Laws for defence forces

A sure recipe for indisciplineby Lieut-Gen Harwant Singh (retd)

THE Parliamentary Committee on Defence has proposed a “makeover” for the defence forces laws, to make them less harsh and oppressive and more democratic in the interest of the morale of the troops. It also wants the three Services to have a common law and do away with separate Acts to bring about uniformity in the dispensation of justice. These recommendations, if implemented, will have far-reaching consequences.


Defence forces have so far escaped political meddling and remained somewhat isolated. That is why they are still fully operative and responsive. They can deliver on time and almost at no notice. Ethos, traditions and continued good leadership have sustained them through many wars after Independence. For the Indian Army, there has been a continuous stressful period of “no war, no peace” in between. In all this, the rules, regulations and the defence forces laws have played no less significant a role. For a layman, it is near-impossible to understand how all these factors coalesce to create that chemistry spirit and morale which make troops give up their most precious possession, their lives, by rushing into a hail of bullets and exploding shells on a simple word, “move”, from their commanders.

When troops are subjected to prolonged periods of stress and danger, and they suffer heavy casualties, discipline can give way to disorder and eventual mass desertions, as it happened, first, to the French army and there to the redoubtable German army during World War I. Indiscipline is highly contagious and if not stemmed with the greatest promptitude (as the French under Marshal Petain were able to do) it can spread like wildfire. That is why powers are vested in commanding officers and formation commanders.

Military law and the summary powers were evolved over centuries of experience of organising armies, maintaining their discipline and leading them into battle. War by its very nature is an extraordinary situation and, therefore, calls for a law quite apart from the civil law, which operates in a totally different setting. When ethos, tradition and good leadership are operative, military law merely provides a backdrop. Military law, except for some cosmetic changes in the fifties and the abolition of field punishments and induction of the requirement of recording, “speaking order” by a court martial in 1992, has remained unchanged and operated efficiently for the last 100 years and more essentially because it is based on sound principles of fair play and justice, and the situation under which the army has to operate has, by and large, remained unaltered.

Of course, there can be in an odd case aberrations in the application of the military justice system and for any higher court to rubbish the entire system would be unfair and unjust. Civil courts’ own justice system is a total mess. earlier higher civil courts had opined that the court martial should give a “speaking order”. Now members of court martial are akin to a jury, except that they are well versed with the working of the military, its methods and military law. Jury is neither competent nor ever required to record a “speaking order”. The recording of a speaking order has resulted in the Judge Advocate branch officer on the court marshal, who is there only in an advisory capacity relating to points of law and no more has come to exert unwanted influence on the court because he is the only one trained and capable of writing a speaking order.
There was a time not long ago when if an officer or a soldier in the defence services committed an offence or seriously defaulted, he made a clean breast of it and that resulted in some leniency in dealing with the case. Such conduct is nowhere to be seen now. Any one who is caught doing something wrong has the standard defence of being victimised and targeted. No one ever admits his wrong-doings. But this then is in keeping with the national trait and practice in the civilian life.

Though the punishments ascribed against the various Acts of the military law may be severe, rarely is the full punishment awarded. Much of it acts as a mere deterrence and creates a salutary effect on the potential offender. It is the certainty of punishment and not the severity that finally comes into play. The Tehelka offenders from the army have all been punished but those from the Ministry of Defence are a happy lot as they continue to enjoy the money the Tehelka team gave them and the benefits of civil law. The Additional Secretary, who accepted a gold chain from the Tehelka team was soon promoted. His benefactors contented that he did not take the gold chain home but kept it in his office. Obviously, that contention is enough to render the civil law inoperative. Applying similar law to the military would render it an ineffective instrument of state power with disastrous consequences.

With the passage of time and changes in society’s perception of civil liberties, human rights and social environments, the laws must be altered to fit the changing circumstances. For the military, little has changed; in human behaviour, living with extreme stress and danger and the individual’s natural instinct for self-preservation. The contagious nature of ill discipline has remained the same. So military law, unlike civil law, could do with minimum changes.

The very nature of working in each Service is quite different and a common law is against common sense. Contention that the military law demoralises troops is based on incorrect inputs. Of the military’s cases that are taken up with high courts and the supreme court, only 5 to 7 per cent are struck down. Compare these to those of civil courts and the figures prove the fairness in the application of military law.

The commanding officer’s summary powers too seem to rankle the committee, little realising that he is the cutting edge of the military’s delivery system and unequivocally accountable for the discipline of his troops. He is a father figure in the unit. When all attempts to correct a habitual offender have failed and the possibility of ill discipline spreading in the unit exists, recourse to summary court marshal is taken. Most commanding officers, after punishing one of their men, remain sad and sullen for days. For them it is like punishing their erring child.

Making the Defence Services Tribunal contingent on the adoption of common law for the three Services is misconceived and a nonstarter. Three earlier attempts at working out a common law have failed. The tribunal must have a retired officer from each of the three Services as member so that cases pertaining to each Service are dealt with by a bench consisting of a judicial member (high court judge/JAG) and a member from the concerned Service.

Ill-disciplined troops are worthless, a menace and a danger to the nation. No other statute in the military’s law books has contributed more to maintaining discipline than the summary powers of the commanding officer. Taking away these powers of commanding officers will have yet another fallout. As in the civil courts, it will clog the military’s justice system, result in delays in the disposal of urgent cases and deliver the final fatal blow to the discipline in the military. Bringing military law in tune with the civil law will have grave consequences for the military and eventually for the country and its security.




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