Ethics in the Indian Military

By Dr U C Jha

In today’s tempestuous environment, the issues of indiscipline, corruption and criminality in the armed forces reflect broader issues of military ethics, culture and leadership. A military leader has to motivate his followers to achieve maximum results with minimum friction within the group. The ability to motivate men stems largely from the ability to understand them. It is time for military leaders to do some soul-searching on the components of military ethics. The book argues that the existing legal and policy framework is inadequate to regulate behaviour in the barracks as well as in conflicts. It recommends reforms in the military legal system, incentives, practices and training. This book is for policy makers in the armed forces, military officers, military lawyers, academics, journalists, and those with an interest or professional involvement in the subject.

• Language: English
• Publisher: VIJ Books (India) Pty Ltd
• Release date: May 6, 2019
• ISBN: 9789388161480

Dr U C Jha

Wing Commander (Dr) U C Jha, has extensive field and academic experience in military law and international humanitarian law (IHL). His recent publications includes: Ethics in the Indian Army (2019), Human Rights in the Indian Armed Forces: An Analysis of Article 33 (2019), Indian Military Domestic Deployment: Armed Forces Special Powers Act and Human Rights (2018), Child Soldiers: Practice, Law and Reform (2018), Law of Armed Conflict: An Introduction (2017), Pakistan Army: Legislator, Judge and Executioner (2016), Killer Robots-- Lethal Autonomous Weapons Systems: Legal, Ethical and Moral Challenges (2016), and An Introduction to Military Law: A Reference Manual (2016).

Book preview

Preface

Military ethics relate to the core values and moral principles that collectively govern the officers and men serving in the armed forces of nations around the world. The ethical foundations, developed over a long period of time, are built on shared values and experiences and serve as the basis for various codes of conduct for warriors and the laws of war or international humanitarian law (IHL). Military ethics incorporate concerns about the conduct of soldiers, how to engage in an armed conflict, and care of those who serve and the retired fraternity.

A few recent publicized events related to ethical issues in the Indian military led to bringing out this publication. In December 2018, the CBI booked two army officers for allegedly taking bribes of over Rs 82 lakh from a civilian supplier for the provision of rations for troops posted in Nagaland. In the same year, an officer posted at the Army Headquarters was arrested for allegedly running a racket of illegal transfers and postings in exchange for money, while two senior officers were subjected to a CBI probe for involvement in corrupt practices and recruitment scams. An army officer appearing in the Defence Services Staff College entrance examination was found using a smart-watch that stored answers to the questions.

The Supreme Court has recently rejected the plea filed by around 700 army personnel protesting the dilution of the protection from prosecution under the AFSPA for alleged fake encounters. During the period 2014 to 2017, the Indian army reported a total of 207 cases of suicide/ fratricide, which included nine officers and 19 junior commissioned officers. There have been a few cases of clashes between officers and the men they command. A number of military personnel took to the social media to air their genuine grievances. Instead of introducing reforms in the grievance redressal system, the military hierarchy threatened them with strict disciplinary action. Finally, an ex-service chief is being investigated for his involvement in corrupt practices in the purchase of helicopters. According to Transparency International, corruption related to defence procurement in India has been high, with a large amount of its procurements shrouded in secrecy with low levels of accountability.

What could be more disheartening than the abhorrent misuse of the legal system by the military and civilian bureaucracy to deny disability-pension to soldiers? In more than 90 percent of such cases, where disability-pension has been awarded by the higher court or tribunal, the government has gone in appeal against own ex-servicemen. While these isolated incidents may seem unrelated on the surface, they reflect deeper institutional shortcomings regarding ethical matters and underlying cultural attitudes related to duties and accountability in the armed forces. These incidents are symptoms of malignancy eating away the integrity, morality and cohesiveness of the military and can have pernicious effects.

These ethical issues may be less alarming or visible than the involvement of senior officers in espionage activities, fake encounters or allegations of enforced disappearances elsewhere, but they are no less serious. They cannot be brushed aside as isolated incidents in a military as large as ours. They need to be addressed by the senior leadership with a high degree of transparency and straightforwardness.

This book has five chapters. The introductory chapter narrates a few serious cases relating to the falling moral values in the armed forces and sets in motion the discussion on the subject matter. The second chapter deals exhaustively with the legal system which governs the armed forces in peace and war. Discipline and obedience are two important virtues essential for the operational effectiveness of the armed forces. Chapter three dwells on various aspects of these twin issues and discusses whether a subordinate would be justified in refusing to execute an illegal order of nuclear strike. Chapter four highlights the value system in the armed forces. It also covers the concept of honest belief in the use of lethal force by military personnel. The fifth and concluding chapter sums up the issues taken up for discussion in the introductory chapter and makes certain recommendations regarding ethical training in the armed forces.

I am grateful to Vij Publishing Group, New Delhi for bringing out this publication.

-U C Jha

Chapter 1

Introduction

Introduction

The armed forces are an essential part of every State.¹ A State cannot achieve its aims by diplomatic means unless it has a strong military force to back it. The armed forces are created by the State to fulfil certain specific objectives, the main being to fight and win the wars.² They may have the additional tasks of providing aid to the civil authorities during internal conflicts and taking part in mitigation activities during disasters. They may also be tasked with international activities such being part of the United Nations peacekeeping missions.

In the armed forces command is centralized and a continuous chain of command links the lowest echelon with the supreme commander. The armed forces as an organization expect its members to be disciplined, hard-working and willing to risk their lives. It also requires its members to make collective efforts and place the commands of superiors ahead of their personal needs and judgments. The most unique function of members of the armed forces is to kill people. They have to make split-second, life-or-death judgments with incomplete information. They are commended for killing enemies of the country but can be prosecuted for killing a non-combatant.

The State enrols soldiers and may not allow them to opt out even when the risk to life seems too great. Duty and honour play a greater role in the military than in any other occupation. Self-interest cannot be given the same place in the life of a soldier as in the life of others. Though instantaneous decisions have to be taken during military operations, members of the military are expected to live up to certain standards of ethics even while suffering from fatigue and injury and while fighting under less than ideal environmental conditions. Soldiers are expected to do these things without any advantage to them and to willingly sacrifice their lives.

The Armed Forces in India

The armed forces of India comprise the Army, Navy and Air Force. They serve as the ultimate instrument for maintaining the unity and the integrity of the nation in the face of external threats and internal unrest and disturbances. The major roles of the armed forces are: (a) safeguarding the sovereignty, territorial integrity and unity of India and preserving national interests in conflict areas; (b) assisting civil authorities in coping with internal threats/contingencies and providing aid when requested; (c) participating in peacekeeping operations under the UN charter; and (d) rendering military assistance to friendly foreign countries, when requested. Among all these, aid to the civil authority in the maintenance of law and order is the most sensitive one. The level of violence encountered in such commitments is escalating progressively. The non-State actors are now targeting innocent civilians, media personnel and religious places. In Jammu & Kashmir (J&K), schools have been systematically destroyed by them to deny education to children. Under such conditions, the deployment of the armed forces has to be planned meticulously, bearing in mind the prevailing sensitivities.

Special Forces: India has a variety of Special Forces (SF) to respond to asymmetrical threats and undertake special missions. The Army has seven SFs and three airborne battalions, the Navy has the Marine Commandos (MARCOS) with approximately 700 personnel, and the Air Force has the Garuds, consisting of approximately 1500 personnel. One SF battalion is normally allotted to each theatre of command of the Army and the overall operational control and deployment is exercised by the Directorate of Military Operations of the Army. The Garuds and MARCOS are centrally controlled by the Air Force and Navy, respectively. In addition, there is the National Security Guard, which operates as an independent force under the Ministry of Home Affairs. Some roles which could be assigned to the SF are (i) special covert operations in peace and overt operations in war; (ii) counter-insurgency and counter-terrorism tasks; (iii) strategic reconnaissance and intelligence gathering; (v) hostage rescue operations; (vi) anti-piracy tasks and safeguarding off-shore energy assets; and (vii) combat search and rescue operations. India also has paramilitary forces with nearly one million personnel. These perform an important dual role, acting as a direct hedge against the military, and an indirect hedge in keeping the military insulated from intervention in law and order problems.³

India is situated in the middle of the world’s busiest trade routes, with the Strait of Hormuz to the west and the Strait of Malacca to the east. It shares its 15,100 km border with Pakistan, China, Nepal, Bhutan, Bangladesh, Myanmar and Afghanistan. It has exclusive economic zones (EEZ) of over 2.1 million sq km. Protecting and defending such large, porous borders and EEZs is a complex challenge for the armed forces, which need to be prepared for multi-faceted security challenges. Accordingly, the Indian Army is now taking steps to sharpen its entire war-fighting strategy, ranging from the creation of agile integrated battle groups (IBGs) and expansive cyber warfare capabilities to induction plans for launch-on-demand micro satellites, directed-energy weapons, artificial intelligence (AI), and robotics.⁴ The Army’s new Land Warfare Doctrine-2018 dictates that any adversarial attempt to alter the status quo along the international borders will be dealt with in a firm and resolute manner. Internally, the military has to deal with insurgencies at varying levels of intensity. In addition to the ongoing conflict in J&K and insurgency in the troubled states of the northeast, it has to respond to threats from the Naxal Movement.

