CRIME AND PUNISHMENT: Are Military Justice Systems really
superior as claimed by the General? A Critique
Chandra Nath
February 26, 2011
This has reference to a recently published article
by Lt Gen Vijay Oberoi (Retd) in these columns.
The general makes a compelling case for account-
ability in all walks of life and quick and responsive
justice system. Another very important point the
General drives home is the civil society (actually gov-
ernment i.e executive branch of government) tries to
protect the offender and even goes to shield him by
parking him in places where the long (?) arms of
the law cannot reach them. Having stated that in
praise of the article, on deeper analysis, the article is
problematic in many respects.
Where the problems arise is when he advances his
case bordering on the following (along with critique):
1. Society is divided into Army (Military actually)
and civil: It is too simplistic conception of a mili-
tary mind to think about larger society into two
simple compartments- military and civil. Mili-
tary is only a very small segment of the society
specifically organised to defend the country from
external enemies. Standing army is a bane of so-
ciety and the part of the society has to be denied
civil liberties to carry out this function.Having a
standing army , apart from denying the civil lib-
erties to part of the civil society, also has the risk
of usurping power and hence has to be kept un-
der check. It is exactly for this reason that many
countries had extreme suspicion of standing mil-
itary and even toyed with the idea of common
citizen forming militias. Even USA is included
in the countries that toyed with this concept of
militias.
2. Military justice system is fast, severe and fair
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in bringing to book all range of offences (very
minor to very grave): No one can dispute that
it is fast and severe but can one be sure it is
fair? Unfairness is the biggest risk of the military
justice system.
3. Military justice system is superior in every re-
spect and then why not have the same swiftness,
fairness and sternness for the civil too? Why not
the nation switches to a military justice system:
This is a very dangerous argument bordering on
the ridiculous. Military justice system is tailored
for a purpose by compromising on the ”fairness”
part of it and extending this to the whole society
is nothing short of ridiculous.
4. The military has the reputation of punishing any
and all crimes that are found out or reported.
It may be a lowly misdemeanour like filching
something or a grave crime like murder, assault,
espionage and the like, but punishment follows
swiftly and inevitably.: Too tall a claim!
5. Without fast track punishment, command will
become ineffective (The reason is simple. The
military would become ineffective and instead of
being a disciplined force, it will turn into a rab-
ble. Why does this not happen in our civil soci-
ety?): It is this fundamental nature of military
justice system that makes it a tool of the com-
mander to maintain discipline. Once the com-
mander made the decision to prosecute, then all
the effort is concentrated on punishing the in-
dividual accused of the offence. This is exactly
the problem of the military justice system. Its
 fundamental purpose is not fairness but how it juicy story. When day in and day out, you ad-
advances the purpose of the effectiveness of the vocate that military is superior and when they
commanders in first setting an example for the find a juicy story to explode this myth, they grab
people under the command. It is designed to ad- it. They have nothing inimical in their stance
vance the command function. This is not exactly against the military. They are as much after
the goal of a civil judicial system, to advance the government and the executive, the legisla-
the executive function. In fact the executive in- ture and the judiciary (the three wings of the
cluding the PM and the President are also not government) Who are the ”few misguided army
above law but subject to the laws and the fun- personnel” and who is misguiding them. Other
damental goal is not to advance the agenda of than these ”few misguided”, are the rest of us all
the executive. Are we aware of all the cases in lilly white and model members of the society?
