This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses the military justice system in India, its definition, origin, defects, reforms and the Armed Forces Tribunal.
Military justice (or military law) is the body of laws and procedures for the armed forces. Many nation-states have separate and distant law bodies that govern the conduct of the members of their armed forces. Some states use special legal arrangements and other arrangements to enforce such laws, while others use civil law systems. Legal issues unique to military justice include the preservation of good order and discipline, the lawfulness of orders, and military members’ proper conduct. Some states allow their military justice systems to deal with civil offenses committed by their armed forces under certain circumstances.
Military justice is distinct from martial law, which is the imposition on a civilian population of military authority as a substitute for civil authority, and is often declared in times of emergency, war, or civil unrest. Most countries limit when and how martial law can be declared and enforced.
Definition of Military Justice
It is defined as the body of laws and procedures that regulate the conduct and governance of armed forces members. Different countries have separate and distinct law-making bodies specifically designed to govern the respective countries armed forces. While some countries use different and separate judicial bodies and arrangements to administer justice, some countries use civil justice systems.
Origin of Indian Judicial System
Indian justice is one of the oldest legal systems in the world. Inherited from the legacy of the legal systems established by the British rule in India since the 19th century, it includes a common law legal jurisdiction system consisting of customs, precedents, and laws. At the highest level, the judiciary has a set hierarchy with the Supreme Court, followed by the respective high courts and district courts at the district level.
Military Justice in India
India has its own Army Act, the Air Force Act, and the Navy Act. These laws define the statutory provisions as being applicable to men and women in uniform. All these three Acts can be found on the official website on search. In India too, there are certain para-military forces that have laws similar to those that apply to defense services. This includes the Border Security Force Act, the Coast Guard Act, the Border Police Force Act of Indo-Tibet and the Assam Rifles Act. All of these acts are inspired by the Army Act.
The British had developed the system of military justice to “discipline” India’s people after the Mutiny of 1857. It is the basis for the 1950 Indian Army Law, the 1957 Navy Law and the 1950 Air Force Law. Before being adopted by independent India, only a few changes were made to the British laws.
For different reasons, the need for a separate justice scheme for the armed forces arises. Military functions require rapid decision-making. This can not be accomplished through discussions and debates. The subordinates carry out the orders of a commander. That’s why all military forces have a fixed hierarchy system. This puts all people in their position that is clearly designated. Military justice provides a catalyst for cultivating an unquestionable obedience habit by posing the threat of penalizing disobedience. Moreover, since the armed forces are not a deliberative body and have developed their own laws and traditions that recognize unique military offenses such as desertion, disobedience of orders, absence without leave, dereliction of duty, etc.
Defects in the Indian Military System
Together with the other acts of the different armed forces, the Army Act reflects the old justice system prevailing in British times and is therefore ridden with defects. Removing these defects is of utmost importance before they plague or deliver the system of military justice. Some of the shortcomings are:
- Right to bail- An arrested military person has no bail provision. The commanding officer or the superior military authority may decide to grant it on the basis of their discretion. The apex court has established the principles on which bail should be granted, but granting bail at somebody’s discretion is arbitrary and unreasonable and makes Article 21 of the Constitution meaningless.
- Military rules do not allow an accused to obtain a civil lawyer to defend him or to be defended by a military officer known as the defending officer. The lack of legal aid services is a serious infringement of Article 21.
- Trial in a Summary Court-Martial- Trial of accused military personnel is held in a special court known as the Summary Court Martial. The SCM trial does not match the levels of justice set by the apex court and various high courts simply because there is no prosecutor and the SCM performs some of the functions of the prosecutor themselves. Serious infringement of Article 22 occurs when the accused can not defend himself with the help of a lawyer or a defense officer. SCMs have been severely criticized by the Supreme Court and High Courts for failing the just and fair reasonableness test.
- Double Jeopardy- Article 20(2) enshrines constitutional protection against double jeopardy. It is available in the military justice process, but this protection is not available before a civil court to prevent a second trial on the same offense.
- No right of appeal- There is no provision for the accused to appeal in a higher court. Section 164(2) of the Army Act states that a person who considers himself grieved by a finding or sentence of a court-martial may file a petition with the central government, the chief of the army or any prescribed superior officer in command of the person who confirmed the finding or sentence, and the central government, the chief of the army or any other officer may pass such orders as the case may be. This remedy is therefore not available to the accused before the sentence is confirmed. This remedy is also just a paper exercise and occurs in closed rooms where the accused does not have the right to personal representation. There is virtually no right of appeal against the court martial’s order.
