Devils Article: Conduct un-becoming & Violation of Good Order and Military Discipline

Devils Article: Conduct un-becoming & Violation
of Good Order and Military Discipline
Chandra CP Nath
June 20, 2011

Lt General P K Rath was recently punished severely for giving securityclearance for a school adjacent to 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? Are these questions too sophisticated to be asked from the prosecution in a General Court Martial where the judges themselves are ntrained in law and not capable of asking such questions.
”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.” writes European Human Rights Court (in Findlay v. United Kingom in 1997) while declaring that the Army Courts Martial of UK are violative of Human Rights.

Further, European Human Rights Court expressed the unanimous opinion in this particular case about the UK Court Martial, 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.
Remember Indian Court Martial which are modeled on the lines of UK Court
Martial are no different in this respect and it is just a matter of time Indian
Court Martial will also be declared violative of Human Rights of the accused.
Lt General Rath, just because he was in uniform could be punished for an
error of judgement in a purely administrative function. Is this the way we treat
India’s distinguished soldiers who have served with distinction for more than
30+ years? Why would any one like to join the military if young men realize
that the society is thankless for the service these men in uniform provided in a
life time career?
I am not saying that the GCM should be lenient to people who have really
committed despicable crimes against society. Is it a despicable crime against
society to want a school adjacent to the military area? The fact that the school
is not part of Mayo College is not reason enough to declare that the security
clearance is defective. Have the prosecution proved the immense security danger
to Indian military establishment from this particular school as against Mayo
College? Did the judges of the GCM ask the prosecution this question? Is this
a military offence to provide security clearance to this particular school?
In a scathing critical remark, US Supreme court stated in O’Callahan v.
Parker:
[T]he catch all Article 134, 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? A civilian trial 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.
The corresponding Section 63 of the Army Act or its equivalent has been the
weapon of choice to punish men in uniform who just could not be charged with
any other offence. This catch all offence has been a subject of research in the
military law all over the western world. ”Conduct unbecoming”, the favourite
title for this offence in the legal research, is more than a cosmetic feature of
military justice. This crime has put military law to work in many other armies
in the world and that too for centuries.
The practice of falling back to offence under the ”Devils Article”: Army Act Section 63 when you can not 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 which was originally derived directly from Roman 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.
As recently stated by eminent jurists:
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.- Glasser, Justice and Captain Levy, Columbia Forum. The reason the Military justice system is under constant attack from every quarter in the western society and there is constant attempt to improve it or at least doubt its ability to provide justice is a very positive thing. The reason why it is not under attack in India is tragic because it smacks of certain insensitivity to the fairness of the system to one who has volunteered for service with the military and his willingness, if and when necessary to make the supreme sacrifice in call of duty for the nation. Even the courts in India including the Supreme court have maintained a hands off stand much to the detriment of the consumer of the military justice system, i.e. the man in uniform.
Lord Chief Justice Hale wrote that trial by military courts may not be permitted in time of peace, when the King’s Courts are open for all Persons to receive Justice according to the Laws of the Land.” Hale,CJ commented that military justice is
not a true system of law at all, but is ”something indulged, rather than allowed as a law” because of the need for order and discipline in the army. Sir William Blackstone agreed.
Is retributive justice the goal of a civil society that values liberties and human rights? Should a liberal democratic society like India go back to ancient societies where such values were denied to its soldiers? Should those men in uniform who defend freedoms of such a liberal democratic society be themselves deprived the fruits of such values? These are questions that should engage any intelligent citizen in general and jurists in particular.
”This crime (conduct un-becoming) has put military law to work assuaging fears that an increasingly heterogeneous military is in danger of un-becoming itself. Its history reveals the unstable hierarchies that make the military intelligible not just to outsiders, but to officers - and gentlemen- themselves” concludes Hillman in her article titled: ”Gentlemen Under Fire: The US Military and ”Conduct Unbecoming” in Law and Inequality, A journal of Theory and Practice.

Legislators and jurists can make bad laws. Society changes and the laws lag behind. This is nothing new. So, worthwhile jurists must be concerned not just with what the law is, but, most importantly, with what it ought to become. The best way to conclude this article is by quoting Charles M Schiesser and Daniel H. Benson in their milestone article titled ”Modern Military Justice”: In the long run, the patient’s health will be more improved by proper  diagnosis and treatment, than by either a refusal to admit the illness,  or a desire for the patient’s demise.

Here is the pdf of the above:






Devils Article: Conduct Unbecoming -