By Nirupam Deo
Published on: September 14, 2021, at 14:52 IST
Introduction
Indian Judicial is one of the most ancient system working in the field of Judiciary. It had systems for delivering Justice as soon as monarchs took hold of various kingdoms in India. They all exercised the principle of delivering justice and furnishing law in one way or other.
It has an established hierarchy and configuration under which all Indians are enclosed. All the Courts, judges and law members have to abide by these set of rules. Supreme Court is the apex court, below which lies various High Courts and below them District Courts at the lower tier.
A significant anomaly to this rule is the military faculty. They have a distinct network to deal with conflicts. This distinct network is an age-old bequest of the British Raj that still exists, continuing nearly fully unaffected by time. It is the judicial system which any military personnel has to abide with, their disputes and conflicts can only be solved in a Military Court.
What is the Need for Military Courts in India?
There are numerous justifications behind the validity of a distinct network of judgement for military personnel and military-related crimes. Initially, given the essence of the armed forces and the important role they fiddle, there is a necessity for swift and strong action or penalty. That is, the military cannot afford to be embroiled by the several delays and adjournments that comprises in the civilian justice system.
Quick trials and stable decisions are important for retaining order and uniformity and also infusing the vital discipline that is synonymous with the military. This in turn allows the military to concentrate on its primary goal, which is guaranteeing national security.
Similarly, there are specific crimes that are distinctive to the military, like desertion, insubordination, or absence without leave. Given the particular disposition of the military and its several legal problems, it is of absolute urgency that there be a distinct system of adjudication for them.
The Military system is altogether different from the Civilian System of adjudication. The military personnel can’t be afforded to be held in stay due to the common delay function of the Indian Courts because these individuals are immediately required to keep law and order in the Indian society and holding them by the delay and adjournment tactics will only spread anarchy in the Country.
The process needs to be quick and uniform for the reason that the Indian Military personnel need to be present in the problem areas where there is a threat to the Indian Security and the process of uniformity goes on to infuse reliability in the system. They already know the reward and punishment for a particular offense. Lead by the example being the motto of these decisions, they are mostly used to invoke fear for future violators.
Offenses like desertion, insubordination, taking leave without notice is particular to military world and these laws are not applicable to Civilians. These cases would have created extra ruckus in an ordinary court and therefore owing to these reasons it is essential for a distinct Legal System for military personnel.
What is the point of Origination of these Rules?
The rules regulating the Indian military are primarily listed in the Constitution of India. The framers of the Constitution realized the need of a separate Judicial System, the British Raj had established and wanted it to continue working like it had been working previously.
Article 33 authorizes the Parliament by law to prohibit or repeal any of the Fundamental Rights of military men, with a belief to strengthen discipline and guarantee sufficient furlough of their duties. This was done while keeping in mind that the functioning of military is altogether very different from the common institutions and the system is harsh and rigorous so as to keep the men in discipline, therefore Fundamental Rights could cause hindrance to its normal working.
Article 136 and 227 limits and reduces the jurisdiction of judiciary, over declarations outcomes and sentences of court-martial. This way it doesn’t allow Civilian Judicial system to hinder it’s way of Justice and it maintains an independent structure of its own.
The various laws governing the Military Courts are as follows:
- Army Act 1950.
- Army Rules 1954.
- Navy Act.
- Air Force Act.
- Armed Forces Tribunal Act, 2007.
Enacted in 2007, the Armed Forces Tribunal Act was discerned as a landmark chunk of legislation that stimulated the construction of the Armed Forces Tribunal. In agreement with the Act, the Tribunal was given with the Power to adjudicate and listen to conflicts and objections associated to problems endured by fellows of the services including commission, appointments, enrollments and circumstances of service heeding all individuals liable to the Army Act, 1950, The Navy Act, 1957 and the Air Force 1950.
Similarly, it also furnished for appeals occurring out of orders, findings or sentences of courts-martial carried under the asserted Acts and with related courses interconnected with it. These Laws do hold the structure and functioning of Military courts and exercises non interference with Civilian Courts.
