This article is written by Sushant Kandwal, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

The Army, Air Force, and Navy is collectively known as the Armed Forces which are highly organized forces and specially designed for carrying out battles, protecting the states from the threat of external forces and other special operations. It is highly maintained and authorized by the respective sovereign state with its members having a separate military uniform.  It may consist of one or more military branches such as the space force or coast guard etc. Very often the words “armed forces” and “military” are viewed as synonymous to each other; however, a distinction is made in terms of their application as “armed forces” can include both the security and paramilitary military forces.  In India, the “armed force” is referred to as “forces” under Section 3(Xi) of the Army Act, 1950 [1] which includes the regular Army, Navy, and Air Force. In this article, we will be discussing the immunities available to the members of the armed forces, its types, and the manner in which the court proceedings take place.

Origin

The immunities granted to the Armed Forces Personnel can be traced back to their roots from the doctrine of sovereign immunity.  The “doctrine of sovereign immunity” states that every state exercises sovereign power in its territory, and it is based on the maxim “rex non potest peccare” which means a king can do no wrong. Earlier, the king was not liable for the wrong committed by its servants but in England, this doctrine has been amended by the Crown Proceeding Act, 1947. The aforementioned doctrine is necessary for the existence and functions of the state. However, the state should follow the following conditions:

1. The employees of the state must exercise the sovereign functions legally. If they violate the law, their activity cannot be treated as an act of sovereign function, and the state shall be held responsible.
2. Maintenance of law and order services of defence forces, administration of justice etc. are considered to be sovereign functions.
3. The state is liable for the tort committed by its servants while exercising the non- sovereign function. The state is not liable for the tort committed by its servants while exercising the sovereign function.

In the case of Kasturi Lal V/s State of UP 1965 AIR 1039, 1965 SCR (1) 375

Facts: The Appellant went to Meerut on 20-09-1947 to sell gold and silver, the police suspected that the Appellant was carrying stolen gold and arrested him; seized 103 tolas and 2 mounds of silver. He was kept under police custody. On the very next day, he proved himself innocent before the Court. Meanwhile, Head Constable Mohd. Amir misappropriated the gold and fled to Pakistan in Oct 1947, but silver was returned to the Petitioner.

Held: The Apex Court gave the judgement in favour of the state that it was not liable to give the compensation to the Appellant, treating the act of the police was sovereign in nature and hence, the Appellant is not entitled for the compensation.

In order not to reject legitimate claims, the Indian courts in the current circumstances proceeded to narrow the spectrum of sovereign functions so that the plaintiffs can obtain compensation for the damage suffered by him due to the tortious act of the government servant. The Law Commission of India also recommended the abolition of this obsolete doctrine in its very first report. However, for different reasons, the plan for a bill to abolish this doctrine has never been passed and it has therefore been left to the courts to rule on the conformity of this doctrine under the Constitution of India.

Immunities to armed forces personnel

The Article 300 of the Constitution has its origin in S. 176 of the Government of India Act, 1935 whose roots can be traced back to S. 32 of the Government of India Act, 1915 and S. 65 of the Government of India Act, 1858 which states that the state is liable for every non- sovereign function performed by its agents or entities while exercising the sovereign powers.

Further, the first part of Article 300 of the Constitution of India relates to the manner in which the proceedings against the government may be instituted. Whereas, the second part of Article 300 provides that the state may sue or may be sued, if the Dominion of India may be in any of the cases then it shall be substituted with the Union of India. 

Types of immunities available to the armed forces personnel

The immunities available to the armed forces personnel depend upon the circumstances of the case; to understand this we will classify the immunities into two types Criminal and Civil.

• Immunities available while performing the duty

The Armed Forces Personnel has several powers under the “AFSPA” (Armed Forces Special Powers Act, 1958) in an area that is proclaimed as “disturbed”, the officer of the armed forces has power and immunities available to them u/s 4 of the Armed Forces( Special Powers) Act, 1958 to discharge their duties under the Act are:

1. Armed Forces have power to shoot down the person who is acting against the law and order.
2. Destroy any arm places, hideouts etc. of the armed gangs and the absconders wanted for any offence. 
3. To arrest anyone without warrant who has committed any cognizable offence.
4. To enter, search any premise and seize any arms, ammunitions and explosive articles.
5. Stop and search any vehicles.
6. Arrested person must be produced before the charge of the nearest police station without much delay.

Armed Forces Personnel have legal immunities for their actions against the prosecutions, suit or any other proceedings against anyone acting under the law. However, all the afore-mentioned powers provided to the Armed Forces must be exercised judicially and in a good faith. 

Recently, the Apex Court in its judgement on Extra Judicial Execution Victim Families Association (EEVFAM) V/s Union of India & Anr held that no blanket immunity will be available to the armed forces personnel for the unjustified death. Further, the apex court held that there is no concept of absolute immunity, if an offence is committed by the armed forces personnel they will have to face Criminal Trial under Criminal Procedure Code.

• Immunities available off- duty

The Personnel of the armed forces also entitled for the civil remedies like:

• Immunity from attachment

According to Section 28 of the Army/ Air Force Act, no arms, clothes, equipment, accoutrements, necessaries, or animals used by any person for the performance of his duties may be confiscated nor can his pay, allowances, or any part thereof may be attached by the direction of any civil or revenue court or revenue officer to the satisfaction of any decree or order that may be enforced against him.

• Immunity from arrest for debt

According to Section 29 of the Army/ Air Force Act,  any person who belongs to the armed forces is not liable to be arrested under any process issued by the authority of any civil, revenue court or revenue officer. In case, if an arrest is made then the revenue officer may discharge such person by awarding reasonable costs to the Complaint concerned on receipt of a complaint by such person or his superior to that effect. Costs can be recovered in the same way as if they had been awarded by a decree against the individual obtaining the processes and no court fees are required to be paid for the recovery of such costs.

• Immunity of persons arresting court-martial from arrest

U/s 30 of the Army/ Air Force Act, 1950 no presiding officer or member of a Court-martial, no Judge advocate, no party to any proceedings before a Court-martial, or his legal practitioner or representative, and no witness acting in obedience to a summons to a Court-martial while proceeding or returning from the Court-martial, may be detained in civil or revenue proceedings. If such a person is arrested under any such practice, he can be discharged by order of the Court-martial.  

Privileges

Armed Forces Personnel are also entitled for the privilege when it comes to litigation as explained below:

• Priority in respect of litigation

According to S 32 of the Army/Air Force Act, 1950 any person of the armed forces is subject to obtain the certificate from the proper military/ Air Force authority to grant leave of absence or the leave applied by him to prosecute any suit or defend any such suit. The Court shall on the application of such person may keep it for the hearing and final disposal of suit within the period of the leave so granted. If in case the question arises of proper military/ Air Force authority qualified to grant the aforementioned certificate is:

1. Any officer equivalent status to that of Brigadier or commander in the case of military personnel;
2. In case of Air Force Personnel any officer having equivalent power to that of Group Commander or equivalent commander.

• Speedy disposal of cases

Civil courts should dispose of all suits for prosecution or defense, of officers, soldiers, or reservists who have received leave of absence as quickly as is compatible with the administration of justice, irrespective of the order in which they are recorded.

• Priority certificate and leave extension by court

Where an individual subject to the Army Act, 1950, or the Air Force Act, 1950, obtains or applies for leave of absence for the purpose of pursuing or defending a civil suit, he shall obtain a certificate from his Unit Commander to allow him to obtain a priority hearing (I.A.F.D. 902). This certificate must be delivered to the Court by him in person. If the case cannot be determined within the time of leave given, the civil officer concerned will grant leave for such duration as will be given upon receipt of a reply to a request to the Commander of the Unit for the requisite extension of leave. The civil officer shall at once submit to the Commander of the Unit any grant of leave approved by him.

