AFSPA, Military and Human Rights

AFSPA, Military and Human Rights

Indian Military's action  of preventing AFSPA  being lifted from selected parts of Kashmir taken in anticipation of imminent and dangerous threat from the citizens of India in Kashmir  is much worse than the possible Kashmiri action to fight military's  resistance  to lift imposition of AFSPA!

For the Kashmiri, it is a  reality it has lived with and will continue to live with for foreseeable future  even when the political will of the citizen expressed through their political leaders wants to lift AFSPA! How sad?

Why AFSPA should not be lifted? Because the military will have to face number of court cases in which it will have to defend itself!
Isn't that too much of a burden? So, let us prevent Kashmiris to enjoy the minimum of Human Rights protection which all humans on earth are entitled!

Non-international armed conflict is characterised under international law by the twin criteria of “the protracted extent of the armed violence [intensity criterion] and the extent of organisation of the parties involved [organisation criterion]”

Most armed groups, with the exception of the more marginal ones, have now ceased hostilities in the valley.  The remaining ones are reportedly mostly involved in armed conflict with the nation which Army is at full liberty to respond to. It follows that both the intensity and organisation criteria relating to the existence of the armed conflict are not fulfilled, and the  prevailing situation is better characterised as “lawlessness” rather than an active armed conflict, which is actually the province of the Police unless the political authority determines that it is beyond the capability of the local police.

The provision of the AFSP Act containing the authorisation to use lethal force and even shoot to kill  is incompatible with article 6 of the ICCPR which provides the following: Every human being has the inherent right to life. No one shall be arbitrarily deprived of his [or her] life.

The provision of the AFSP Act containing the authorisation to arrest persons is incompatible with article 9 of the ICCPR which provides the following:
“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his [or her] liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his [or her] arrest and shall be promptly informed of any charges against him [or her].
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release ...
4. Anyone who is deprived of his [or her] liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his [or her] detention and order his [or her] release if the detention is not lawful.

The debate on AFSPA is becoming distracted by who is more important or who has more power to impose the will on the situation, Army or the Chief Minister. It should ask simple questions and issues examined with out passion and with humility. A citizen to be reined in as a responsible member of the society requires:

1. strict criminal laws passed 2. strict enforcement of these criminal laws. 3. Fear that if laws are violated, he will be caught in all probability, prosecuted, and punished and sentenced to jail term or send to the gallows.

A soldier provided with a gun and made to operate in a troubled region can be reined in as responsible member of the society even if:

1. He is given full power, authority and power of law to enforce his will on the civilian.

2. Summary power to execute if necessary according his sole judgement on the spot.

3. No criminal law which he himself imposes on the subjects applies to him as he can not be charged with any infringement.

4. There is no fear that he will be caught, prosecuted, punished or sentenced to jail or sent to to the gallows.

5. In fact he is assured that he is immune from all laws and all fear of prosecution and sentencing.

6. He is the sole judge of his actions and there should no judicial review!

All I am saying is all humans (civilian citizen or men in uniform) behave almost similarly under similar circumstances. Do you have wild objections to such conclusions? Aristoltle's oft quoted words represent the best of truism: Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.

 Who should decide whether the area is disturbed? The civil head of administration or the man in uniform who should get full immunity under AFSPA? Or the Unified Command? It is total lack of understanding of human nature and how power operates and how checks and balances should provide justice and fairness to the citizen. AFSPA is giving free hand to kill with no judicial review.

AFSPA does not give power to soldier for just for self defence or minimum use of force for bringing order but give open license  to use excessive use of force and no judicial review whether excessive use of force was used or not. You can expect a soldier's own comrades to suppress transgression  or defend him with silence or false witness or the camaraderie of the Army fail to charge him with crime in the military courts martial. Should the civilian have  a right to report violation of law against the soldier and expect due process is the question?  Law enforcer can commit crime while summarily disposing on the spot one man verdict and execution but the civilian should have no legal due process, seems little strange!

It is never the case that the soldier should not have freedom to use the minimum force required to make the citizen comply with military action to tackle  immediate danger and grave law and order situation. You do not require AFSPA for that. You do not require magistrate's signature under aid to civil authority for that. Is this so difficult to get?

Issues to be decided are :

1. Can the state Chief Minister on the advise of the Police Chief and Chief of CRPF declare the law and order situation in parts of his state is safe enough for lifting of AFSPA containing the authorisation to use lethal force on the citizen living in some parts of the state?
2. Can CM, as people's representative of their political will, determine that the Indian citizens residing in selected places in his state enjoy  human rights (which every citizen of the world ought to enjoy ) which AFSPA denies to these citizens?
3. Can the Military deny the prerogative of the political leadership to decide what Human Rights these Indian citizen residing in his state should enjoy?
4. Are total suspension of all human rights and imposition of state wide AFSPA with no exemption the  minimal pre-requisite condition needed for the military to remain deployed in the state?
   
