WHY DO GENERALS AND JUDGES THINK DIFFERENTLY?

WHY DO GENERALS AND JUDGES THINK DIFFERENTLY?

Military leaders (generals) and judges in courts of law live in almost two different worlds. It sometimes appears that they think and act differently. This happens not only in India but around the whole world. They think and act differently because they have distinct roles and work in almost distinct contexts. The judges overrule the generals very often in courts of law and sometimes even pass disparaging remarks against them. The judges thus accredit themselves with higher intellect and wisdom.

The generals on the other hand are often called upon to wear the hats of judges and pass judgements. All military commanders have judicial powers, and other officers also exercise judicial powers when part of a court martial. They also take decisions about the pay and allowances of the people under their command, which are frequently challenged in the courts of law, especially the Armed Forces Tribunals (AFT). The military leaders are expected to follow the rules of natural justice while exercising these judicial powers. Democracies the world over grant extensive powers to their military leaders to enable them to carry out their assigned tasks which are critical for the very existence of the state.

On the other hand, the judges have no chance of ever leading the troops in battle. The judges and even their future generations are never going to bear arms to protect the sovereignty and integrity of their nation. This lack of exposure to the field of warfare by the judges sometimes leads to judgements that are apparently not in the best interest of the nation.

Despite the glaring differences, these two fields have many similarities in certain aspects of their responsibilities and attributes. Some of the similarities in the functioning of the generals and justices are as follows: -

·     Decision-Making: Both judges and military leaders are responsible for making critical decisions. Sometimes they are called upon to make even life-and-death decisions. Judges must weigh evidence, interpret laws, and render fair judgements. Military leaders must make strategic decisions, assess risks, and determine the best course of action in complex and dynamic situations. Both roles require the ability to analyse information, consider multiple perspectives, and make well-reasoned decisions. 

·     Authority and Responsibility: Judges and military leaders hold positions of authority and carry the responsibility of exercising that authority in the best interests of those they serve. They are entrusted with the power to enforce laws (judges) or make military decisions (military leaders) that can have significant impacts on individuals and society. 

·     Impartiality: Both judges and military leaders are expected to demonstrate impartiality and fairness in their decision-making. Judges must be unbiased and treat all parties equally, ensuring that justice is served. Military leaders are expected to make decisions based on military objectives without favouritism or personal biases. 

·     Leadership: Judges and military leaders are called upon to provide leadership within their respective domains. They must inspire confidence, establish clear goals, and guide those under their authority. Effective leadership involves communication, setting expectations, and motivating others towards a common objective. 

·     Knowledge and Expertise: Both judges and military leaders require specialised knowledge and expertise to carry out their roles effectively. Judges must have a deep understanding of the law, legal principles, and precedents. Military leaders need a comprehensive understanding of military tactics, strategy, and operational considerations. Both roles necessitate continuous learning and staying abreast of developments in their respective fields. 

·     Integrity and Ethics: Both judges and military leaders are expected to uphold high standards of integrity and ethics. They must demonstrate honesty, fairness, and adherence to established codes of conduct. Integrity is essential to maintaining public trust and confidence in the judicial system (judges) or the military hierarchy (military leaders).

Although similarities do exist, it is crucial to acknowledge that judges and military leaders’ function in separate settings characterised by diverse goals and limitations. The legal and military domains adhere to specific laws, regulations, and principles that shape their decision-making processes and conduct. Their operational methodologies are grounded in well-established and highly relevant principles such as the "principles of war" in military affairs and the "laws of natural justice" in legal proceedings.

Principles of Natural Justice

The laws of natural justice, also known as the principles of natural justice, are fundamental legal principles that aim to ensure fairness and procedural due process in administrative and judicial proceedings. These principles are based on the idea of natural justice, which holds that individuals should be treated fairly and can be heard in any decision that affects their rights or interests. The specific principles of natural justice can vary to some extent across jurisdictions, but they generally encompass the following fundamental elements: - 

·     Audi alteram partem: This Latin phrase translates to "hear the other side." It means that all parties involved in a dispute or legal proceeding should have the right to present their case, respond to the case made against them, and have an opportunity to be heard by an impartial decision-maker. 

