Thin Line Between Privileges of Rank and

Misuse of Office

PRESENTATION

Fifth International Symposium on Security

and Military Law organised by the JAG, Republic of Korea Army, at Seoul on

26 September, 2014.

PRESENTATION BY:

Maj. Gen. Nilendra Kumar (Retd.),Director,

Amity Law School, Noidaand

Former JAG Indian Army

Focus on operations strategy, methods and

means of warfare, weapons development and

arms procurement should not be ignored one

vital aspect.

Issues invariably discussed

Methods &

Means of Warfare

MATTERS HIGHLIGHTED FOR EXAMPLES

1. New weapon technologies2. Drones 3. UAVs4. Autonomous weapons5. Computer and cyber matters6. Asymmetric war7. Ballistic missiles system

Can we ignore theman behind the gun?

The personal attributes to be cultivated

C4I

CaliberCompetence of the menCharacter in uniformCommitmentIntegrity

The topic concerns an issue of ethics and

morality for the military officers.

Though the presentation is in the specific

context of security forces, it would apply

broadly to other spheres also.

ABSTRACTA military unit or formation consists of body of men organised to prosecute the mission assigned to them by their commander.

Military discipline expects instant compliance of the orders of the superior in letter and spirit. It does not tolerate any hesitation, reservation or disregard. A soldier is not to question the need, rationale or logic of the decision (read actions of the higher authority).

xxx/contd…

At the same time, the service conditions and

traditions give certain privileges to the commanders and superiors. Military

ethos, courtesy, decorum also legitimises

such advantages or benefits which may be

called privileges. However, there is a clear

distinction between privileges of service and their

misuse or abuse.

xxx/contd….

The latter category is to be discouraged and

curbed to achieve a high standard of discipline

and serve public interest.

The very nature of military service involves issue

of orders, and obedience thereof.

Military command is one of finest forms of

governance where a superior officer’s orders

may entail a risk of supreme sacrifice.

The subordinates have to harbour total faith

and trust in their superior.

They are conditioned to blindly and instinctively follow his command.

Such a conditioning is brought about by

way of training.

An officer is trained and groomed to be a

gentleman.

While at the military academy the status of

a trainee is of a Gentlemen Cadet.

An officer has to show due adherence to honour

code.

It is to be noted that one is expected to be a

gentleman first. The military training part is

taken up thereafter.

Thus the traditional emphasis has been on

observance of personal conduct and ethics.

CADET HONOUR CODE AT WEST POINT

A cadet will not lie, cheat or steal or tolerate

those who do.

The Mottoof the

Indian Military Academy

The safety, honour and welfare of your country

come first, always and every time. The honour, welfare and comfort of the

men you command come next.Your own ease, comfort and safety come

last, always and every time.

It is expected that the orders issued and

exercise of command would be objective

and justified by military necessity.

The order must not prosecute personal

interest or promote own agenda.

The military leadership is structured, based

and groomed on ‘service above self’.

An obvious question therefore is what meant by

misuse and abuse?

MISUSE

improper, unlawful or incorrect use,

misapplication. It implies mistreat

or abuse.

ABUSE

use to bad effect or for a bad purpose, misuse.

Despite misuse containing an element of

abuse, abuse is an aggravated form of

misuse.

The nature and demands of service entails

privileges and advantages to the commanders.

A commander is thus a privileged person

PRIVILEGE

a special right, advantage, or immunity granted

or available only to a particular person or group.

Privilege is exemption from a liability or

obligation to which others are subject.

It is something regarded as a special

honour.

PRIVILEGES OF RANK

A higher commander may be accommodated in flag staff house. He may require a vantage position from which to operate. May need an exclusive tank, aircraft or ship. He is provided with a staff officer to take care of his personal needs. Further, the commander may be designated as competent authority to sanction funds, resources or move of personnel /units.

He is thus the Boss

Captain of a ship is served food in his cabin.

He does not come to the mess or dining hall.

In fact, he does so only when he is invited.

Resultantly, he is not a member of the Officer’s

Mess. He is not called upon to pay a mess bill.

He is not presented with a mess bill.

BATMAN OR ORDERLY

A batman is a soldier or airman assigned to a

commissioned officer as a personal servant.

Servicesof

an orderly is aprivilege

There would be a variety of lapses in the

nature of misuse or abuse.

Military offences relating to misuse or abuse of

privileges.

Depending upon the nature of transaction the

offence could take any or more of the following.

OFFENCES

1. Unbecoming conduct2. Ill-treating a subordinate3. Irregularity in connection with arrest

or confinement.4. Offences in respect of property5. Extortion or corruption6. Falsying official documents and false

declaration

7. Unlawful detention of pay8. Directly or indirectly accepting or

obtaining for himself or for any other person any gratification as a motive or reward

Illustration of use and abuse of military privileges.

USE MISUSE1.

Use of an orderly or batman

1.

Making him wash clothes

2.

Preparing uniform kit or equipment

2.

Work in personal kitchen garden

3.

Use of official transport for duty

3.

It’s used to take officer’s wife for shopping

4.

To organise/host a party in the mess

4.

To summon mess cook to work at the residence

Minor or initial instances lead to greater lapses

and then offences.

Difference between thieves, robbers and

dacoits.

ABUSE MAY LEAD TO

1. Misconduct2. Cheating3. Misappropriation4. Bribery, etc.

An Actual InstanceUse of official transport in a remote area

by the wife of a senior who used to teach in a

junior School.But she did not care to take wife of an

NCO who also worked at the same place.

A Central issue!

Why are misuses tolerated?

Reasons for the deviation from the honour code.

The notion that the end justifies the means.

Beg, borrow or steal!

Lack of courage on the part of colleagues or

subordinates to report.1. Abuses are overlooked because

one may not be directly involved or targeted.

2. Tendency to look the other way.3. Reluctance to report.

Sycophancy

Lack of whistle blowers

Silence and tolerance leads to, or encourages further misdemeanors

with impunity.

Yet another reason is the risk involved in making

false accusation against a superior.

As a rule an accused is presumed to be innocent till proved otherwise.

Secondly, the onus to prove the charge in such a case

is on prosecution.

An unhealthy practice is followed where

multiple allegations found to be true are

ignored but action is taken for one odd that

could not be substantiated.

It emboldens the offender

Remedy

Roko, Toko, ThokoStop, warn and punish

Ensure dignity of a soldier

Ensure no misuse of men or official resources

or public money.

A Thumb Rule

Disregard or deviation from the laid down

norms may be justified or accepted in the

interest of service, or exigencies of duty,

provided no personal interest was intended.

The question of ethics is about the choice of

path.

CONCLUSION

A commander has to make a difficult choice,

guided by one’s conscience. Conscience is

described as a fallible moral judgment which,

If acknowledged produces actions and if

ignored, merely produces a sense of guilt.