What are Court Martials?
Military crimes are largely dealt by the court-martial system. A court-martial is a criminal trial for members of the military who have perpetrated crimes in the initial alluded Acts.
In India, there are four aspects of courts-martial. These comprise the General Court Martial (GCM), District Court Martial (DCM), Summary General Court Martial (SGCM) and Summary Court Martial (SCM). In congruence with the Army Act, army courts can try personnel for all sorts of violations, except for murder and rape of a civilian, which are mainly tried by a Civilian Court of Law.
Court martials are responsible for maintaining order in Military personnel with respect to matters of Crime. It is a form of Criminal Court for Army Personnel where all forms of Criminal trials are tried by these Court Martials. They have Jurisdiction to all forms of offenses done by one military personnel against the other but their Jurisdiction doesn’t extend to wrongs done by army personnel to Civilians.
What is the process of Investigation of an Army Court?
The investigation procedure in Military Law is miscellaneous and frequently banks on the problem in question.
An excellent example of an inquiry would be the inquiry reached by Lt Gen BS Raju into the Galwan valley conflict with China. In this case, 24 Indian Soldiers and some unspecified number of Chinese soldiers fell victim to intra border aggression shown by the parties, that’s why the process of Investigation was followed up by Lt Gen BS Raju to look into the matters at hand.
Additional individual centred case of legal examination and investigation would be the case of Major Leetul Gogoi who was apprehended possessing illegal connections with a minor girl, in his case a full flung inquiry was administered.
The process of investigation of Army Courts are not uniform and depends on case to case but a strict code of rigorous investigation is carried out in almost every case to procure all the testimonies and evidence related to the case.
What are the elements of a Military trial?
Some normal elements of military trial are:
- Consul
The parties are called on for resolving matters at hand. Both the parties are counselled to act in a certain way to gain maximum advantage and to avoid certain unnecessary litigation if it can be resolved through bilateral talks.
- Prepared defence
The defendant is given ample time to prepare his case by giving him facts and issues in question and to bring sufficient reasons and proofs to defend himself.
- All information conveyed freely and clearly
All information is given to both the parties so as both can prepare their cases and be ready for the trial. This ensures that no party gains unfair advantage.
- Speedy trial with sufficient duration
Unlike Civilian Courts, the Military Courts follow a Speedy Trial procedure and the issues at hand are solved as soon as possible.
- Independent and impartial trial
The military Courts have no affiliation to any other Court in India and it’s decision is binding and cannot be altered by any Court. Both the sides are heard and the jury is chosen in such fashion that it must be unbiased and must consider the case dearly before reaching to a judgement.
- Right to inspect proceedings
The trials are of such nature that it can be inspected by the selected authorities and the Court so as to make record for future perspectives and to deliver a fair judgement.
- Open trial
Open trials are conducted by Military Courts. Open trials are the form of trials where anyone can come and see the proceedings of the Court. This is done in leu to ensure that proper justice is delivered to both the parties.
Right to appeal for an Army Personnel
- In house Appeals
These appeals are done in conjoint format by Army personnel. These can be done in two formats, namely, Pre confirmation petition and Post confirmation petition.
- Independent appeals
These appeals can be made independently by army personnel, they include Armed forces tribunal, Writ jurisdiction of the high courts and supreme courts, Powers of the president of India to award relief by means of pardon, etc.
What is the procedure of awarding punishments in Army Courts?
Some punishments that can be rendered by the Army Courts include:
- Cessation of employment in the Army.
- Deprivation of pension and other feasible privileges.
- Reaping privileges curbed to only pension fund.
- Demotion or extensive loss of identification.
Although, the President of India can employ his judicial power, under Article 72 to either pardon, reprieve, respite or lend remission of retribution or verdict provided by a court-martial.
Court Martial punishment extend to only the terms of services and its expulsion. It can terminate an army personnel once it finds he is unfit or dangerous for the army reputation. President is the only body which can alter the punishments once infused by the Court-Martial.
