DEFENCE NOTES                                

1 May, 2006, New Delhi

Attack From Within

ALARMING TREND IN ARMED FORCES

By B K Mathur

Once an envy of militarily advanced countries for their valour and discipline, India’s armed forces personnel are at their nadir today. Increasing reports of their acts of indiscipline and corruption, like war-room leaks, espionage cases, fake encounters and continuing shortage of officers and lack of quality in-take make one sit-up -- and perturbed about the alarming trend in Defence Services. During the 1950s and the 60s, could one ever think of military men increasingly challenging their own General Court Martial (GCM) decisions in civil courts with their differences with their controllers, commanders and systems to break India’s established  military traditions.

How frustrating is a report that over 10,000 serving and retired defence personnel have approached different civil courts, challenging actions against them. A senior officer has been quoted by the Times of India as stating that “it’s now almost become second nature of all officers denied promotions to file statutory complaint with the Defence Ministry. If that does not work, many approach courts, unlike (in) the past when it was considered bad form.” Wonder why the military personnel, at times senior commanders, increasingly feel hurt by the judgement of their seniors and their own courts. Importantly, don’t those who take their complaints to civil courts demoralize the Armed Forces?

The men in uniform have to be disciplined with a firm code of conduct and a fool-proof command and control. They need to be stopped from getting involved in a rut of civil courts and in an administration where respect for authority is fast diminishing.  At the same time, it must be ensured that injustice is NOT meted out to them by the seniors in command. The armymen are now educated people, unlike the illiterate jawans in the British Indian Army, and are gradually becoming conscious about their rights. They have thus begun to find umpteen lacunae in the military justice system. Naturally, therefore, they rush to seek justice from civil courts, at the cost of military ethos the world over.

The growing trend is undoubtedly affecting the discipline of the forces. But the remedy does not lie in doing away with the present court martial system; it lies in removing the lacunae. There are so many cases which could be quoted when senior commanders in field formations have punished their juniors on flimsy grounds. In such circumstances the procedure of the GCM is required to be changed. As the, then, Chief of Army Staff and later a Member of Parliament, Gen. Shankar Roychowdhary, stated in 1996 at a conference in New Delhi of Deputy Advocate Generals, the Army Act and Rules should be reviewed. In fact, this needs to be done time and again as military environments change.

Before considering the Army Act and the Rules, one needs to know the existing procedures of the GCM. The Court Martial proceedings are carried out in three stages. One, a “Court of Inquiry” is undertaken by an officer deputed by a local commander. Following this, a “Summary of Evidence” is prepared by the same presiding officer and, finally, Court Martial proceedings start on the basis of the Summary of Evidence, prepared by one who is nominated for the purpose by the local commander or even a Corps Commander. What it amounts to is that the whole exercise can be “rigged” by vested interest. If the local commander is unhappy with his junior for whatever personal reasons, he can manipulate punishment for him and spoil his career, which only the civil court can save.

The GCM rules and procedures in the interest of military discipline are today only things of the past. This is indicated by numerous judgements of civil courts when militarymen have gone in appeal against the GCM proceedings and findings. Actually, the military justice system is a legacy of the Raj with, of course, a continuous process of amendments to the original Indian Army Act of 1912. A Department was established in 1841 with the appointment of three JAGs (Judge Advocates General). The native armies merged into one on January 1, 1885, leading to the centralisation of the Army judicial system. A Judge Advocate General was accordingly appointed for the whole Army. That set-up continues till today.

In 1947, the Department comprised a meager 27 officers, a legally qualified cadre headed by a Brigadier.  Today this strength has swelled to about 300 officers, headed by a Major- General. The JAG carried out about a decade ago a thorough reappraisal of various provisions of the Army Act 1950, Army Rules 1954 and the regulations for the Army in 1987 with a view to identifying the areas requiring improvements. As many as 22 Sections of the Army Act were amended through a Parliamentary legislation, called the Army (Amendment) Act, which came into force from September 6, 1992. Some more amendments are now under the active consideration of the Government.

The JAG Corps is also striving to uphold the traditions of the military justice system. To begin with, the 1937 edition of the manual of the Indian Military Laws has been completely revised. A bilingual new manual of military laws has been published in Hindi and English in three volumes. The regulation of the Army Act 1962 has also undergone a thorough revision by a special cell that comprised officers of the JAG Corps under the supervision of the JAG itself. He has also launched in 1990 a new approach for the disposal of the military disciplinary cases by providing and extending legal advice at the grassroots, so that commanders in field formations have prompt access to legal aid in times of their doubts and their difficulties while finalizing the disciplinary cases.

All very fine. But the real flaw that continues to exist in the GCMs’ procedures has not so far been removed. At present the GCM is conducted by a “Bench” comprising all military officers and headed by a senior officer (Brigadier for JCOs and ORs and Major-General for Officers) can be influenced by the concerned Corps Commander or even the Army Commander (both Lt.-Generals) and even the General, the Army Chief, as happened, remember, in the court martial cases of some 14 Corps officers. After all, don’t forget India’s armed forces are no different. These, too, are deeply steeped in the “civil pollution” of a corrupt and irresponsible society.

What, then, needs to be done? Civil courts need not be bothered for deciding matters and GCM decisions. The best would be to set up military tribunals, comprising a mix of military-civil legal persons. Such tribunals have to be free of local commanders’ influence. The Supreme Court has already recommended the constitution of such tribunals. The Government too has been talking about them for a long time. The idea is to keep the institution of JAG and Court Martials alive with required amendments. Appeals against its decisions as well as complaints against administrative decisions should be handled by the tribunals. These need to be constituted at the earliest. Any further delay would be at the nation’s peril. --- INFA

 (Copyright, India news & Feature Alliance)