Person entitled for the aforementioned privilege

S. 2 and 31 of the Army and Air Force Act, 1950, provides the list of persons entitled for the aforementioned privilege are:

1.  Junior Commissioned officers, Officers and Warrant of the regular army and Air Force;
2. Personnel enrolled under the Army and Air Force Act;
3. Indian Reserved Force, Air Force or the Personnel belongs to these categories are called out for, or engaged in, or returning from training or service;
4. Indian Supplementary Reserve Forces Personnel when carrying out the annual test; when called out for service;
5. Territorial Army officers while performing their duty;
6. Territorial Army Personnel while embodied or attached to any regular forces;
7. Persons holding commands in the Army in India Reserve of officers and officers assigned to the Regular Reserve of Officers when ordered to perform any duty or service for which they are liable;
8. Indian Air Force Volunteer Reserve Personnel as per the circumstances specified in Section 3 of the Indian Air Force Volunteer Reserve (Discipline) Act, 1939 (XXXVI of 1939). 
9. Persons are not otherwise subject to the law of the Army / Air Force who, on active service, in a marching camp or at any border post defined by the Central Government, are employed by or in the service of or followers of any part of the Regular Army Air Force.    

Filing a suit against armed forces personnel

The Civil Procedure Code, 1908 will be applicable for the institution of suit against the members of the armed forces, since, the scope of our article is confined to filing suit against the members of armed forces. Hence, we will only discuss the filing of civil suits against the members of the armed forces. Procedure for the afore-mentioned Civil Procedure Code is explained below in details: 

District court procedures

• Institution phase

• Institution of suit (Order IV)

Every suit is commenced when the Plaintiff files a plaint to the Court. Plaint is filed as a pleading. Contents of the Plaint include details of the parties, Cause of action, Subject matter of the dispute and Reliefs claimed.

• Issue and service of summons (Order V)

Once the suit is registered, summons are sent to the Defendant to appear in court on a specified date. The summon is accompanied by plaint as well.

• Appearance of defendant (Order IX, Rule 1)

The Defendant needs to appear in the court either personally, or through a representative on the date mentioned in the summons. If the summons was for final disposal, then the Defendant needs to present evidence, documents, and any witnesses to support his case.

• Written Statement/ set-off/ counterclaim by Defendant (Order VII)

The Defendant needs to submit a written statement on or before day of appearance. The Defendant can also claim a set off or counterclaim in his written statement.

• Replication/ Rejoinder by the Plaintiff

The Plaintiff may file a written statement against the counterclaim called replication or rejoinder.

• Examination of parties by Court (Order X)

On the first hearing the court will ask each party whether the allegations are true or false. This can be asked orally by the judge. This response is recorded by the judge in writing.

• Framing of issues (Order XIV, Rule 1)

At the first hearing of the suit court frames the issues pertaining to the suit. Issues arise when the allegations of a party are denied by others.

• Trial phase

• Evidence and cross-examination of plaintiff

The Plaintiff has the right to begin, and will be cross-examined by the Defendant’s lawyer.

• Evidence and cross-examination of defendant

The Defendant will also present his side of the story supported by the witnesses and evidence from his side. The evidence needs to be marked earlier by the court, otherwise it will not be considered by the court. The Plaintiff lawyer will then cross-examine the Defendant.

• Final argument

Once the evidence has been submitted and cross-examination is conducted by the Plaintiff and Defendant, both sides are allowed to present a summary of their case and evidence to the judge in the Final argument session.

• Judgment phase (Order XX)

After the final arguments, the Court may give the judgment on the same day or may adjourn the court for a further date.

Difference in the process

In the above- mentioned paragraphs we have already discussed the immunities, types of immunities available to the armed forces personnel and the procedure for filing Civil suits against them. However, there is a little difference which is addressed below:

• Service of processes: The summons process is mentioned in Order V Rule 28 for servicing summons to soldiers, sailors or airmen. Rule 28 of Order V states that the summons of service shall be sent to the Commanding Officer along with the Copy to be retained by the Defendant.

Conclusion

The suit filing process against the armed forces personnel is same as that of regular suit but the only difference is of the service process and the privileges as already discussed in the above paragraph.

References

• https://www.mod.gov.in/sites/default/files/TheArmyAct1950.pdf
• https://indiankanoon.org/doc/1199558/
• http://legislative.gov.in/sites/default/files/A1958-28.pdf
• https://www.mod.gov.in/sites/default/files/AFAct.pdf
• http://legislative.gov.in/sites/default/files/A1950-46.pdf
• https://indiankanoon.org/doc/83144198/

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