This article is written by Vishwa Engineer.
Wars are as old as state itself, and the defence machinery of the State is undoubtedly of its oldest organs. Not only are the armed forces inseparably linked with linked with the existence of the modern State, but they have also become the state’s decision making organ in many cases. ‘Security first’ has become the principle preoccupation of the most powerful of modern states. The armed forces have featured prominently in political domination and the maintenance of internal order in regimes of varying political complexions. As far back as third century BC, the empire of Ashoka (272-232 BC), which later become known for the spread of the non-violent Buddhist philosophy, was built on the strength of an efficient army.
The ability of the state to defend itself is a sin qua non of its independence. This is clearly borne out by history, as every country rising to statehood or breaking away from another state has regarded the right to defend its frontiers as the very essence of its sovereignty. Defence is closely related to the nation’s external policy and some countries’ internal policies also depend on it. According to finer, contemporary state posses five characteristics.
- A state is territorially defined population, the members of which recognise a common paramount organ of government.
- This organ is served by specialised personnel: a) a civil service to implement decisions; b) a military service to back these by force when necessary and to protect the association from similarly constituted associations.
- The state thus characterised is recognised by other similarly constituted states as having independence of action over the population (i.e, subjects), confined by its territory. This constitutes ‘sovereignty’.
- The population of the state forms a community of feeling, in terms of the consciousness of belonging to a common nationality.
- The population forms a community also in the sense that its members mutually participate in distributing and sharing duties and benefits.
Oppenheim has very appropriately stated that the ‘armed forces’ are organs of the state which maintains them, because they are created for the purpose of maintaining the independence, authority and safety of the State. In 1942, India rejected the offer made by the Cripps mission because ‘defence’ was to be the subject of the reserved for the viceroy and without the control over the defence there could be no question of sovereignty.
‘Defence is a recognised term, which occurs in almost every written constitution, including those of India, the USA, France and Australia. Armed forces the world over have their own judicial system that assist in maintaining discipline and in the dispensation of justice. It is the fundamental obligation of the State to make adequate laws and organise an efficient legal and justice system for the armed forces that is worthy of respect and embodying the notions of justice.
Table of Contents
Concept of Justice
Ever since the evolution of social organisation, justice has been one of the essential components of the ideal state. The term ‘justice’ represents a legal, ethical and ontological concept that is as old as human kind. Cephalus, one of the interlocutors of Socrates, defined justice as ‘honesty in need and deed’, seeming to equate it with telling the truth and paying back whatever one has received from another. Thrasymachus defined justice as ‘the interest of the stronger’. In this sense, ‘just’ is synonymous with ‘lawful’ or ‘legal’, ie, what the ‘customs’ or ‘laws’ of the city prescribe.
Aristotle regarded justice as a particular virtue and one most necessary to a state of welfare. According to him, ‘just means lawful and fair, and unjust means both unlawful and ‘unfair’. To him, just in his most general sense is ‘voluntary obedience of law’. There are two kinds of justice-natural and legal. Natural justice ‘is that which has the same validity everywhere and does not depend upon acceptance, while legal justice can take one form or another indifferently, but is decisive once laid down’. There is a natural law or the law of the reason which commands that no one shall impair the life, the health, the freedom, the health, the freedom or the possession of another’.
According to John Rawls, ‘justice when applied to an institution requires the elimination of arbitrary distinctions and the establishment within its structure of a proper balance or equilibrium between competing claims.’ He formulated the following two principles of justice governing the just order.
First: each person should have an equal right to the most extensive total system of equal basic liberties- compatibles with a similar system of liberty for all.
Second: Social and economic inequalities are to be arranged so that they are both:
a) to the greatest benefit of the least advantaged, consistent with the just savings principles; and
b) attached to offices and positions open to all under the conditions of fair equality of opportunity.
Formal justice tells us that rules should be followed and that we should behave consistently. Fairness, on the other hand, tells us not only that certain rules should be followed but also why they should be followed, and that the reason it is wrong to break rules is that it is unfair. The principle of fairness is therefore substantial in a in which formal justice is not.
The idea that justice is a matter of people getting what they deserve is perhaps the most common and tenacious conception of justice. Justice is seen as such a basic component of any human society that it does not have to appear as an explicit postulate for an ideal social order. Any perceived injustice ought to provoke a strong protest and a demand for the re establishment of justice.
