File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Compliance With Illegal Orders Of Superior Officers: Ethical And Legal Implications

In any hierarchical system - like the military, police or a corporate setup - the chain of command is of utmost importance in keeping the order and discipline intact. The superiors pass orders down the line which are supposed to be followed by the subordinates without any objections under normal circumstances. But when these orders turn out to be illegal, a major ethical and legal dilemma presents itself. This paper delves into compliance with unlawful orders from higher-ups, investigating details of legal frameworks, ethical deliberations as well as practical consequences in an attempt to offer deeper insights into this quagmire.

Legal Framework and Historical Context:
The idea of "superior orders" is an old one - sometimes known in legal circles as "command responsibility" or "the Nuremberg Defence." It was brought sharply into focus during the Nuremberg Trials that followed World War II when Nazi officials and officers were put on trial for war crimes. They claimed they were just following orders from above. But the court did not accept this defence; it set a precedent that those who commit illegal acts while following illegal orders cannot be absolved of their responsibilities. The principle has a rich historical background: superior orders.

The principle is generally upheld by contemporary legal systems. For instance, the Rome Statute of the International Criminal Court - among other international laws - clearly delineates that compliance with superior orders does not exonerate one for acts related to war crimes, genocide or crimes against humanity. In this light, many domestic laws place an obligation on individuals to defy unlawful orders. These elements feature in legal frameworks and depict various dimensions that underscore both individual responsibility and culpability irrespective of directives from superiors.

Ethical Considerations:
Ethically speaking, the issue of compliance with illegal orders is not a straightforward one. Two major ethical theories, deontology and consequentialism, shed light on this issue from two different angles. Deontological ethics, often linked with the philosopher Immanuel Kant, posit that individuals have certain moral duties to act based on specific principles irrespective of the outcomes that may follow. In light of this view, following illegal orders runs counter to these moral duties that stand for upholding justice and respecting human rights - regardless of what the consequences might be.

On the other hand, consequentialism - an ethical theory that judges the morality of actions based on their outcomes - could imply that there are situations where following orders may actually help prevent greater harm. But this method is filled with moral risks; it does not often succeed in rationalizing involvement in unlawful deeds that result in harm or inequity.

Organizational Culture and Psychological Factors:
Rigid hierarchical organizations often develop cultures where the act of questioning authority is frowned upon. This culture can exert pressure on subordinates to obey orders without questions even when they think those orders are unlawful. Research in social psychology like that of Stanley Milgram's obedience experiments shows that individuals will often comply with authority figures due to social pressures and fear of consequences, even when it goes against their ethical beliefs.

Real-World Implications:
Military Context:
In the military, following orders is a fundamental principle that ensures coordination and discipline within the ranks. However, the discussion on blind obedience versus critical thinking has been a topic of interest among military scholars and leaders. On one hand, unquestioning obedience is necessary during combat situations where split-second decisions can be a matter of life or death.

On the other hand, promoting a culture where superiors are always right regardless of the situation can lead to unethical practices being condoned within the organization. It is important for military institutions to strike a balance between obedience and independent thinking among their personnel to ensure both effectiveness in operations and moral conduct.

In the military realm, illegal orders can involve acts such as torture or extrajudicial executions that kill civilians. Soldiers are taught to obey orders; it is necessary for the efficiency of the work and unity in action. However, when the orders are illegal and they do comply with them, this leads to war crimes and violation of others with atrocities.

The My Lai Massacre during the Vietnam War stands as a dark instance where American soldiers were directed to eliminate hundreds of unarmed Vietnamese civilians by their seniors - even though they later became condemned for that incident by many, it also brought out the issues of whether soldiers have moral or legal responsibilities not to follow illegal orders that lead them into perpetrating crimes.

Law Enforcement:
Misconduct within the policing arena could see illegal orders take shape: think evidence fabrication, unwarranted brute force and racial profiling. An eerie compliance might be born from an officer's loyalty to their superior - or worse still, retaliation dread. You may have heard of the term "Blue Wall of Silence"; it symbolizes this unspoken code amidst police officers where one does not blow the whistle on a colleague's slip-ups or misbehaviour, thus weaving a web for impunity to thrive.

Take a closer look at those high-profile cases of police brutality and you'll uncover nuggets where men in uniform towed lines - be it illegal or unethical directives; these were met with public uproar as trust towards law keepers waned even further.

The law prohibits superior officers from issuing illegal orders to subordinates, and subordinates are not obligated to obey such directives. This principle is reflected in government conduct rules, which emphasize the importance of written orders.

Rule 3 of the 1968 All-India Service (Conduct) Rules, applicable to IAS and IPS officers, mandates that directives from superiors should generally be in writing. If oral directions are unavoidable, superiors must confirm them in writing immediately.

