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Time to put the Court Martial on Trial

Chandra CP Nath June 21, 2011


trident cacophony in the media about arresting corruption in the Defence forces has sent Army scrambling for action. Where does the cacophony of the media leave Military Justice system is a question I rst raise in this article. In addition, the thesis developed for this article is that the current Military Justice System is weighed against the accused and is violative of the human rights. The Indian system will be examined with close reference to UK as these originated from the single common source of Roman laws. Did the Chief violate law by trying to shield his PSO? If the original decision was based on sound professional judgment, why did he buckle and order a Court Martial? Are matters of honour of distinguished soldiers decided in such imsy fashion? To come under pressure because of media onslaught and to ask the Chief to order a court martial may itself be violation of law by the RM because he is interfering with strictly judicial powers of the Chief. Should the error of judgment or act of obstructing the due administration of justice by the Chief and the action of the RM in attempting to inuence a strictly judicial function of the Chief be ignored while Courts Martial punish Lt Gen P K Rath for an error of judgment in a purely administrative function or for that matter Lt Gen Avadesh Prakash for attempting to inuence a purely administrative function of a eld commander, all because they appeared as the accused ? Just think about it! It is an accepted dictum that to perform a superior judicial function, security of tenure is mandatory. Does the Chief or for that matter, any one working under him have any security of tenure? Constitution of India Article 311 protects bureaucracy but not men in uniform! A Naval Chief was dismissed by the RM and there was not even a whimper! How sad? Is the military justice system as it exists in India to day violative of Human Rights ? The case of Findlay v. UK, decided unanimously by the European Court of Human Rights on February 25, 1997 that courts martial are violative of Human Rights had a major eect on courts-martial in all the countries that derived its military laws from the English laws. The resulting changes and reforms forced on UKs system through the Armed Forces Act 1996 and 2006 prove the point that it is just a matter of time that some one raises human rights violation of all courts martial. Our current Army Act is even more archaic than the UK one and largely same as what the colonial power left for us while leaving the country in 1947. This is denitely a matter of shame. Indian Military Justice system is an anachronism as it is totally derived from what was promulgated for a colonial army for the expansion of colonies by the colonial power and not suited for the citizen soldier of a democracy which should believe in liberal values of human rights and protection of the same from usurpation by the State. UK has totally overhauled their system under pressure from Human Rights courts. USA, Australia, Canada and New Zealand have also revised their laws pertaining to military justice system to come to terms with the requirements of a modern soci1

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ety. If the Indian Parliament is convinced that the military justice system is bereft of the essence of justice, drastic reforms may, hopefully, be forthcoming. Lt General P K Rath was punished severely for giving security clearance for a school in the military area. Giving security clearance was a part of his ocial duty. Or else, why would any one seek such certicate from him? Did the prosecution prove a culpable mental state where he committed the crime knowingly, intentionally, recklessly and/or negligently or was it just an error of judgment in an administrative function ? There are so many educational institutions in the military area in India. Should we punish all those who gave security clearance for them? Lt General Rath, just because he was in uniform could be punished for an error of judgment in a purely administrative function. How many such errors of judgment must have happened with the government and the bureaucracy in India that are not punished and not even charged with an oense? Contrast this with a Lt General who was alleged to have tampered with the war diary during Kargil operations. This is not an error of judgment but a alleged crime committed knowingly, intentionally and recklessly, in the eld of military operations in the face of the enemy. He allegedly makes an ofcial record, knowing that it is false in a material respect he knows or has reasonable cause to believe that the record was ocial. He was not even charged with an oense leave alone punished because no media pressure forced the Chief to order a court martial. In contrast the error of judgment in a purely administrative function committed by Lt General PK Rath was charged and punished. The only dierence was, one was placed as the accused in front of a court martial and the other was not. So, every thing revolves around who is placed as the accused in front of a court martial. There was no media pressure on the Chief to charge the Lt General in the Kargil operations. Does it mean media determines who should be charged, who not to be charged? Didnt the Chief breach a known duty to prosecute? What do you call this, military justice ? 2

It did not require much deliberation for the European Court to pronounce that the court martial was not an independent and impartial tribunal, 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 conrming 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 legal 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. Any accused in a court martial in India could claim that his trial by court martial failed to meet the requirements of Article 6 para 1 of the Human Rights Convention (art. 6-1). 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 Kings Courts are open for all Persons to receive Justice according to the Laws of the Land. Do you require great legal acumen to contrast this with what is happening in India to day? For an oense committed in Delhi of inuencing a purely administrative decision making of some other ocer far removed in the hierarchy, (a thing

that must be happening million times every day in the corridors of power in Delhi and state capitals), so many Generals are transported to Leimakhong in Manipur from the rest of India including the capital New Delhi (where all law courts are open and functioning) and a GCM will be conducted and a sentence will be pronounced, in all probability, for the oense under the Devils Article (Section 63 of Army Act) against a Lt General with 30+ years of distinguished service! Remember that he has been recalled from retirement for this legal process! After protracted appeals, in all probability, it all will be set aside. The recent spate of widely publicized trials by court-martial of high ranking Generals have hopefully focused national attention on military justice. There is a compelling reason to put the Court Martial on trial before we put many more generals on court martial for what sometimes is called the Devils Article(Army Act Section 63) that authorizes punishment of military personnel on grounds that are less specic as to the particulars of the offense and as to the punishment, compared to most crimes in modern West European law. Let us remember what US Supreme court as stated in OCallahan v. Parker emphasized: Courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law. Should we not accept the legal principles of stare desis and jurisprudence constante as established in the Human Rights Courts quoted. You be the judge.

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