Military justice is the body of laws and procedures that governs the soldiers’ personnel. Many nations have separate and distant law bodies that govern the conduct of their soldiers. Legal issues that are unique to military justice include the preservation of excellent order and discipline, the lawfulness of orders, and military members’ proper conduct. A number of the states allow their military justice systems to affect civil offenses committed by their soldiers under certain circumstances.
Military justice is distinct from law, which is that the imposition on a civilian population of military authority as a substitute for authority, and is usually declared in times of emergency, war, or civil unrest. Most countries limit when and the way law is often declared and enforced.
What is Military Justice?
It is defined because of the body of laws and procedures that regulate the conduct and governance of soldiers’ members. Different countries have separate and distinct law-making bodies specifically designed to control the respective countries’ soldiers. On the one hand, some countries use different and separate judicial bodies and arrangements to administer justice, and on the other hand, other countries use civil justice systems.
Origin of Indian judiciary
Indian justice is one of the oldest legal systems within the world. Inherited from the legacy of the legal systems established by British rule out India since the 19th century, it includes a standard law legal jurisdiction system consisting of customs, precedents, and laws. At the very best level, the judiciary features 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 ladies in uniform. Of these three Acts are often found on the official website on search. In India too, there are certain Para-military forces that have laws almost like people who apply to defense services. This includes the Border private security force Act, the Coast Guard Act, the Border police Act of Indo-Tibet and the Assam Rifles Act. All of those Acts are inspired by the Military Act. The original motive with which the British developed military justice was to enable discipline in Indians after the Mutiny of 1857. The main objective for the Indian Army Act, 1950, the Navy Act, 1957 and the Air Force Act,1950. Before being adopted by independent India, only a couple of changes were made to British laws.
For different reasons, the necessity for a separate justice scheme for the soldiers arises. Military functions require rapid decision-making. This will not be accomplished through discussions and debates. The subordinates perform the orders of a commander. That’s why all military forces have a hard and fast hierarchy system. This puts all people in their position that’s clearly designated. Moreover, since the soldiers aren’t a deliberative body and have developed their own laws and traditions that recognize unique military offenses like desertion, disobedience of orders, absence without leave, dereliction of duty, etc.
Defects within the Indian Military System
Together with the opposite acts of the various soldiers, the Military Act reflects the old justice system prevailing in British times and is therefore ridden with defects. Removing these defects becomes of utmost importance as seen the military justice has a number of shortcomings or defects some of them being:
• Right to bail- An arrested military personnel has no provision for bail. The superior military authority may plan to grant it on the idea of their discretion. The apex court has established the principles on which bail should be granted, but granting bail at somebody’s discretion is bigoted and unreasonable.
• Military rules don’t allow an accused to get a civil lawyer to defend him or to be defended by an officer referred to as the defending officer. The shortage of legal aid services this provision infringes one of the Rights enshrined in the Constitution (Article 21 of the Indian Constitution).
• Trial during a Summary Court-Martial- Trial of accused military personnel is held during a special court referred to as the Summary Court Martial. The SCM trial doesn’t match the amount of justice set by the apex court and various high courts just because there’s no prosecutor and therefore the SCM performs a number of the functions of the prosecutor themselves. Serious infringement of Article 22 of Indian Constitution occurs when the accused can’t defend himself with the assistance of a lawyer or a defense officer. SCMs are severely criticized by the Supreme Court and High Courts for failing the just and fair reasonableness test.
•Double Jeopardy- Article 20 (2) of the Indian Constitution enshrines constitutional protection against prosecution. It’s available within the military justice process, but this protection isn’t available before a civil court to stop a second trial on an equivalent offense.
• No right of appeal- There is no provision for the accused to appeal during the higher court. The Military Act states that an individual 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 military or any prescribed superior officer in command of the one that confirmed the finding or sentence, and therefore the central government, the chief of the military or the other officer may pass such orders because the case could also be (section 164 (2) of the Military Act). This remedy is additionally just a paper exercise and occurs in closed rooms where the accused doesn’t have the proper to non-public representation. There’s virtually no right of appeal against the court martial’s order.