Subordinates receiving oral directions must seek written confirmation as soon as possible, and superiors are obligated to provide it. This rule serves as a safeguard against illegal orders being disguised as oral instructions. It discourages superiors from issuing illegal orders, as they would be reluctant to put them in writing.

Even if a superior officer issues a written illegal order, subordinates are not required to obey it. Obedience does not protect a subordinate in court; the written order will not serve as a defence. Despite these rules, subordinates still often obey illegal oral orders, which are rarely confirmed in writing.

Actual Practice:
While international treaties protect subordinate officers from repercussions for disobeying unlawful orders, many comply with illegal directives out of fear of retaliation. This fear stems from the possibility of being subjected to a 'witch hunt,' where superiors seek out and punish disobedience through fabricated accusations. Although such persecution is a risk inherent in the profession, it is preferable to obeying illegal orders. The potential consequences of compliance, including criminal prosecution, far outweigh the minor inconvenience of disobedience.

Corporate Environment:
Illegal orders in the business or corporate realm might entail activities like financial fraud, environmental degradation, or even morally corrupt labour practices. It is not uncommon for employees to oblige these orders out of fear for job security or coercion to achieve certain benchmarks. An example that illustrates this point vividly would be the case of the Enron scandal; here lower-level employees found themselves partaking in illegal accounting malpractices simply because it was a directive from high-ranking officials.

This eventuality spiralled into what is now considered one of the biggest corporate collapses ever recorded in history - bearing tangible outcomes such as massive financial repercussions coupled with legal penalties post-scandal, not to mention an erosion of public trust on corporate governance forever after.

Mechanisms to Address Compliance with Illegal Orders:
To reduce the risk of compliance with illegal orders, organizations can take some steps:
  • Policies and Trainings: Establishing clear policies that define illegal orders and the responsibilities of subordinates in relation to them is a key component. Regular training on legal and ethical standards will help embed these policies into the organization.
  • Protection of Whistleblowers: The protection of whistleblowers who denounce illegal or immoral practices is an incentive for others to follow suit without fear of reprisals; among the legal frameworks that provide this kind of protection is the Whistleblower Protection Act in the United States.
  • Ethics Committee and Hotlines: Independent ethics committees and anonymous reporting hotlines are reliable safe channels through which employees can raise their concerns.
  • Leadership Accountability: It is imperative to hold superiors responsible for giving illegal instructions. This includes transparent probes and taking appropriate disciplinary actions against those who breach legal and ethical standards.
  • Promoting a Culture of Integrity: Organizations need to work towards fostering a culture where ethical conduct takes precedence over mindless compliance. Promoting open discussions coupled with a spirit of critical analysis can help employees find their voice in challenging or reporting illegal orders.

Safeguards for Disobeying Illegal Order of Superior:
Indian Penal Code (IPC) Section 76 states that in a mistaken belief that he is bound by law, a person is not responsible for any act which would otherwise be an offence, if the mistake of fact is the only reason and not the mistake of law. It means that people are immune from criminal liability for acts performed in good faith under the misconception of a legal obligation, although it does not shelter those who follow orders even when aware that they are illegal.

Enacted in 2014, the Whistleblower Protection Act offers a shield to those who dare to stand against corruption and malpractice within the government and public sectors. It stands as a guard against any retaliation and promises the anonymity of the brave whistleblower.

In the Indian Armed Forces, the duties to obey lawful orders and the right to refuse illegal orders are outlined under the Armed Forces Act. Members of the military are taught that it is their duty to recognize orders which are illegal and immoral and then disobey them.

In India, the courts have recognized the principle that individuals should not comply with illegal orders. As an illustration, the Supreme Court of India has decided that a person cannot justify his action of doing something which is not permitted by law merely on the ground that he was following an illegal order.

In the case of R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045, the Supreme Court has held that the superior's direction is no defence in respect of criminal acts, as every officer is bound to act according to law and is not entitled to protection of a superior's direction as a defence in the matter of commission of a crime. So, if a person obeys an illegal order of a superior, he is doing it at his own peril.

Refusal to comply with superior illegal orders presents a number of difficulties that are both legal and ethical, as well as practical. Although it is true that the functionality of hierarchical organizations is dependent on a chain of command, individuals must weigh this against their moral and legal duties. Throughout history, legal doctrines and ethical systems have time and again come in favour for those who go against the wrong commands. So, it is important that an organization develops an ethical culture where issues of ethics are given top priority - coupled with strong reporting mechanisms and holding people accountable - will reduce compliance with bad directions, create justice and build trust within the organization.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly