Col J P Singh, Retd
The legal and justice system in the armed forces was designed to be comparatively swift in execution in order to maintain discipline and avoid long absence of officers and men from military and combat duties. Hence system of appeals, as it is in the civil, was not included in the military justice system. Indian military law, as shown by abundant historical evidence, is a direct import from British military law which was first applied to the guards enrolled for the protection of the factories or the trading posts established by East India Company at various places in India in the 17th century. Gradually from these guards emerged Company’s European and Indian troops. Govt of India Act 1833 came as landmark legislation in the history of British Indian military law. It gave powers to the Governor General to legislate for the entire native army officers and men wherever serving. Absence of even one appeal to seek review of conviction or punishment is a glaring lacuna in the military judicial system when a civilian counterpart convict in the country can prefer appeal after appeal to the hierarchy of courts and constitutional authorities. Hence military justice system is considered retrogressive and retributive by some legal researchers. Public also considers it very harsh. Hence an effort to clear the mist.
In the system of military law, a commanding officer occupies important position. Unlike the civil, a commander in the military exercises the discretion in deciding how to dispose off a legal case and how an offender should be punished. In the civil sometimes media dictates how the case be investigated, (by SIT, CBI, CID, Crime Branch, HC/SC monitored SIT) and trial is conducted more by public perspective than legal perspective. In the Armed forces also number of options are available to a commander for handling disciplinary problems, such as; (a) No Action. A commander has the discretion not to initiate any action against an alleged offender. (b) Administrative Action. A commander may decide to take an administrative action against the offender rather than initiating a punitive action. (c) Summary Action. In this case a commander disposes off a military offence by resorting to a judicious trial conducted by him himself. The punishment awarded depends upon the rank of the commander awarding punishment and the rank of accused receiving punishment. The accused in this case has not been granted any right to appeal against the punishment. This is mainly so because the punishments awarded in summary trials are invariably of minor nature and facilitates maintenance of discipline in the units. (d) Court Martial, ie, send the case for trial by military court. There are four types of courts martial (i) Summary Court Martial (SCM) (ii) District Court Martial (DCM) (iii) Summary General Court Martial (SGCM) and (iv) General Court Martial (GCM).
A military court is called ‘court martial’. Trial of a soldier in a military court is also called court martial. Court martial deals with the members of the armed forces who break military law. Court Martial comprises of military officers who may not have any training or experience in conducting trials. A Judge Advocate General (JAG) of a rank of Maj/Lt Col is detailed to the court martial as advisor to the court on legal matters but he is not a member of the bench. The prosecutors and defence councils are also military officers of middle ranks who are also not trained in conducting criminal trials. Hence the question marks on the delivery of justice!
SCM differs from other Courts Martial. SCM as it exists in the army was started by British after the 1st war of independence 1857 which British called mutiny. British did not have it in their own army. It does not exist in our Navy and Air Force. It is unique to the army and unique in many ways. A Commanding Officer of a unit is himself the convening authority and the Judge. It is convened to try an act of indiscipline or criminality against junior ranks upto a Havildar. Maximum punishment awardable in SCM is imprisonment upto 1 year. Unlike other courts martial, the verdict of SCM is not required to be confirmed by any superior authority. It is carried out forthwith. Other Court martial differ in the procedures, rights of the accused, and the quantum of punishment that can be awarded by each. In case of an offence of serious nature, a commander can take course of court martial to dispose off an offense if the offence is serious enough to warrant a trial by a military court.
Before independence the Armed Forces were governed under Indian Army Act 1911, the Indian Air Force Act 1932 and the Indian Navy Discipline Act 1934. Hence British military law is the progenitor of Indian Military Law and hence the legal and justice system of the past continued after independence. After the independence, three separate acts came into force for the governance of three services. The Army Act 1950 was passed by the Parliament on 22 May 1950 and came into effect on 22 July 1950. Indian Army Act 1950 was complied in a book called ‘Manual of Indian Military Law’ (MIML). It was updated and reprinted in 1961, 1967, 1971 and 1976. In 1983, MIML was reprinted bilingually into three volumes. Armed Forces Special Powers Act (AFSPA), the Rights to Information Act 2005 and the Armed Forces Tribunal Act 2007 was added in volume III of the MIML and reprint published in 2011.
The Air Force Act 1950, passed by the Parliament, came into effect on 22 July 1950. The Army and the Air Force Acts were virtually a continuation of Indian Army Act 1911 as no procedural and other reforms were made in these Acts. But the Navy adopted reforms suggested by the Pilcher Committee. The Navy Act 1957 was passed by the Parliament in 1957. Under the provisions of Section 191 of the Army Act 1950, the Army Rules 1954 were framed an enacted. Army rules are procedural laws, like code of criminal procedure. In addition there are Regulations for the Army 1962. Since years back need was felt for a proper review and revision of existing laws and acts. They have been updated and revised as Regulations for the Army 1987. Certain provisions of the Regulations, especially procedures relating to Statuary Complaints, in para 364 of the regulations were amended in 1997. Revised Air Force Act was published in two volumes. Volume I contains Air Force Act 1950 and volume II contains Air Force Rules 1969, extracts from Constitution of India and other related legislations.
Military justice system of US and UK is far superior to their civilian justice system in the matters of rights of the convicted military personnel. After conviction a soldier has three levels of appellate (i) Appellate Court for Armed Forces, (ii) civil courts of appeal and (iii) the United States Supreme Court. The convict is entitled to appeal and the appellate defence council is provided free of charges. In UK, a convicted soldier may appeal in ‘Court Martial Appeal Court’ against the sentence awarded by court martial. The Court Martial Appeal Court is part of the judiciary and hence independent of govt or Armed Forces.
In the civil justice system the universally accepted dictum is that justice should not only be done but it must seem to be done. The same should hold good in case of military trials. But in military trials, judge and the accused don the same uniform, have the same sense of discipline and have a strong hierarchical character. A feeling of bias in such circumstances is considered but natural. Hence atleast one review of the decisions of military trials by way of appeal to an appellate court, composed of non military jurists should be afforded in the justice system to the armed forces personnel was felt by legal fraternity. Hence Armed Forces Tribunal (AFT) Benches were raised in almost all the large military stations.
Military law, from its early origin and historical association, through many wars, is known for its simplicity and strength, its inflexible discipline, its scrupulous regard of honour and its reforms in the time of peace. It has not been a popular subject of hot pursuits of legal researchers but off late it has attracted a sizeable number of scholars to pursue a legal research on the military law. They have found that military justice is a system of a law created to enforce certain standards of behavior some of which are identical to standards enforced in civil life. These standards have importance in maintaining discipline in the armed forces and public respect for such forces. I conclude this historical introduction of military legal and justice system by quoting Col William Winthrop, “there is a military code of greater age and dignity and a more elevated tone than any existing American civil code, as also a military procedure which, by its freedom from technical form and obstructive habit that embarrass and delay the operations of civil courts, is enabled to result in a summary and efficient administration of justice well worthy of respect and imitation”.
Col J P Singh, Retd