5. Is it the prerogative of the Unified Command to determine whether the Indian citizen living in parts of the state should enjoy minimal Human Rights and suspension of AFSPA?
6. Is the Unified Command entitled to rights and privileges such unified commands enjoy in case of open international conflict?
7. Does the name Unified Command conjure up the image of grand war theatre where  an international conflict exist or is it just an aggregation "law enforcement" agencies at the sate level in which local Army commander is also represented?
8. Can such a collection of "law enforcement" agencies determine that the citizen of the state should have no protection of Fundamental Rights  under the constitution of India  including fundamental and Human Rights
9. Is the burden that  military will have to face  a number of court cases in which it will have to defend itself reason enough to deny fundamental and Human Rights to  the Indian citizen residing in the state as determined by the elected political representative of the state  and its Police Chief?
10. Should the military have sole voice to determine where its services should be called for  law enforcement in the State  and whether the Indian citizen of the State should be denied fundamental and Human Rights and  the extend and  duration  for which these remain suspended?( AFSPA means denial of Human Rights Period.)
    

These are the questions that need to be answered.

The words of Churchill in the British Parliament during the debate on the Jallianwallah Bag massacre is relevant:" I have heard the hon. Member for Hull (Lieut.-Commander Kenworthy) speak on this subject. His doctrine and his policy is to support and palliate every form of terrorism as long as it is the terrorism of revolutionaries against the forces of law, loyalty and order. Governments who have seized upon power by violence and by usurpation have often resorted to terrorism in their desperate efforts to keep what they have stolen, but the august and venerable structure of the British Empire, where lawful authority descends from hand to hand and generation after generation, does not need such aid. Such ideas are absolutely foreign to the British way of doing things."

Court Martial and "A Few Good Men"

For those who have not seen the picture  earlier

The lengthy cross-examination was written by the man who brought you The West Wing, Aaron Sorkin.  Do not attempt this in a court of law without a screenwriter by your side.

And just in case you think you're uniquely insecure, the brilliant Mr. Sorkin, who added, "you can't handle the truth" to the small pantheon of justifiably immortal movie lines has this to say about the process of writing:

"I love writing but hate starting. The page is awfully white and it says, 'You may have fooled some of the people some of the time but those days are over, giftless. I'm not your agent and I'm not your mommy, I'm a white piece of paper, you wanna dance with me?' and I really, really don't. I'll go peaceable-like."

THE SET UP

KAFFEE Colonel, when you learned of Santiago's letter to the NIS, you had a meeting with your two senior officers, is that right?

JESSEP Yes.

KAFFEE The Executive Officer, Lt. Jonathan Kendrick, and the Company Commander, Captain Matthew Markinson.

JESSEP Yes.

KAFFEE Yes sir. Colonel, at the time of this meeting, you gave Lt. Kendrick an order, is that right?

JESSEP I told Kendrick to tell his men that Santiago wasn't to be touched.

KAFFEE And did you give an order to Captain Markinson as well?

JESSEP I ordered Markinscn to have Santiago transferred off the base immediately.

KAFFEE Why?

JESSEP I felt that his life might be in danger once word of the letter got out.

KAFFEE Grave danger?

JESSEP Is there another kind?

KAFFEE holds up a document from his table.

KAFFEE We have the transfer order that you and Markinson co-signed, ordering that Santiago be lifted on a flight leaving Guantanamo at six the next morning. Was that the first flight off the base?

JESSEP The six a.m. flight was the first flight off the base.

THE SEEMINGLY INNOCENT LINE OF QUESTIONING SET-UP

KAFFEE gets a document from his table.

KAFFEE (continuing) After Dawson and Downey's arrest on the night of the sixth, Santiago's barracks room was sealed off and its contents inventoried. (reading) Pairs of camouflage pants, 6 camouflage shirts, 2 pairs of boots, 1 pair of brown shoes, 1 pair of tennis shoes, 8 khaki tee- shirts, 2 belts, 1 sweater--

ROSS Please the Court, is there a question anywhere in our future?

RANDOLPH Lt. Kaffee, I have to--

KAFFEE I'm wondering why Santiago wasn't packed.

THE EXTENDED MONOLOGUE-QUESTION THAT EXISTS ONLY IN MOVIES

KAFFEE (continuing) I'll tell you what, we'll get back to that one in a minute.