The term ‘justice’ is frequently qualified, thus indicating the particular or distinct type of justice to which refence is being made. ‘Social justice’ or ‘distributive justice’ refers to the extent to which society’s institutions ensures that benefits and burdens are distributed among the members of a society in a ways that are fair and just. When the institutions of a society distributes benefits and burdens in an unjust way, there is a strong presumption that those institutions should be changed. A second important type of justice is ’retributive justice’ or ‘corrective justice’. Retributive justice refers to the extent to the punishments are fair and just. In general, punishments are held to be just to the extent that they take into account relevant criteria, such as the seriousness of the crime and the intent of the criminal, and discount irrelevant criteria, such as race. It would be barbarously unjust, for example, to chop off a person’s hand for stealing, or to impose death penalty on a person who by accident and without negligence injured another party. A third kind of justice is ‘compensatory justice’. It refers to the extent to which people are fairly compensated for their injuries by those who injured them. Just compensation is proportional to the loss inflicted on a person.
Justice is the legitimate end of the law. Justice must necessarily precede law since people conceived of law because they wanted justice. If we carefully progressive human approach to the concept of justice, we cannot expect security in a society or a state where justice is denied to the people and they suffer from a sense of injustice. Thus, justice is necessary for ensuring peace and security.
Notions of Justice
The idea of ‘earthly justice as the essence of the nature of law emerged early in Greek philosophy. One factor that may have contributed to this mode of thought was the extreme harshness of the law, which was drawn or compiled by the celebrated Draco in about 621 BC and which, according to contemporary Athenians, was written, not in ink, but in blood.
Punishment is perhaps the original meaning of justice. The word ‘justice’ in the Old Testament and in Homer virtually always refers to revenge. The classical alternative to the utilitarian position on punishment has been a view called ‘retributivism’- those guilty of crimes should be punished because they deserved to be punished. Their wrongdoing makes it permissible for the State to punish them. Punishment should not be merely be a deterrent against future crime but also an educating device, something that exhibits the wrongfulness of a crime to the offender.
Kant offered the example of unvarnished retributivism: the rationale for punishing someone is only that he or she has committed a crime; the crime should be punished according to the principle of equality- the severity of the punishment must somehow ‘equal’ the severity of the crime. However, the system of retributive punishment must be humane. In order to advance the idea of justice, Nozick has outlined the five elements that distinguish from revenge to retribution:
- Retribution is done for a wrong, whereas revenge may be carried out for a slight or perceived slight and not for a wrong.
- Retribution sets an upper limit on punishment according to the seriousness of the wrong, whereas revenge sets no such limit.
- Revenge is personal, whereas agents of retribution need have no personal tie to the victim of the wrong for whom they exact retribution.
- Revenge involves a specific emotional tone, such as pleasure in the suffering of the punished, whereas retribution either involves no such emotional tone, or involves a different one, such as pleasure of justice being done.
- Revenge has no element of generality, as the agent of revenge is not committed to punishing a similar act done to anyone, only those done to a particular group. In contrast, retribution is committed to general principles mandating similar punishment in similar circumstances.
Retributive justice is theory of criminal justice system wherein punishments are justified on the grounds that the criminal has created an imbalance in the social order that must be redressed by action against the criminal. The theory is often associated with the harsh punishment, and ‘an eye for an eye, a tooth for a tooth’ is commonly heard as a justification for this theory.
The punishment must be severe enough to discourage a recurrence of the offence. Rehabilitation is the second most important reason for applying punishment. The concept of rehabilitation and punishment are inseparable. Punishment may be rehabilitative per se and, at the very least, provides offender an incentive to reform. It tells him that a certain kind of conduct would be accepted by his community and that his success as a social animal would depends upon confirming to certain established standards.
The concept of justice evolves with time. In the Indian criminal justice system, the accused was made to languished in jail for an unspecified period until the punishment was decided. It was considered unjust and a new provision was made in 1978 to ensure that the period of detention undergone by the accused is set off against the sentence of imprisonment.
Today, civilised society is engaged in an endeavour to secure justice for the common man. The desire for justice has become keener and the quest for it has intensified. An individual no longer hesitates to take up his for adjudication against the State. In the UK, when the first military justice case was taken up to the European Court for Human Rights in 1997, no one expected that a system that had survived for centuries would come under attack- the court held that there had been breach of the rights the appellant and the military justice system lacked independence and impartiality (both actual and perceived).
