Military Justice– defined as the body of laws and procedures regulating the conducting of and governing the members of the armed forces. Different countries have separate and distinct bodies of law which are made specially to govern the armed forces of the respective countries. While some countries use different and separate judicial bodies and arrangements to administer justice, some countries use the civilian judicial systems.
The Indian judicial system 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 encompasses a common law system of legal jurisdiction consisting of customs, precedents and legislations. The judiciary has a set hierarchy with the Supreme Court at the highest level followed by High Courts of respective states and District Courts at the district level.
You might have seen Bollywood movies showing ‘court martial’ scenes where the army officer is shown being stripped off his precious badges and stars. You must have wondered why are the army officers not presented in a proper court with lawyers fighting from each side and a judge profusely banging his gavel calling out ‘order order’. This is because the people of the armed forces have their own justice delivery system which is quite different from the common judicial system.
Military Justice in India- India has a separate set of rules for the armed forces contained in Army Act, Navy Act and Air Force Act. Laws in those acts define the statutory provisions applicable to all men and women in uniform. Certain para-military forces also have their own laws such as the Border Security Force Act, Coast Guard Act, Indo-Tibetan Border Police Force Act and the Assam Rifles Act. The British had developed the military justice system in order to ‘discipline’ the people of India after the 1857 mutiny. It forms the base for the Indian Army Act, 1950, the Navy Act 1957 and the Air Force Act 1950. Only a few changes were made in the British laws before being adopted by independent India.
The need for a separate scheme of justice for the armed forces arises because of various reasons. Military functions require quick decisions to be made. This cannot be achieved by deliberation and debates. A commander’s orders are carried out by his subordinates. This is why all armed forces have a fixed system of hierarchy. This puts all people in their clearly designated position. Military justice provides a catalyst for cultivating a habit of unquestioning obedience by presenting the threat that disobedience will be penalized. Also, since the armed forces is not a deliberative body and has developed its own laws and traditions recognizing unique military offences like desertion, disobedience of orders, absence without leave, dereliction of duty, etc., military justice has been separated.
Defects in the Indian Military System-
The Army Act along with the other acts of the various armed forces reflects the old system of justice prevalent in the times of the British and hence is ridden with defects. It is of utmost importance to remove these defects before they plague or military justice delivery system. Some of the defects are:
- Right to bail– There is no provision of bail of a military person who has been arrested. The commanding officer or the superior military authority can decide to grant based upon their discretion. The apex court has laid down the principles on which bail has to be granted but granting bail at someone’s discretion is arbitrary and unreasonable and renders Article 21 of the Constitution meaningless.
- Legal aid services to the accused– Military rules do not permit an accused to get a civilian lawyer to defend him or to be defended by a military officer known as the defending officer. The absence of legal aid services is a serious violation of Article 21.
- Trial in a Summary Court Martial (SCM)- Trial of accused military personnel is in a special court known as Summary Court Martial. Trial by the SCM does not match the levels of justice set up by the apex court and various high courts simply because there is no prosecutor and the SCM itself performs some of the functions of the prosecutor. A serious violation of Article 22 occurs when the accused is not allowed to defend himself with the help of a counsel or a defending officer. The Supreme Court and High Courts have severely criticized SCMs for failing the test of just and fair reasonableness.
- Double jeopardy– The constitutional protection against double jeopardy is enshrined in Article 20(2). It is available in the process of military justice but this protection is not available to prevent a second trial on the same offence before a civil court.
- No right of appeal– No provision available to accused to appeal in a higher court. Section 164(2) of the Army Act says- ‘Any person who considers himself aggrieved by a finding or a sentence of a court martial may present a petition to the central government, chief of the Army staff or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the central government, chief of Army staff or other officer, as the case maybe, may pass such order thereon as it or he thinks fit.’ So, evidently, this remedy can be put to use only after the finding of the sentence has been confirmed. Thus, this remedy is not available to the accused before the confirmation of the sentence. Also, this remedy is just an exercise on paper and takes place in closed rooms where the accused has no right of personal representation. Practically there is no right of appeal against the order of the court martial.
- Members of court martial– Members are neither legally qualified not trained to administer justice. They are under various commanding influence and are not completely independent in exercising their judgment in a trial.