Remits of the defence of “following superior orders”

The objective of this piece is to explore the extent to which section 76 of the Penal Code, 1860, can protect individuals who merely follow the orders of their superior and apparently have no independence in their decision-making powers, the challenges associated with prosecuting them, and similar provisions from other jurisdictions.
 As per section 76 of the Penal Code, 1860, “[n]othing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law, in good faith, believes himself to be bound by law to do it.” According to the text of the provision, the two issues that need to be considered are the mistake of fact and whether there was good faith or not. The reason behind this is that it often puts the prosecution in a difficult position because the defendant may use section 76 of the Penal Code, 1860 as a defence, claiming that they acted under their superior’s authority, believing to do so in good faith and the same to be justified by law.
Individuals who regularly follow their superior’s commands or believe they are legally bound to do so simply because the order came from someone higher up raise the question of their understanding of the law. They believe they must follow every order from their superior. However, no one is obligated to follow an order that is mainifestly illegal. Therefore, following an illegal order cannot be justified as acting in good faith, and cannot be protected under section 76 of the Penal Code, 1860.
Article 33 of the Rome Statute of the International Criminal Court is instructive here. It states that a person shall be held liable if a crime is committed pursuant to an order from a government or superior, whether military or civilian. However, such a person shall not be held liable if it can be proven that: (a) they were legally obliged to follow the order; (b) the person did not know that the order was unlawful; and (c) the order was not manifestly unlawful. The law also emphasises that committing crimes such as genocide or crimes against humanity under a superior’s order is manifestly unlawful, and no defence can be upheld in such cases by claiming that the person was merely following orders and acting in good faith. Additionally, a reasonable person cannot claim that they did not know orders for committing genocide or crimes against humanity are in fact unlawful orders. Therefore, the defence cannot use the exceptions under Article 33 of the Rome Statute of the International Criminal Court unless it is clear that the defendant honestly and in good faith believed the order was legal, and this belief will still be examined to determine whether the order was objectively (i.e., actually) legal or illegal.
The defence of following a superior’s order, can be traced back to the Nuremberg Trials. Indeed, per the “Nuremberg Defence”, many of the accused claimed that what they did was because of their superior’s command, and it was heavily criticised to the effect that such defence cannot be used to avoid punishment but can only be used as a tool to mitigate the severity of the punishment.
 During the murder trial against four Australian officers in the Second Boer War, where it was claimed in defence that they were acting under their superior’s order, such orders were deemed “illegal orders”, and they were accordingly found guilty. In the case of Dostler, where Anton Dostler claimed that he carried out the execution of prisoners under the command of Adolf Hitler’s Commando Order of 1942, the tribunal explicitly rejected this defence and found Anton Dostler guilty, stating that he carried out illegal orders and should be held accountable for the same.
 For the defence, section 76 of the Penal Code, 1860 protects individuals only if they genuinely or in good faith believes that they are following a legal order and are required by law to act under their superior’s authority. However, considering the Nuremberg Trials, the Second Boer War, and the case of Anton Dostler, where illegal orders were followed, section 76 of the Penal Code, 1860 should not be used as a defence in such circumstances to eliminate punishment, but it may be used to lessen the severity of the punishment, as the superior who gave the order should also be held responsible and accordingly punished. The test is if a person with ordinary prudence and reasonableness believes that such orders are deemed illegal or criminal, and still follows them, then they should be held accountable. It should also be recommended that freshers and those currently working within a hierarchised setting under a superior’s authority be trained to understand the law and distinguish orders that should be followed from those that should not be.
 
Kanny Saha is Barrister-at-Law at The Honourable Society of Lincoln’s Inn and an Associate at Saha & Associates.