KAFFEE holding up a stack of documents.

KAFFEE Your honor, these are the telephone records from GITMO for August 6th. And these are 14 letters that Santiago wrote in nine months requesting, in fact begging, for a transfer.

(to JESSEP) Upon hearing the news that he was finally getting his transfer, Santiago was so excited, that do you know how many people he called? Zero. Nobody. Not one call to his parents saying he was coming home. Not one call to a friend saying can you pick me up at the airport. He was asleep in his bed at midnight, and according to you he was getting on a plane in six hours, yet everything he owned was hanging neatly in his closet and folded neatly in his footlocker. You were leaving for one day and you packed a bag and made three phone calls. Santiago was leaving for the rest of his life, and he hadn't called a soul and he hadn't packed a thing. Can you explain that? The fact is there was no transfer order. Santiago wasn't going anywhere, isn't that right, Colonel.

ROSS Object. Your Honor, it's obvious that Lt. Kaffee's intention this morning is to smear a high ranking marine officer in the desperate hope that the mere appearance of impropriety will win him points with the jury.

ROSS (continuing) It's my recommendation, sir, that Lt. Kaffee receive an official reprimand from the bench, and that the witness be excused with the Court's deepest apologies.

RANDOLPH (pause) Overruled.

KAFFEE (beat) Colonel? Jessep's smiling ... ... and now he can't help but let out a short laugh.

KAFFEE (continuing) Is this funny, sir?

JESSEP No. It's not. It's tragic.

KAFFEE Do you have an answer?

JESSEP Absolutely. My answer is I don't have the first damn clue. Maybe he was an early morning riser and he liked to pack in the nq. And maybe he didn't have any friends. I'm an educated man, but I'm afraid I can't speak intelligently about the travel habits of William Santiago. What I do know is that he was set to leave the base at 0600. Now are these really the questions I was called here to answer? Phone calls and footlockers? Please tell me you've got something more, Lieutenant. Please tell me there's an ace up your sleeve. These two marines are on trial for their lives. Please tell me their lawyer hasn't pinned their hopes to a phone bill. (beat) Do you have any other questions for me, counselor?

CIRCLING THE EVIDENTIARY WAGONS

 KAFFEE Colonel, the six a.m. flight, was the first one off the base?

JESSEP Yes.

KAFFEE There wasn't a flight that left seven hours earlier and landed at Andrews Airforce Base at 2 a.m.?

RANDOLPH Lieutenant, I think we've covered this, haven't we?

KAFFEE gets the two log books from his table.

KAFFEE Your Honor, these are the Tower Chief's Logs for both Guantanamo Bay and Andrews Airforce Base. The Guantanamo log lists no flight that left at eleven p.m., and the Andrews log lists no flight that landed at 2 a.m. I'd like to admit them as Defense Exhibits "A" and "B".

RANDOLPH I don't understand. You're admitting evidence of a flight that never existed?

KAFFEE We believe it did, sir. (glancing at the paper, then motioning to the AIRMEN) Defense'll be calling Airman Cecil O'Malley and Airman Anthony Perez. They were working the ground crew at Andrews at two a.m. on the seventh.

ROSS Your Honor, these men weren't on the list. Rebuttal witnesses, Your Honor, called specifically to refute testimony offered under direct examination. 

RANDOLPH I'll allow the witnesses.

JESSEP This is ridiculous.

KAFFEE Colonel, a moment ago--

CLOSING ALL OF THE DOORS OF POSSIBLE ESCAPE FOR THE WITNESS

KAFFEE  A moment ago said that you ordered Kendrick to order his men not to touch Santiago.

JESSEP That's right.

KAFFEE And Kendrick was clear on what you wanted?

JESSEP Crystal.

KAFFEE Any chance Kendrick ignored the order?

JESSEP Ignored the order?

KAFFEE Any chance he just forgot about it?

JESSEP No.

KAFFEE Any chance Kendrick left your office and said, "The 'old man's wrong"?

JESSEP No.

KAFFEE When Kendrick spoke to the platoon and ordered them not to touch Santiago, any chance they ignored him?

JESSEP Have you ever spent time in an infantry unit, son?

KAFFEE No sir.

JESSEP Ever served in a forward area?

KAFFEE No sir.

JESSEP Ever put your life in another man's hands, ask him to put his life in yours?

KAFFEE No sir.

JESSEP We follow orders, son. We follow orders or people die. It's that simple. Are we clear?

KAFFEE Yes sir.

JESSEP Are we clear?

KAFFEE Crystal.

