MILITARY LAWS: FUNDAMENTAL ISSUES

By JusCorpus Blogs February 21, 2023

INTRODUCTION

A country’s defence is a formidable entity that defends the country from external threats. The stronger a country’s defence, the more powerful it becomes, and for that purpose military law comes into play. However, the question now is what the author means by military laws. So, military law is a system envisioned for representatives of the armed forces in general that give them power and controls their behaviour in a certain manner to not only maintain discipline among the rank and file but also to achieve the maximum degree of professional excellence. Moreover, as we all know the Indian Army is the largest in the world. To ensure law and order, the Indian Army Act and Rules were drafted. In India, there are unique laws for each branch of the military. The Army Act of 1950[1], the Navy Act of 1957[2], and the Air Force Act of 1950[3] are some of the common laws and these acts were formulated so that decisions can be taken swiftly and justice can be served but to our dismissal, the main objective of these actions were not accomplished and most of the provisions of these act date back to a colonial period which results in many problems in providing justice to those who put their lives on stake for ours. furthermore, as the saying goes “change is the only constant” the same goes for these laws. Therefore, in this piece, the author will be putting forward his view on the issues with military laws in general and most importantly military justice system.

MILITARY LAWS: AN OVERVIEW

India has rules in place to manage its armed forces. These are the laws that apply to Indian force men and women and they are as follows:

Navy Act: The Indian Navy (Discipline) Act, 1934, which was adopted in compliance with Section 66 of the Government of India Act, 1919, represented the Naval Forces before India’s independence. Later, the statute was superseded by the Naval Forces, which were established in India under the requirements of the Naval Discipline Statute 1866. In 1934, the Indian Navy Discipline Act was enacted after the Maritime Discipline Act was revised. Several constitutional modifications were passed, as well as the Navy Act of 1957.
Army Act: The Army Act, like other legislation in India, was enacted by the British during their reign. The Indian Army Act of 1911 was enacted in the aftermath of the 1857 uprising. When British authority in India ended, the former act, the Indian Army Act, of 1911, was abolished, and new law, the Indian Army Act, of 1950, was enacted. The legislation was introduced with all the necessary amendments based on the scenario. The Army Rules, 1950, were issued in response to the act. The Army Rules of 1950 were eventually abolished by the Army Rules of 1954.
Airforce Act: The Air Force Act, passed around 1950, applies to individuals employed under the Act as well as troops in the Indian reserve force.

MILITARY LAWS AND CONSTITUTIONAL PROVISIONS

Constitutional provisions are the particular terminology and sections in a country’s constitution that apply to the military. These clauses may include the President’s position as commander-in-chief, Congress’ ability to declare war and pay the military, and limitations on the use of military force. Moreover, in the case of the Armed Forces, Parliament does not have unrestricted authority to establish a separate judicial organisation. It must consider the constitutional rights afforded to its residents, which frequently include members of the Armed Forces. However, for them to carry out their tasks properly and maintain discipline among themselves, such basic rights might be curtailed by notifications[4]. Furthermore, limits on various human rights have been imposed on representatives of the Armed Forces in line with Article 33 of the Indian Constitution and it has also been stated by the Supreme Court in judgements such as Ram Sarup vs. Union of India & Others[5], Ous Kutilingal Achudan Nair and Others Vs. Union of India and Others[6], Secretary Ministry Of Defence vs Babita Puniya.

MILITARY JUSTICE SYSTEM: DEFICIENCIES

The system of laws and processes that regulate the armed forces is referred to as military justice (or military law). Many nation-states have distinct sets of legislation that govern the behaviour of their armed forces, while others employ civil law systems. Moreover, most of the armed force act dates back to the colonial period[7] with some alteration and therefore these laws encompass several deficiencies which are as follows:

Bail provision:

There is no option for bail for a military official who has been arrested. Bail may be granted by the superior of military authorities, but it is subject to their authority. The Supreme Court has created a set of uniform principles for granting bail. However, providing bail looks to be unreasonable because it is based on someone’s authority[8].