·     Nemo iudex in causa sua: This principle, also known as "no one should be a judge in their own cause," ensures that decision-makers are unbiased and free from any conflict of interest. It prohibits individuals who have a personal interest or bias in a matter from presiding over or influencing the decision. 

·     Impartial tribunal: The principle of an impartial tribunal requires that the decision-maker or adjudicator be neutral and unbiased. This ensures that decisions are made based on facts and the law rather than personal prejudices or preferences. 

·     Evidence and reasons: The parties involved have the right to know the case against them and have access to the evidence being relied upon. Additionally, decisions should be based on the evidence presented and accompanied by clear reasons or justifications for the decision.

In addition, the criminal law has a principle of "presumption of innocence". It is sometimes expressed as Blackstone’s Formulation.

Blackstone's Formulation

It is a principle of criminal law attributed to Sir William Blackstone, an English jurist and legal scholar from the 18th century. The principle states, "It is better that ten guilty persons escape than that one innocent suffer." The principle underscores the value placed on protecting the rights and innocence of individuals in the criminal justice system. It reflects the belief that it is preferable to err on the side of caution and avoid wrongful convictions or unjust punishments, even if it means that some guilty individuals may go unpunished. 

The concept acknowledges the potential for errors, biases, and limitations in the criminal justice process. It recognises the significance of protecting the fundamental rights of individuals, including the presumption of innocence, the burden of proof on the prosecution, and the requirement for evidence beyond a reasonable doubt.

These principles aptly demonstrate that the power given to the judges by their appointment is not unfretted and is expected to be exercised with a lot of humility. It is well understood by society that judges can commit errors, and hence their decisions are rarely final and always open to judicial review by higher courts. The acceptance of the fallibility of the judges, both by the judges themselves and by society, depicts the majesty of the judicial system. In fact, the grandness of justice lies in its ability to rectify wrongs, hold individuals accountable for their actions, and promote harmony and social order.

Zero Error Syndrome in Military

No such potential for error or even delay is permissible for military leaders during operations and even during peace time. Military leaders are expected to be always right and on time; otherwise, the very existence of their nation could be under threat. Hence, military leaders are trained to make swift decisions, even in the absence of complete information. In contrast to judges, military leaders often face the challenge of making decisions in high-pressure situations and under adverse conditions. They are frequently required to act swiftly and decisively, as their decisions can have immediate and far-reaching consequences. Military leaders operate in dynamic and unpredictable environments where factors such as limited information, rapidly changing circumstances, and potential risks to human lives come into play. Their ability to make effective decisions under these demanding circumstances is a testament to their leadership skills, adaptability, and resourcefulness. Unlike the controlled setting of a courtroom, military leaders must navigate complex operational challenges that demand quick thinking and pragmatic judgement. The military leaders are thus not conditioned to follow the ‘principles of natural justice’ while making decisions.

It is difficult for a normal military leader to have the ability to think and act differently while assuming the two distinct roles of a military leader and a judge. It is this inability that sometimes causes heartless decisions on the part of generals while acting as judges. While the judges are trained to let ten culprits get away to save one innocent as per Blackstone’s Ratio, the generals are not ready to accept grant of disability element of a pension to even one  non-deserving soldier. As judges, the generals should be striving to err on the side of their soldiers, and that is how the pension policy has been formulated by the government. The basic principle of the award of disability pension should be, "Let 10 undeserving soldiers get disability pension, but not even one deserving soldier should be denied the same".

Conclusion

The armed forces and judiciary have different principles for their functioning. Whereas the judiciary is expected to display humility in their exercise of powers, military leaders are expected to appear correct and confident, sometimes bordering on arrogance, while discharging their duties. No one wants a weak and pusillanimous general to lead the soldiers in battle.

It is thus inherent in the position of a general that he cannot be a very sympathetic and just judge. It is his duty to make decisions quickly and in the absence of complete information. The militaries around the world don’t have many pending decisions, whereas the courts are facing a huge backlog of cases. The Indian Armed Forces should thus think of creating a separate corps of judges in uniform to make judicial decisions as per the principle of natural justice.

Col Narinder Singh Dahiya (Retd) & Chatgpt

Advocate AFT Delhi

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