AND IF YOU'VE CLOSED ALL THE DOORS, ASKING A QUESTION YOU DON'T KNOW THE ANSWER TO IS NOT EVEN BRAVE; IT'S EASY 

KAFFEE Colonel, I have just one more question before I call Airman O'Malley and Airman Perez: If you gave an order that Santiago wasn't to be touched, and your orders are always followed, then why would he be in danger, why would it be necessary to transfer him off the base?

And JESSEP has no answer. Nothing. He sits there, and for the first time, seems to be lost.

JESSEP Private Santiago was a sub-standard marine. He was being transferred off the base because--

KAFFEE But that's not what you said. You said he was being transferred because he was in grave danger.

JESSEP (pause) Yes. That's correct, but--

KAFFEE You said, "He was in danger". I said, "Grave danger". You said--

JESSEP Yes, I recall what--

KAFFEE I can have the Court Reporter read back your--

JESSEP I know what I said. I don't need it read back to me like I'm a damn--

KAFFEE Then why the two orders? (beat) Colonel? (beat) Why did you--

USING THE WITNESS' "ALWAYS" AND "NEVER" STATEMENTS AGAINST HIM

JESSEP Sometimes men take matters into their own hands.

KAFFEE No sir. You made it clear just a moment ago that your men never take matters into their own hands. Your men follow orders or people die. So Santiago shouldn't have been in any dangor at all, should he have, Colonel?

JESSEP You little bastard.

ROSS Your Honor, I have to ask for a recess to--

KAFFEE I'd like an answer to the question, Judge.

RANDOLPH The Court'll wait for answer.

KAFFEE If Kendrick told his men that Santiago wasn't to be touched, then why did he have to be transferred?

Jessep is looking at O'KALLEY and PEREZ.

KAFFEE (continuing) Colonel?

JESSEP says nothing.

KAFFEE (continuing) Kendrick ordered the code red, didn't he? Because that's what you told Kendrick to do.

ROSS Object!

RANDOLPH Counsel.

KAFFEE And when it went bad, you cut these guys loose.

ROSS Your Honor--

RANDOLPH That'll be all, counsel.

KAFFEE You had Markinson sign a phony transfer order--

ROSS Judge--

KAFFEE You doctored the log books.

ROSS Damnit Kaffee!!

KAFFEE I'll ask for the forth time. You ordered--

THE WITNESS GOES FOR THE BAIT IN THE WAY THEY DO ONLY IN THE MOVIES

JESSEP You want answers?

KAFFEE I think I'm entitled to them.

JESSEP You want answers?!

KAFFEE I want the truth.

THE IMMORTAL MOVIE LINE

JESSEP You can't handle the truth!

And nobody moves.

JESSEP (continuing) Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the marines. You have that luxury. You have the luxury of not knowing what I know: That Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. (beat) You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You me there (boasting) We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline. (beat) I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it. I'd prefer you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to.

KAFFEE (quietly) Did you order the code red?

JESSEP (beat) I did the job you sent me to do.

KAFFEE Did you order the code red?

JESSEP (pause) You're goddamn right I did.

KAFFEE Please the court, I suggest the jury be dismissed so that we can move to an immediate Article 39a Session. The witness has rights.
____________________________________________________________________________________

Hope you do enjoy the video  "A Few Good Men".. The convenor of the Court Martial is actually the one who committed  the criminal offence but he was using the system to fix two lower level  minions not to talk of  causing the  the death of a Lt Colonel and a marine while all the time talking of "saving lives"! A Few Good Men is a 1992 drama film directed by Rob Reiner and starring Tom Cruise, Jack Nicholson, and Demi Moore. It was based on a play of the same name by Aaron Sorkin. A courtroom drama, the film revolves around the trial of two US Marines charged with the murder of a fellow Marine and the tribulations of their lawyer as he prepares a case to defend his clients in the court martial.
Do stop to think about the real points these videos drive home.

Time to put the Court Martial on Trial

Chandra CP Nath

nath@computer.org

June 21, 2011

Strident cacophony in the Indian media about arresting corruption in the Indian Defense forces has sent Indian Army scrambling for action. Where does the cacophony of the media leave Indian 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 that of United Kingdom as these originated from the single common source of Roman laws. 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 that of United Kingdom 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 Avdesh Prakash 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 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 RM and there was not even a whimper!

Is the military justice system as it exists in India to day violative of 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 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 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 in 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 judgment 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 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 offense 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, 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 offenses 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, drastic reforms may, hopefully, be forthcoming.

__________________________________

Time to Put Military Court Martial on Trial

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 -