- Members of Court Martial- Members are not trained to administer justice either legally qualified or not. They are under the different commanding influence and do not exercise their judgment completely independently in a trial.
Reforms in the Military Justice System
A large number of cases that have been brought before the higher civil courts shows that the armed forces’ justice delivery system has been moving at a very slow pace and has not been able to fulfill men’s aspirations in uniform. The total number of legal cases challenged by the Ministry of Defense and the headquarters of the armed forces is more than a lakh.
The system of military justice was found antiquated and out of step with the Constitution’s liberal spirit. There is a need to strike a fair balance between a democratic society’s pressures and military discipline’s requirements. The military justice system of India has its origin in England’s military laws. After the Mutiny of 1857, it was made by the British to govern natives and has some major flaws. They are-
- No bail shall be granted to the arrested military person on charges.
- Insufficient legal assistance to the accused during the courts-martial.
- The court-martial chairman and members shall be subject to considerable influence by the convening officer.
- The department of Judge Advocate General shall be placed under the administrative and functional control of the same executive.
- No appeal is lodged against the finding and sentence of a court-martial.
- The double-hazard constitutional protection provided for in Article 20(2) is not available to Air Force personnel to prevent a second trial before a civil court.
- The trial of a summary court-martial does not comply with the recognized standard of justice because there is no prosecutor and the court does not comply with it.
In the field of human rights, judicial activism has generally kept clear the terms of service of aggrieved military personnel as well as the justice of the courts-martial. There are glaring deficiencies in the safeguards granted to the accused and the attitude of those administering the military justice delivery system. The justice system is considered part of the executive department and in fact, is simply an instrument of executive power to enforce force discipline.
It will not be correct to say that there is no need to reform the law since the number of people affected by military law is small or the members of the armed forces have voluntarily submitted to the existing system with all its flaws. The armed forces justice system should adopt a procedure that is not only open and objective but also aims at a liberal interpretation of the principles of natural justice. While the primary purpose of the military justice system must always be to maintain discipline within the organization, the focus must be on organizational effectiveness rather than punishing or protecting individual actions.
The wartime experiences of the United States and the United Kingdom’s specified the desirability of making the armed forces members’ rights and responsibilities ascertainable by reference to a single statute. In the U.S. has led to the adoption of the Military Justice Uniform Code.
The Armed Forces Tribunal in India
Since August 2009, the Armed Forces Tribunal and its Benches (each judicial and administrative member) have been operating. It has original jurisdiction over matters relating to service and appeals court-martial jurisdiction. In the last 5 years, 5,500 cases have been decided. The Tribunal is unable to execute its orders through civil contempt. An appeal may be brought before the Supreme Court of India against the Tribunal’s order. An amendment to the AFT Act 2007 to give the resentment of the armed forces in 2012 to civil contempt.
The AFT has no civil contempt authority. The Armed Forces Tribunal(AFT) has no jurisdiction in grievances concerning leave, posts, transfers, summary disposals and trials. A large number of cases have occurred in which the military or government has failed to take action on the Tribunal’s decisions. In its present form, the Indian military legal system is a hangover from a time when the battlefield was so far removed from the normal world that the armed forces had to be self-contained. Over the past two decades, the world has moved forward and major changes have occurred in other democracies’ military justice systems. It is time we reinforced our system and restored public confidence in the quality of military justice.
Military law provisions govern the role of Indian Army during peace and war formulated in the form of Statutes, Rules and Regulations. It is a written code which has seen periodic changes and review, apart from conventions of service. Individuals of the armed forces have their own justice system that is quite different from the common justice system. The legal and justice system of the armed forces was designed to be relatively swift in execution in order to maintain discipline and avoid the long absence of military and military duties from officers and men. The system of appeals has therefore not been included in the military justice system, as it is in the civil system.
As members of the armed forces, more than 1.5 million Indians are subject to the military justice system. This group still applies to a legal system designed and implemented after the Mutiny of 1857 in the name of discipline to serve the interests of colonial masters on Indians. In our country, the military justice system is rarely criticized- the notion that it is about defending the system, calling it ‘time-tested’ is generally ignored. In addition, a veil of secrecy is drawn on military matters. There is a clear trend of change in the world’s military justice system in terms of the accused’s rights and human rights standards.
Some important elements of this change are the independence of judges, the establishment of standing courts, the right to legal representation and the increased right of the accused to choose a trail instead of summary procedures, the deficiencies of the Indian military justice system and human rights limitations must be provided by law and should be consistent with international treaty obligations.