://www.answers.com/topic/ citizens-rights-in-the-military#ixzz1YzDMJQWP

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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 eectiveness 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 benet 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,
21 Jha, 22 Sudhir

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 re 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 nal 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... waters 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 ght 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.

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 eect 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

UC., The Military Justice System in India: An Analysis 2000 pg-141 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]

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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 denitely a matter of shame. In a scathing critical remark, US Supreme court stated in OCallahan 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 benets 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

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 oenses committed while in service. 3. unless Military status, nature of crime, time and place of oence all put together give it jurisdiction.

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 exibility in thought and action without which all statutory and Parliamentary steps would not result in full realization of the nal objective.27

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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 Ofcers. That there is no provision of legal aid in the said Act, itself unUS Supreme Court in OCallahan dermines Fair Trial. Inspite of the

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Mens Rea & unspecied 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

25 See OCallahan v. Parker, 395 U.S. 258 (1969)U.S. Supreme Court http://supreme.justia.com/us/395/258/index.html [accessed 8 Nov 2011] 26 Glasser, Justice and Captain Levy, 12 COLUM. F. 46 (1969) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby= case&court=us&vol=395&invol=258 [accessed 5 June 2011] 27 Ghanshyam Prashad J, THE JUDICIARY AND MILITARY LAW, The tribune 4 Nov 2011 http://www.tribuneindia.com/2011/ 20111104/edit.htm#6 Last accessed 8 Nov 2011

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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 specically 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 specied in this Act, is prejudicial to good order and military discipline shall, on conviction by court- martial, be liable to suer 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 eort is recognised in India and disturbingly, more and more cases, when the authorities can not nd any other specic 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. Benthams 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 prole 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 dene 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 eective 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

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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!

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A

Topics for further Research B Comparative study of

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 horric.30

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 fullling this function it will also promote discipline.31

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 oence.

reform of the Military D 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 inuence 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:

Eective Judicial Review of Due Process & the Convening Authority

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 oences 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
30 32 31 Jha,U.C.,The

The convening authority with its unbridled powers goes unquestioned even when it exerts unlawful command inuence. In India there is no system of Judicial Review for such actions of the convening authority. For Rule of Law to be eective 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 C Limiting the Role Of corrupt or biased actions. Military Convening Authority judges to be insulated from non-legal chain of command. Full time trial The convening authority, owing to his and defence should be outside the indominant position and control over uence of the commanders. every aspect of the disciplinary proceedings, holds an authoritative and inuential position which at times is E Independence of the used against the detriment of the acJudge Advocate Gencused. Thus to stop any kind of coreral Branch rupt practice rst and foremost step to be taken should be to abolish the Removing the Judge Advocate Genconvening authorities power to con- eral from the chain of command and rm, or review or refer a case for re- putting it under the Ministry of De-

Stephen Fry, Moab is My Washpot 23 (1997). Military Justice System in India: An Analysis, Chaper 9. Para 2. Jha,U.C.,The Military Justice System in India: An Analysis, pg 299

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fence, would ensure fair trial as it would be free from the undue command inuence 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 ofcers 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.

powers to terminate the services of any ocer. 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 ndings. Within India, courts martial could try only those oences that is service connected.

the persons in authority will judiciously take decisions and aord 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.

Legal Aid and Proce- 15 dural Rights of the Accused

Impetus form

for

re-

Dividing Oences

The provisions contained in the Military Act pertaining to all the three Armed Forces should be divided into two groups- serious service and civil oences and non serious oences. The latter can have the provision for Plea Bargaining, provided the ocer voluntarily wants to go for it. This will expedite delivery of justice.In the rst 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 signicant ruling was made that the Chief of the Army Sta is not vested with any

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 ocers 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 inuenced 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.

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

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 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 conict 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 armative deception practiced consciously or unconsciously by the military to reinforce the ocial 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 conicts 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 awed.

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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.

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Superior Judiciarys Duty to Protect Rights of 18 Conclusion Corruption in Military Justice the Servicemen

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 ling cases as it has happenned in case of UK Court Martial. Our soldiers right to constitutional and Human Rights is in no way less than that of the soldiers of UK, Australia or canada!

Though the Supreme Court and the High Courts have felt that in the absence of any eective steps taken by

System, as has been dealt with above, does not necessarily conform itself to the straight jacket denition of abuse of power by public ocials for private

33 See SHERRILL R, Military justice is to justice as military music is to music (Harper colophon books, CN 230) [Loose Leaf] 217 (1970). 34 The 10th Report of the Parliamentary Standing Committee on Defence(2005-06), paras 10 and 12

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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 nancial reward, is denitely 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 o even with out prosecution to severst punishment even beyond what is authorized under the law) is a result of the inuence 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? Shouldnt our servicemen be equally beneted 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-edged citizens of the country and amenable to the same safeguards as are available to other citizens. *********************************

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