Ethics, Discipline and Morality

The term ethics has been defined as a system of moral tenets or principles; the collective doctrines relating to the ideals of human conduct and character.⁵ In order to ensure that a person behaves ethically; laws, codes of conduct, systems of checks and standards have been created by the society.⁶ Military ethics is about obligation, duty and responsibility. It is a collection of values, beliefs, ideals, principles and moral. It is embedded in the military culture that inspires and regulates individual and organizational behaviour in the application of force in the service of a nation. In fact, entire discipline of ethics is built upon the concept of dharma⁷ which denotes a mode of life or a code of conduct. Ethics is not confined to our professional conduct in armed conflict but also guides our everyday existence. It gives purpose and strength to our character to take decisions in every dimension of our personnel life. Being guided by ethics in peace, in fact, directly influences our performance in war.⁸

The Indian society has held the soldier in high esteem and offered him a unique status. The average Indian trusts the 1.5 million strong armed forces more than any other establishment in the country. Military service embodies some of the deepest values of our society, and produces character that inspires admiration and respect. The concept of unlimited liability in defence of national interests distinguishes the military profession from other professions. Armed forces personnel, unlike other professionals, are required to adhere to high ethical and moral standards even in their personal lives. Discipline, honesty, high moral values, selflessness and commitment — traits that inspire trust and confidence— must be present in military personnel if the military is to serve the society effectively.⁹ The respect for the military gets eroded when scandals and conspicuous moral failures of indiscipline, corrupt practices, and fake encounters tarnish its image. Certain incidents involving the armed forces, particularly the army, have sullied the image of the services. A few of such incidents are discussed herewith.

I. Murder at an Air Base

This incident dates back to 03 March 1998. There was an allegation that Sepoy Garje (posted at the Air Force Station in Bikaner) had misbehaved with the wife of an officer, when he had gone to attend a complaint of faulty telephone at the officer’s house. The officer (Flt Lt V) complained about the incident to his superior. Later, Flt Lt V asked Garje to report to him. Since he did not turn up, Flt Lt V along with another officer went to the billet of Garje and forcibly took him in a Gypsy driven by the commanding officer. Garje was taken to the office for ‘investigation’ and after some time was brought to the medical examination room in a coma. The official version of the incident was that Garje had jumped from the running Gypsy and fallen into a ditch. Garje was admitted to the civil hospital in Bikaner, where he succumbed to his injuries the next day. The post-mortem report said that the deceased had sustained as many as 14 ante-mortem injuries, including a few in the genital area.

A general court martial (GCM) assembled at Bikaner examined 35 witnesses for the prosecution and six for the defence. Wing Commander Mander and the other accused were duly represented by a counsel. The GCM convicted Mander and four other officers and awarded five years’ rigorous imprisonment (RI) to Mander and three years RI to the others for offences of culpable homicide not amounting to murder, conspiracy and unbecoming conduct. The chief of the air staff (CAS), on confirmation, remitted Mander’s sentence to two years and commuted the punishment of the other four to forfeiture of two years service for the purpose of pay and promotion and severe reprimand. Mander was sent to jail, while the others were retained in the service.

Mander filed an appeal in the high court challenging the GCM proceedings, which was later transferred to the Armed Forces Tribunal. The Principal Bench of the Tribunal acquitted the petitioner-accused. It relied on the unsworn statement of Mander and commented, This appears to be a natural statement of the appellant accused, while doubting the evidence of the prosecution witnesses. In fact, unsworn statements have no evidentiary value. The Tribunal set aside the conviction and sentence awarded by the GCM and stated that Mander shall be deemed to be in service till the date of superannuation in the present rank and be entitled to pension thereafter.¹⁰

The acquittal of the accused poses few questions: If Garje was not killed by Mander and the other officers, then who was responsible for his untimely death? Was Garje a victim of custodial torture? How could he jump from a running Gypsy when four officers were sitting with him in the rear of the vehicle? Was there no governance at the air force station where an officer abducted the victim from his billet? Since Mander had only appealed against disproportionate and harsh sentence, did the Tribunal err in its decision by acquitting him? What were the compelling reasons for the CAS to virtually pardon four officers who were guilty of committing a serious civil crime? Could such power be misused by the military bureaucracy?

II. A Staged Encounter

In 2003, a few army men staged encounters in Siachen to claim gallantry awards. They constructed bunkers, and had them demolished by firing a rocket. They ordered soldiers to act to be video-graphed as dead soldiers. They made them swear before God that they would not reveal the fake killing. The incident was recorded on video camera and the footage was used to make a claim for an award.

Based on certain complaints that enemy killings were fabricated by one unit in Siachen, a court of inquiry was ordered. The court of inquiry held Major Singh, company commander of a battalion, blameworthy for ‘faked killings of some enemy personnel and destruction of some enemy bunkers’ and ordered disciplinary action against him. However, this version was later changed to ‘exaggerating and faking some events on the Glacier’. It was reported that during the investigation by the court of inquiry, Major Singh gave details about fake killings by a few other units in Siachen.

The court held the commanding officer (CO) of the battalion and his adjutant guilty of ‘administrative lapses’ and ordered ‘administrative action’ against them. The CO and his adjutant were held ‘guilty of committing acts of omission and commission of administrative nature’ that were not related to the