which the commander has decided NOT to pros-
ecute? What has happened to those offenders? 7. The third category is the army, where no crime
The decision to prosecute is purely a command goes unpunished and where promptness and jus-
decision and many of the problems of the mili- tice prevails: This is a very tall claim and to-
tary justice system may lie in this domain. ”The tally unsubstantiated. Didn’t the COAS try his
commanding officer (CO) is extremely important best to save his MS in the highly visible Sukhna
in the military justice system. The CO has both scam? Is the General suggesting that such at-
disciplinary powers and powers like those avail- tempts to save favourites at every level do not
able to a judge. These include the power to is- exist? ”Where no crime goes unpunished” is far
sue arrest and search warrants, cause investiga- from the truth! Once the commander decides to
tions to be conducted, dismiss any charge of any prosecute, then no stones are left unturned to
disciplinary or criminal offence, try most mili- punish the accused as heavily as possible could
tary personnel, delegate some powers of trial and be the truth. That exactly is the problem of the
punishment to junior officers, and apply for the military justice system. This is not peculiar to
convening of courts martial. The mere presence India but to all military justice systems!
of an accused person on a base or with a unit 8. Many in the army have often speculated that be-
or other element under the command of a CO is hind such banner headlines, there is a concerted
sufficient to give to the CO disciplinary jurisdic- effort to show the army in a poor light by those
tion over the person. A charge or formal accusa- vested interests who are practitioners of the well
tion alleging a service offence by a person subject known Indian crab syndrome -pull down the best
to the AA is laid when it is put in writing on a to their own gutter level!: This is too devious
charge signed by an officer authorized by a CO to and paranoid view to be dismissed with no fur-
lay charges. Hence, only an officer authorized by ther comment.
the CO to lay charges can lay a charge.However,
by authorizing subordinates to lay charges, the The article almost claims how great our military
commanding officer can in practice influence the justice system is and challenging the the ”other half
decision to charge and the charges that are laid.” of the society” to follow the military justice system.
The author does not appreciate the fact that the mili-
6. The media comes down hammer and tongs when- tary justice system is an exception and not a norm for
ever a few misguided army personnel commit of- society! To make the rest of the society to adopt that
fences, but always play down and seek justifi- fast track system is not only unbalanced but lacks an
cations for powerful individuals like politicians, appreciation of the goals of a civil/criminal justice
bureaucrats, police, judiciary, media barons and system. It is not for advancing the executive agenda
corporate honchos: This is a very warped view unlike the military justice which is essentially and
about the media.The media is after a hot and wholly to advance the commander’s agenda. Why

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was there uproar in the US courts against trial of not be put together with any amount of persuasion
Guantnamo prisoners under military courts? If mili- or logic!
tary justice system is superior to civil courts, why the **************************
uproar? The author has totally a warped view of the
military justice system and it is so totally jaundice
eyed that his views are at variance with the view of
the world renounced judicial minds.
In conclusion, in the military system, the
CO/Commander is the police(law enforcer), the in-
vestigator, the prosecutor, the judge, the jury, or the
appointer of the judge, and the jury and the execu-
tioner or the jailer. Each duty has conflicts of interest
and violates the fundamental principles of separation
of duties.To hail this as the most fair system is a feat
capable only in the dark precincts of a military mind
where the light of wisdom of theory of jurisprudence
has never entered! Military commanders who have
serious limitations in judging the complex world of
jurisprudence should refrain from advocating things
they have hardly any understanding. I am reminded
of Bertrand Russell’s saying I carry in my signature:
Logical errors are, I think, of greater practical im-
portance than many people believe; they enable their
perpetrators to hold the comfortable opinion on every
subject in turn.
In essence, the military justice system comple-
ments the civilian justice system to accommodate –
in theory, at least – the unique operational demands
of the military. To extend the risks of system or a
system bordering on that for the rest of the country
is not only ill conceived but ridiculous.
If military justice system is all so great, why there
is constant cry for reform in all countries where they
value the protection of the rights of the individual?
Obviously, the author is totally ignorant of the whole
world of literature on the short comings of the mili-
tary justice system.
Society accepts, albeit reluctantly, a flawed and
perhaps unfair system for a very minuscule section
of the society (and thank GOD it is only a very mi-
nuscule section of the society!) more as a compro-
mise for purpose of a well disciplined and effective
military than for superior and ideal reasons! If you
think of military justice system as this fundamental
compromise the society has made, the arguments of
the author falls apart into disjointed pieces that can-