This article is written by Pratap Alexander Muthalaly, a student of The Government Law College Trivandrum. This article studies the structure and organisation of military courts in India. It also looks into the various provisions under military law, their validity in the present day and also whether certain laws are being effectively implemented.
The Indian judicial system is one of the oldest in the world. It has a clearly organised hierarchy and structure under which all Indians are covered. A notable exception to this of course are the military personnel. They have a separate system to address disputes. This separate system is an age-old legacy of the British Raj that continues to exist, remaining almost completely untouched by time.
There are arguably several reasons behind the existence of a separate system of adjudication for military personnel and military-related crimes. Firstly, given the nature of the armed forces and the crucial role they play, there is a need for swift and decisive action or punishment. That is, the military cannot afford to be bogged down by the various delays and adjournments that make up the civilian justice system. Speedy trials and predictable decisions are crucial for maintaining order and uniformity and also instilling the necessary discipline that is synonymous with the military. This in turn allows the military to focus on its primary goal, which is ensuring national security.
Furthermore, there are certain offenses that are unique to the military, such as desertion, insubordination, or absence without leave. Given the unique nature of the military and its various legal issues, it is of utmost necessity that there be a separate system of adjudication for them.
- The rules governing the Indian military are mainly enumerated in the Constitution of India.
- Article 33 permits the parliament by law to restrict or abrogate any of the fundamental rights of military men, with a view to maintain discipline and ensure proper discharge of their duties.
- Article 136 and 227 restricts and curtails the jurisdiction of higher judiciary, over orders findings and sentences of court-martial.
Passed in 2007, the Armed Forces Tribunal Act was seen as a landmark piece of legislation that facilitated the formation of the Armed Forces Tribunal (AFT). In accordance with the Act, the tribunal was provided with the power to adjudicate and hear disputes and complaints related to issues faced by members of the services including commission, appointments, enrolments and conditions of service regarding all individuals subject to the Army Act, 1950, The Navy Act, 1957 and the Air Force Act, 1950. Furthermore, it also provided for appeals arising out of orders, findings or sentences of courts-martial held under the said Acts and with similar matters interconnected with it.
Military crimes are primarily handled by the court-martial system. A court-martial is a criminal trial for members of the military who have committed crimes in the earlier mentioned Acts. In India, there are four kinds of courts-martial. These include the General Court Martial (GCM), District Court Martial (DCM), Summary General Court Martial (SGCM) and Summary Court Martial (SCM). In accordance with the Army Act, army courts can try personnel for all kinds of offenses, except for murder and rape of a civilian, which are primarily tried by a civilian court of law.
The investigation process in military law is varied and often depends on the issue in question. A perfect example of an inquiry would be the inquiry carried out by Lt Gen BS Raju into the Galwan valley clash with China.
Another more individual centric case of legal investigation and inquiry would be the case of Major Leetul Gogoi who was caught having illicit relations with a minor girl, in his case too a full flung inquiry was conducted.
Some of the regular elements of a military trial include
- Prepared defence.
- All information conveyed freely and clearly.
- Speedy trial with reasonable duration.
- Independent and impartial trial.
- Right to inspect proceedings.
- Open trial.
Right to appeal
- Pre-confirmation petition.
- Post-confirmation petition.
- Armed forces tribunal.
- Writ jurisdiction of the high courts and supreme courts.
- Powers of the president of India to grant relief by way of pardon etc.
The punishments that can be awarded by Court Martial include:
- termination of employment in the Army.
- Forfeiture of pension and other possible benefits.
- Getting benefits limited to only pension fund.
- Demotion or complete loss of designation.
In spite of all this, the President of India can use his judicial power, (Article 72), to either pardon, reprieve, respite or give remission of punishment or sentence given by a court-martial.
The Indian army has often come under fire for continuing the traditions of the British Raj and not making sufficient effort to keep up with the times and take the necessary steps to amend and modernise its justice process. Keeping that in mind here are some of the deficiencies of the military justice system in India:
There is at present no provision of bail for an arrested military person within the provision of the aforementioned three service Acts. The officer charged is essentially at the mercy of his commanding officer and the authority overseeing his case. While the Supreme Court has clearly laid out the basis on which bail should be granted, these rules and principles are however yet to be made applicable with regard to those military personnels that are being held in custody. Freedom of this nature in granting bail is for all purposes firmly rooted in personal whim, and there is a high likelihood of it being misused and thus, this essentially makes the constitutional guarantee provided under Article 21 redundant.
Trial in Summary Court Martial (SCM)
This mechanism is neither upto the mark nor does it keep with the required standards. This is because, for one, there is no prosecutor and rather intriguing the court takes up some of the functions that are normally provided by a prosecutor in a traditional court of law. Another shocking fact is that the accused is not awarded the right to defend himself with the assistance of a counsel, or any similar entity.
This aspect of the military trial is once again an example of how it stands in clear violation of the provisions enshrined in Article 22 of our Constitution. Moreover, there are violations to Article 21 as well. Basically, the prescribed procedure for this practice does not fall under the ambit of what would be commonly considered as fair or reasonable. All this has resulted in there being numerous instances where the Supreme Court and various high courts across the country have lambasted the decisions made by SCMs. That is, they have often been labelled as being biased, awarding excessive punishment and also being in clear violation of Article 14 of the Constitution.