Double jeopardy:

Article 20(2) of the Indian constitution strengthens constitutional protection against prosecution for the same offence but it is available in the military justice system but not in civil courts to avoid a second trial for the same offence[9]. For example, A person subject to the Air Force Act who has previously been tried and convicted or acquitted by a court-martial may be tried again by a civil court on the same charge.

Trial during a Summary Court-Martial:

Offenders in the military workforce are tried in a Special Court, often known as the Summary Court Martial. Because there is no prosecutor, the SCM trial does not meet the standard of justice established by the Apex Court and the High Courts, and as a result, the SCM exhibits some of the prosecutor’s characteristics and that’s why article 22 of the Indian Constitution is violated when an accused is unable to defend himself with the assistance of a legal adviser or a protection officer[10]. SCMs have been severely chastised by the Supreme Court and other courts for failing to meet inequitable and reasonable sensitivity criteria.

No right of appeal:

Convicted persons have no right to appeal to a higher court. According to the Military Act, a person who is distressed by a court-military judgement or punishment may request the central government, the head of the military, or any recommended high official in charge[11].

Members of Court Martial:

A court-martial determines both verdicts and sentences under military law. Members are untrained in the administration of justice and lack legal training. In actuality, previous experience has shown that court martial duty is given to the most disliked commanders in a military location. During a trial, they are subject to varied degrees of “command influence” and cannot exercise perfect freedom. Almost always, the members are chosen from the command whose commander-in-chief authorises the court-martial. He chooses the principal court martial officials and oversees their service careers. Even if he does not try to influence the officials directly, they function under the “command influence”[12].

SOLUTIONS

Members of the court martial should go through rigorous training that includes not only textual information but also practical expertise. Furthermore, the member must be able to comprehend the accused’s argument and position before proceeding with the declaration while using his entire intellect.
The accused should have the right to appeal because seeking permission from higher authorities can cost someone their life because these authorities can be biased at times.
The supreme court’s uniform guidelines for granting bail should be followed because these guidelines serve as a basic structure while performing the said task.
Instilling information in armed forces about crimes and how to avoid committing them, because armed people are often penalised due to a lack of understanding.
As society and conditions change at a rapid speed, reforms and amendments to current laws should be made more regularly.

CONCLUSION

Military justice regulations control the Indian Army’s position in times of war and peace. These take the shape of Statutes, Rules, or Regulations. Aside from service rules, it is a written code that has undergone frequent changes and assessments. Army forces are subject to a legal system distinct from the ordinary court system. The legal and judicial procedures of the armed forces were meant to be relatively quick in execution to maintain uniformity and minimise long periods of absence. As a result, no appeal mechanism has been established, as in the civil system. As veterans of the armed forces, about 1.5 million Indians are subject to the armed justice system. This party still refers to a judicial system built and maintained after the 1857 Mutiny to protect the Indian colonial rulers’ well-being. The military justice system in our nation is seldom questioned—the impression that it is about maintaining the institution, referring to it as “time-tested,” is generally neglected[13]. Furthermore, military interests are cloaked in secrecy. In terms of the rights of the accused and human rights standards, there is a definite trend of change in the world’s military court system. So, it’s past time to address all of these issues and administer true justice to our nation’s guardians.

Author(s) Name: Tarang Arora (Maharashtra National Law University, Nagpur)

References:

[1] https://indianarmy.nic.in/writereaddata/documents/ARMYACTS190216.pdf

[2] https://www.indiacode.nic.in/handle/123456789/1400?sam_handle=123456789/1362

[3] https://legislative.gov.in/sites/default/files/A1950-45.pdf

[4] https://www.jetir.org/papers/JETIREW06078.pdf

[5] Ram Sarup vs. Union of India & Others, AIR 1965 SC 247

[6] Ous Kutilingal Achudan Nair and Others Vs. Union of India and Others, AIR 1976 SC 1179

[7] https://getlegalindia.com/army-act-1950/#:~:text=India%20has%20its%20military%20laws,apply%20to%20different%20defence%20services.

[8] https://usiofindia.org/publication/usi-journal/military-justice-system-in-india-2/

[9] https://www.legalbites.in/topics/articles/military-justice-system-in-india-356768

[10] https://www.ijlmh.com/paper/overview-of-indian-military-justice-system/