• Members of Court Martial- Members aren’t trained to administer justice either legally qualified or not. They’re under the various commanding influence and don’t exercise their judgment completely independently during a trial.
Reforms within the Military Justice System
A large number of cases that are brought before the upper civil courts show that the armed forces’ justice delivery system has been moving at a really slow pace and has not been ready to fulfill men’s’ aspirations in uniform. The entire number of legal cases challenged by the Ministry of Defense and therefore the headquarters of the soldiers is quite a lot.
Many consider that the system of the military is against the Constitution’s liberal spirit and there arises a basic need to strike a good balance between a democratic society’s pressures and military discipline’s requirements. The military justice system of India can be traced back to England’s military laws. After the Mutiny of 1857, it had been made by the British to control natives and has some major flaws. They are-
• No bail provisions for 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 executive and functional control of an equivalent 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) of the Indian Constitution isn’t available to Air Force personnel to stop a second trial before a civil court.
• The trial of a summary court-martial doesn’t suit the recognized standard of justice because there’s no prosecutor and therefore the court doesn’t suit it.
In the field of human rights, broad interpretation has generally kept clear the terms of service of aggrieved military personnel also because of the justice of the courts-martial. There are glaring deficiencies within the safeguards granted to the accused and therefore the attitude of these administering the military justice delivery system. The justice system is taken into account a part of the chief department and actually, is just an instrument of executive power to enforce force discipline.
It will not be correct to mention that there’s no got to reform the law since the amount of individuals suffering from the law is little or the members of the soldiers have voluntarily submitted to the prevailing system with all its flaws. The soldiers’ justice system should adopt a procedure that’s not only open and objective but also aims at a liberal interpretation of the principles of natural justice. While the first purpose of the military justice system should be to take care of discipline within the organization, the main target must get on organizational effectiveness instead of punishing or protecting individual actions.
The soldiers’ Tribunal in India
Since August 2009, the soldiers’ Tribunal and its Benches (each judicial and administrative member) are operating. It’s original jurisdiction over matters concerning service and appeals court-martial jurisdiction. Within the last 5 years, 5,500 cases are decided. The Tribunal is unable to execute its orders through contempt of court. An appeal could also be brought before the Supreme Court of India against the Tribunal’s order. An amendment to the AFT Act 2007 to offer the resentment of the soldiers in 2012 to the contempt of court.
The AFT has no contempt of court authority. The soldiers’ Tribunal (AFT) has no jurisdiction in grievances concerning leave, posts, transfers, summary disposals, and trials. An outsized number of cases have occurred during which the military or government has did not take action on the Tribunal’s decisions. In its present form, the Indian military system may be a hangover from a time when the battlefield was thus far faraway from the traditional world that the soldiers had to be self-contained. Over the past 20 years, the planet has moved forward and major changes have occurred in other democracies’ military justice systems. It’s time we reinforced our system and restored public confidence within the quality of military justice.
Military law provisions govern the role of the Indian Army during peace and war formulated within the sort of Statutes, Rules, and Regulations. it’s a written code that has seen periodic changes and review, aside from conventions of service. Individuals of the soldiers have their own justice system that’s quite different from the common justice system. The legal and justice system of the soldiers was designed to be relatively swift in execution so as to take care of discipline and avoid the long absence of military and military duties from officers and men. The system of appeals has therefore not been included within the military justice system, because it is within the civil system.
As members of the soldiers, quite close to 1.5 million Indians are subject to the military justice system. This group still applies to a system designed and implemented after the Mutiny of 1857 within the name of discipline to serve the interests of colonial masters on Indians. In our country, the military justice system is never criticized- the notion that it’s about defending the system, calling it ‘time-tested’ is usually ignored. Additionally, a veil of secrecy is drawn on military matters. There’s a transparent trend of change within the world’s military justice system in terms of the rights of accused and human rights standards.
“The views of the authors are personal“
Frequently Asked Questions
What are the Acts that governor the Military Law in India?
The military law is mainly governed by the Army Act, the Air-force Act and the Navy Act respectively.
What are the major defects in the military law?
One of the main defects in this law is there is no right to bail and there is no right to appeal.
What is military law?
This law is a body of laws and procedures that regulate the conduct and governance of soldiers and personnel of the country.