Time To Put The Court Martial On Trial
Strident 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 first 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 Principal Staff Officer? 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 flimsy 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 Indian Defence Minister 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 Indian Defence Minister in attempting to influence a strictly judicial function of the Chief be ignored while courts martial punish Lt Gen PK Rath for an error of judgment in a purely administrative function or for that matter Lt Gen Avadesh Prakash for attempting to influence a purely administrative function of a field 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? Article 311 of the Constitution of India protects bureaucracy but not men in uniform! A Naval Chief was dismissed by the Indian Defence Minister and there was not even a whimper! How sad?
Is the military justice system as it exists in India today violative of human rights? The case of Findlay vs 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 effect on courts martial in all the countries that derived its military laws from the English laws. The resulting changes and reforms forced on UK’s system through the Armed Forces Act 1996 and 2006, prove the point that it is just a matter of time that someone 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 definitely 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 its 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 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.
RECENT “SCAMS” & MILITARY’S REPUTATION FACTS & FICTION
One would think that it is the duty of every citizen to influence every public figure whether the President, head of agencies, ministers/ secretaries of the government and other important officials by public debate, logic and reason. Should the attempt to influence the government official in making a decision one way or another attract criminal action by the government?
Each thinking person should influence others with cogent reasoning. That is not an offence. That is a duty. Influencing public opinion and through that official action is the essence of democracy! Knowing that the public is interested in government, the public knows what it wants, the public has the ability to express what it wants and the public’s will would be enacted into law, into policy and into programmes and projects and into actions the government officials take. Public’s opinions are intended to influence the record of facts, influence a belief or assert a course of action. What media does every day is all of this. Then to bay for blood of a General who tried to influence the decisions of another General shows a confusion on the mind of the media.
The media in India is crying for the head of Lt General Avadesh Prakash for influencing the decision of another official Lt General PK Rath for giving security clearance for a school near a military area, Sukna in West Bengal. Lt General Avadesh Prakash will face a court martial shortly. This seems quite bizarre because, we will have to punish every newspaper columnist, editor, radio and TV media person in influencing the decisions of President, PM, cabinet ministers, parliamentarians with their reasoning in their pieces. A democracy thrives when people can influence public and officials’ thinking by cogent reasoning.
The very foundations of democracy (of influencing public opinion and official thinking and action) cannot be made a cognizable offence when it comes to an official trying to influence another official in the government.
Is court marshaling a General for a duty he performed right? If yes, should we not attempt to prosecute every member of the media for influencing all the public officials one way or another? Has media lost its ability to think in demanding the blood of a General? Isn’t media doing exactly what it accuses the General of doing: influencing the decisions of a public official?
Also, the military establishment has failed the military, its personnel and the country much more than the accused Generals in Sukhna case or the Adarsh case and even the media who has indulged in their pet game more out of ignorance than malice! Military establishment surely knew the truth in both the cases.
Myths & Realities of Sukhna Land Scam
Some of the myths of the case should be clarified lest media concludes whatever it concludes and thus clouds the judgment of the ordinary citizen. These are:
- Is it a land scam? There is no land scam. Land scam is when public land is given away for free or inadequate price. How much land has been given away? Zero square feet! How much has the state lost? Zero rupees. How much of public land is under the scanner? Zero acres. Then why is it called a land scam? This is the myth Army should have exploded.
- Security clearance was given without permission of higher headquarters. Is XXXIII Corps commander authorised to give security clearance? Yes, he is. Is he obliged to ask Eastern Army Commander’s permission before giving NOC? No. No regulation says that the Corps Commander is obliged to take the Eastern Army Commander’s permission before providing NOC.
- Corps Commander failed to report the NOC to higher authorities. Is Corps Commander obliged to report every NOC given by him and every MOU signed by his headquarters to the Eastern Army Commander? No. If Eastern Army Commander wanted this specially, has he issued any instruction to this effect? None that has been publicised. If all the Corps Commanders of the Indian Army were to be court-martialled for not reporting every administrative decision taken by them to the Army Commander, every Corps Commander would be found guilty and would need to be punished under Army Act Section 63. That would be not just a travesty of justice but a comic relief to the sordid affairs!
- Corps Commander failed to verify the authenticity of claim of the society that they will be establishing a Mayo College branch at Sukhna. Is it the responsibility of the Corps Commander to verify the authenticity or make a value judgment of the organisation seeking the clearance? Whether this particular Education Society or the real Mayo College asked for NOC, the consideration on the basis of which the security clearance will be provided will not change. Corps Commander is not expected to assess the quality of the educational institution going to be established by the society seeking NOC. If he did so, he will be treading on slippery slope.
- Corps Commander failed to withhold the NOC from security perspective. If the Corps Commander is obligated to deny the NOC as part of his duty, then why go through the assessment? Can he be blamed for going through the exercise of applying his mind in judging whether the school posed a grave security threat to the formation of HQ (of which he is the Head) located in Sukhna? No. Has the prosecution proved the grave danger to the security of the headquarters by the establishment of the school by this particular educational society? Not that anyone is aware of from the media reports!
