By Chandra C P Nath
Strident cacophony in the Indian media about arresting corruption in the Indian Defence forces has sent Indian Army scrambling for action. Where does the cacophony of the media leave Indian Military Justice system is a question I 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 violates 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 Indian Chief of Army Staff violate the law by trying to shield his Principal Staff Officer? If the original decision not to prosecute Lt General Avdhesh Prakash was based on sound professional judgement, why did he buckle and order a Court Martial? Are matters of honour of distinguished soldiers decided in such a 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.
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 Raksha Mantri and there was not even a whimper!
Does the military justice system as it exists in India to day violate Human Rights? The case of Findlay v. United Kingdom decided unanimously by the European Court of Human Rights on February 25, 1997 that courts martial violate 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 some one raises human rights violation of all courts martial.
Lt General P K Rath was punished severely for giving security clearance for a school near the military area. Did the prosecution prove a culpable mental state where he committed the crime knowingly, intentionally, recklessly and/or negligently or was it just an error of judgement in an administrative function?
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 judgement 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 judgement 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, 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? Didn’t the Chief breach a known duty to prosecute?
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 advocate’s advice on sentencing was not disclosed, that no reasons were given for the decisions taken by the court-martial, the conforming and reviewing officers, and that the post-hearing reviews were essentially administrative in nature and conducted in private. European Human Rights Court (in Findlay v. UK in 1997) expressed the unanimous opinion that there had been a violation of Article 6 para 1 of the Convention (art. 6-1). All the officers appointed to the court were directly subordinate to the convening officer who also performed the role of prosecuting authority. The lack of 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).
The recent spate of widely publicized trials by court-martial of high ranking Generals have hopefully focused national attention on military justice.
Let us remember what US Supreme court as stated in O’Callahan v. Parker that military trial of soldiers committing civilian offences should always be viewed with suspicion. “There is substantive disapproval of the general use of military courts for trial of ordinary crimes. 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?
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 society. If the Indian Parliament is convinced that the military justice system is bereft of the essence of justice in terms of human rights, drastic reforms may, hopefully, be forthcoming.
Chandra C P Nath served in the Indian Army from 1966 to 88. He currently works in USA in the intersection of information security, privacy and law. He can be reached at firstname.lastname@example.org .