In a just order, justice to an individual is as important as the welfare of the society as a whole. Thus, while promoting justice for the society, we must make sure that any specific group, such as the armed forces is not denied basic freedoms and human rights.
Military Justice System
Military justice is a system of law created to enforce certain standards of behaviour among armed forces personnel. Military jurisprudence combines combines the concept of both justice and discipline into one workable legal system. The need for discipline is fundamental in the armed forces. It is discipline that distinguishes the armed forces from a mob. The armed forces are an important organ of the State specialised in the conduct of warfare. By and large, the study of military law has been neglected. As Hegel put it: “If laws are to have binding force, it allows that, in view of the right of self-consciousness, they must be made universally known.”
Speedy trials and predictable decisions aid the military in its efforts to maintain order and uniformity. In addition to enhancing discipline, order, uniformity, efficiency and obedience, the military court addresses certain offences unique to the military. Besides offences at the time of war, other military offences triable by courts-martial are mutiny, desertion, absence without leave, use of insubordinate language, disobedience, insubordination, ill-treatment of a subordinate, signing in blank and violation of good order and discipline.
The object of military law id two-fold. First, it provides for the maintenance of good order and discipline among members of the armed forces and in certain circumstances to others who work in the military organisation. The second object of the military justice system is the regulation of various aspects of administration and operational needs.
Military law in India has remained more or less rooted in the past. The three service acts are, in essence, continuation of the then prevalent system with all its inherent defects. The large number of cases that have come up before the superior civil courts in recent years have shown that the judicial system of the defence forces has not only been moving at very slow pace, but has also not been able to satisfy the aspirations of men in uniform. The recent judgements of the High courts and the Supreme court have found the existing system of governance and military justice ‘antiquated’, ‘awarding excessively severe and arbitrary punishments’, ‘violative of the provisions of the army act and rules’ and ‘not in consonance with the liberal spirit of the Indian Constitution’. A disciplinary system that is perceived of as fair by all servicemen is essential for the recruitment and retention of personnel with the skills required for the maintenance of the armed forces.
No statute, however ably drafted, can be absolutely free from shortcomings, The laws also grows and needs amendment from time to time. In India, the creation of the tri-service Strategic Forces Command in 2001 and the uniformity in the functioning of the three services has made the formulation of a uniform disciplinary code for the three services a necessity. A fair and just ‘justice delivery system’ is a moral assurance to the people that their constitutional rights would be protected. It is necessary to ensure that the Armed Forces are not deprived of these rights, so that the competent and courageous people do not shy away from joining the forces and military personnel feels assured that they are overseen by an impartial justice delivery system under the Indian Constitution.
History of Indian Military Justice System
Military law in India originated, for the large part, from a union between classical Indian traditions and the culture imposed by the British Army. The history of military law in India is co-extensive with that of Indian army created by the British. The early factories established by the East India Company(EIC) were guarded by Europeans recruited for that purpose. Subsequently, Indians were enrolled as armed guards or peons with the dual objective of protecting the factories of the EIC and lending dignity to its principle functionaries. As the factories grew in size and importance, the peons were organised in a semi-military structure, and gradually improvements were made in their organisation. From these guards sprang the EIC’s European and Indian Troops.
From the mid-1700s until August 1947, British regulations, including the Articles of War and the British Army Act, governed military justice in India. After 1824, a series of regulations restricted commander’s power. These regulations, entitled ‘Rules and Articles for the better government of the officers and soldiers in the service of East India company from the 1st day of January 1841’, shifted much of the power to punish from the sole discretion of the military commander to a court-martial panel of officers. A commander wishing to impose substantial punishment was forced to convene a court-martial.
The British clearly wanted to ensure ultimate control and to protect their interest in India. However, provision was made for the Indians to have a hearing before a court-martial panel composed of other Indians. But the ultimate control of power to take decisions and implement it relied with the British commander. Flogging was a common mode of punishment with the number of lashes increasing with the gravity of the offence.
The mutiny of 1857 caused reconstruction both of British administration and of the British military system in India. The territories directly administered by the East India Company were transferred to the Crown under a viceroy. The EIC’s army was incorporated into the British army. The amendments of the Indian articles of war was taken up again and the Indian Army Act 1911 was passed. It came into force on 1 January 1912, repealing all previous acts on the subject.
After independence, three separate acts came into force for the governance of the three services- the Army Act 1950; the Air Force Act, 1950 and the Navy Act, 1957.
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