Legal aid to accused
What is probably the most blaring deficiency of the Indian system of military justice is the absence of experienced legal officers and consuls for the accused. While the military rules allow for the accused to take up the services of a civilian lawyer at his own expense or to avail the services of a defending officer, these provisions are very rarely practiced in reality. That is, it is very rare for the accused to avail of the services of a civilian lawyer at their own expense. Furthermore, service officers are all too often inexperienced and even unwilling to commit to providing counsel for the accused. There is much to be desired in terms of the persisting infrastructure in place. Furthermore, there is little incentive provided to defending officers to essentially help and aid accused persons. The issue is further accentuated by the fact that this task is seen as risky and offering little reward. The result is that cases that come before the court-martial are not adequately defended, which is in direct opposition to the frameworks enshrined in Article 22 of the Constitution.
Members of court-martial
A court-martial established under the ambit of military law plays the dual role of coming through with both the findings and sentence. It is the opinion of experts in the study of military law that members are often lacking in experiences, qualifications and training to fulfill this crucial role. Furthermore, critics point to the prevalence of the highly disturbing phenomenon that is “command influence.” This essentially means that decision making is not necessarily independent or unbiased in the administration of justice. Certain sources claim that members are given detailed instructions from those who pull the strings in the military. Given that the immense risk that is posed from disobeying orders in the military, most officers are swayed to act in a way that is directed to them.
Functioning of the Judge Advocate General (JAG) Department
The Judge Advocate (JA) has no role to play, that is, they neither function as an advocate or as a judge. Therefore for all purposes, any comparison of the JA to the judges in a trial is inaccurate, unless of course in the fact that members of the JAG have to maintain a firmly impartial stance. The JAG department is within the administrative and functional control of the same executive who calls for a trial by court-martial and also later reviews the said proceedings. The quality of advice provided by the JA is central influencing the decision making of the members of the court-martial. In spite of all this, officers of the JAG are not really autonomous and there are definite constraints to their freedom to give a fair and unbiased decision as argued by UC Jha.
The constitutional protection provided against the phenomenon of double jeopardy is clearly enumerated in Article 20(2), while it can be used in a court-martial, the same is not available to stop a second trial on the same offence before a civil court. That is, for example, a person who is subject to the provisions of the Air Force Act, who has once been tried and convicted or acquitted before a court-martial can be tried a second time on the same charges by a court of civil jurisdiction.
Denial of right to appeal
At present, there is no real procedure for appeal in response to the findings or verdict of a court-martial. It is stated in Chapter XII of the AA, specifically Sections 153 to 165, these sections enumerate the current subsisting procedure for what is termed as the ‘confirmation’ and ‘revision’ of court-martial directives. In Section 153 it is said that no finding or sentence of parties like a general, district or summary general, a court-martial can be constituted as valid unless of course it is confirmed as is enumerated in the AA. Next in Section 160, the revision of a finding or sentence of a court-martial via an order confirming a decision is passed.
Similarly, Section 164 is concerned with the confirmation and the remedy that is available to those parties against whom a verdict or sentence has been declared. With regard to a final finding or sentence awarded vis-a-vis a GCM, DCM and SGCM, the remedy that the accused can opt for is specified in Section 164(2), what the provision essentially says is that this can be utilized only once the finding of the sentence is assured or confirmed. The option of seeking remedy is, therefore, for all purposes unavailable to the person on trial prior to the confirmation of the sentence. Also, in addition to this, the remedy is more of a formality and is not carried out to the highest standard. Essentially the aforementioned provision is diluted and for the most part, it takes place behind closed doors where the accused is denied the right of personal representation. As a result, in truth, there is no real option to appeal against a court-martial order.
The Armed Forces Tribunal
The Armed Forces Tribunal is a military tribunal in India. It was established under the Armed Forces Tribunal Act, 2007. While it was initially seen as something that could help greatly revolutionise the military justice system in India. At present it has largely failed to live up to the fanfare and hype. A major problem that the AFT faces is a shortage of the required number of tribunals. As a result of this, there is a lot of delay in the judicial process. Furthermore, there is a serious case of non-implementation of the final orders which could have provided relief to litigants. A majority of the cases coming to the tribunal were against the Union Government, with the ministry of defence as the respondent. It was observed that the relief and remedy ordered by the tribunal to the aggrieved servicemen and veteran were merely on paper due to lack of implementation and compliance by the authorities. A serious lack of adequate contempt power with the tribunals rendered them incapable of getting their decisions implemented.
While the merits of having a separate system to adjudicate military disputes is clear, it is crucial that change be brought about as well. There is a dire need for transparency and also better support and legal aid for the accused along with the obvious changes that need to be brought about in the bail provisions. Another notable area for change is with regard to the armed forces tribunal. The tribunal needs to be given the adequate contempt powers and support to effectively carry through with the judgments that it passes.
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