Myths & Realities of Adarsh Scam
- Is Adarsh a land scam? There is no land scam. This point has been elaborated in details earlier.
- Senior officers of the Army and Navy are worse than land sharks like the land mafia of Mumbai! The reality is that the officers only joined a society for construction of flats. There were junior officers and non-officers who were members of the society. No law of the land prevent Army or Navy personnel from becoming members of a Housing society established under the Registration of Society Act.
- Security clearance was given without permission of higher Head Quarters. The case was expedited because of the conflict of interest of some of the general officers. So, essentially, it was a case of public officials not declaring their conflict of interest and sacrificing the public interest for private gain. This may need inquisition.
- It was ‘Kargil for Prot’ scam and insisted that Kargil-widows had been swindled out of their entitlement by devious General officers. The reality was that Army has nothing to do with naming it for Kargil widows. It was purely a private housing society hoodwinking State Government by attributing it for Kargil widows to facilitate movement of approvals faster through its labyrinth. What a private society does for hoodwinking the civil society cannot be attributable to the Army or Navy. The establishment failed to explode the myth.
- Senior officers of the Army and the Navy got preferential allotment. Reality is that it is purely for the society to answer the charge that they broke the Memorandum of Association and not for the Army or Navy.
- C of I was ordered to satisfy the over enthusiasm of the military to punish the “culprits”! It was a simple case of some senior officers sacrificing the public interest for private interest and if anything boils down to failure to declare conflicts of interest.
Military’s Propensity to Charge its members with the “Devil’s Article”
The practice of falling back to offence under the “Devil’s Article” (Army Act Section 63 when you cannot charge the accused with any other military offence under the Army Act) is a very old one with lot of history behind it not just here in India but all other armies where the laws were derived from English laws.
“The setting of boundaries for acceptable officer conduct, whether in grave cases that might lead to a capital court martial or in relative minor incidents that could result in an Article 133 violation, reveals the military’s efforts to set itself apart from, and even above, the civil society and Constitution it defends,” writes Elizabeth L Hillman in Law and Inequality, A journal of Theory and Practice.
The notion that the threat of punishment will deter criminal conduct is based on the principle that human beings are rational. In practice, criminals are either impulsive (i.e., not rational) or believe that they will not be caught by the police. Therefore, the threat of punishment does not deter criminal conduct, as one is reminded every day by reading reports of journalists. Does that mean that no commander should provide NOC or that no Service Personnel should register in civil societies for allotment of flats? There is an element of irrationality or madness on the part of establishment if you take an objective view of these two cases.
I am reminded of what General Stanley Mc-Chrystal said in the TED talk he delivered recently: “Leaders may let you fail, but not let you be a failure.” Did Gen VK Singh show exemplary qualities of leadership in dealing with his Corps Commander Lt Gen PK Rath’s failure to report a purely administrative action he had taken? While his failure in respect of his behavior with Lt Gen A Prakash can be dismissed perhaps because of his rivalry with him for the rat race to the Chief’s position, the same could not be the case in dealing with one of his own Corps Commanders. From this point of view alone, there seems to be a failure of leadership that grievously affected the military’s reputation, no doubt. (CCPN)
Lt General PK Rath was punished severely for giving security clearance for a school in the military area. Giving security clearance was a part of his official duty. Or else, why would anyone seek such certificate 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 offence?
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 an alleged crime committed knowingly, intentionally and recklessly, in the field of military operations in the face of the enemy. He allegedly makes an official record, knowing that it is false in a material respect; he knows or has reasonable cause to believe that the record was official. He was not even charged with an offence 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 difference was, one was placed as the accused in front of a court martial and the other was not. So, everything 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? Didn’t the Chief breach a known duty to prosecute? What do you call this, military justice?
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’s advice on sentencing was not disclosed, that no reasons were given for the decisions taken by the court martial, the confirming and reviewing officers, and that the post-hearing reviews were essentially administrative in nature and conducted in private. European Human Rights Court (in Findlay v. UK in 1997) expressed the unanimous opinion that there had been a violation of Article 6 para 1 of the Convention (art. 6-1). All the officers appointed to the court were directly subordinate to the convening officer who also performed the role of prosecuting authority. The lack of legal qualification or experience in the officers making the decisions either at the court martial or review stages made it impossible for them to act in an independent or impartial manner.
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 King’s 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 today? For an offence committed in Delhi of influencing a purely administrative decision making of some other officer 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 offence under the “Devil’s 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 spates of widely publicised 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 Devil’s Article”(Army Act Section 63) that authorises punishment of military personnel on grounds that are less specific as to the particulars of the offence and as to the punishment, compared to most crimes in modern West European law.
Let us remember what US Supreme Court as stated in O’Callahan v. Parker emphasised: “Courts martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.”
By Chandra CP Nath