What are the criticisms that Army Courts face?
The Indian army has frequently been criticized for resuming the conventions of the British Raj and not bringing about enough exertion to hold up with the times and put up with the essential strides to revise and modernize its justice method.
Complying to that in mind, some of the weaknesses of the military justice system in India are:
- Bail
There is at current no outlay of bail for an arrested military individual within the outlay of the previous three service Acts.
The officer indicted is virtually at the pity of his commanding officer and the authority supervising his case. While the Supreme Court has certainly laid out the purpose on which bail should be awarded, these rules and principles are nonetheless eventually to be rendered relevant with respect to those military personnel that are being held in junction.
Freedom of this essence in awarding bail is for all objectives absolutely grounded in personal caprice, and there is a high chance of it being misused and thus, this virtually renders the constitutional assurance given under Article 21 irrelevant.
- Trial in Summary Court Martial
This tool is neither up to the mark nor does it is compatible with the basic norms. This is because, there is no prosecutor and relatively fascinating the Court gains some of the objectives that are generally given by a prosecutor in a conventional Court of Law. Additional startling truth is that the indicted is not granted the right to defend himself with the aid of an attorney, or any identical being.
This facet of the military prosecution is once again an instance of how it struts in apparent infringement of the outlay given in Article 22 of our Constitution. Also, there are infringements to Article 21 as well. Virtually, the given protocol for this process does not plunge under the domain of what would be generally deemed as reasonable or acceptable.
All this has occurred in there being several examples where the Supreme Court and various high courts across the nation have chastised the rulings made by SCMs. That is, they have frequently been called as being prejudiced, granting unreasonable penalty and also being in obvious infringement of Article 14 of the Constitution.
- Legal aid to accused
What is possibly the most boisterous shortcoming of the Indian system of military justice is the dearth of skilled legal officers and envoys for the indicted. While the military rules enable for the indicted to take up the assistance of a civilian lawyer at his own expenditure or to benefit the assistance of a defending officer, these outlays are very scarcely exercised in fact.
As, it is very unusual for the indicted to take up the assistance of a civilian lawyer at their own expenditure. Also, assistance officers are all too often young and even reluctant to perpetrate to furnishing counsel for the indicted.
There is largely to be wished in terms of the continuing infrastructure in location. Also, there is tiny inducement furnished to ensuring officers to virtually assist and aid indicted individuals. The problem is then intensified by the certainty that this chore is glimpsed as hazardous and giving tiny gift.
The outcome is that trials that arrive before the court-martial are not nicely defended, which is in immediate hostility to the receptacles given in Article 22 of the Constitution.
- Members of court-martial
A court-martial organized in the domain of military law fiddles the identical position of succeeding through with both the investigations and verdict. It is the impression of specialists in the examination of military law that members are often lacking in experiences, qualifications and training to attain this important position. Similarly, analysts suggest to the bulk of the highly alarming happening that is “command influence.”
This virtually means that decision making is not certainly autonomous or impartial in the regime of justice. Specific authorities allege that members are provided comprehensive teachings from those who yank the cords in the military. Good view with that the enormous hazard that is presented from violating decrees in the military, most officers are swiveled to behave in a way that is authorized to them.
- Functioning of the Judge Advocate General (JAG) Department
The Judge Advocate has no part to fiddle, they neither work as an advocate or a judge. Thus, for all objectives, any comparison of the to the judges in a trial is erroneous, unless of course in the reality that members of the Judge Advocate General have to retain a firmly honest viewpoint. The Judge Advocate General department is within the managerial and practical supervision of the same executive who dubs for a prosecution by court-martial and also later surveys the said proceedings.
The disposition of guidance furnished by the Judge Advocate General is prominent impacting on the judgment making of the members of the court-martial. Despite of this, officers of the Judge Advocate General are not truly independent and there are positive limitations to their independence to lend a reasonable and impartial ruling.
- Double Jeopardy
The constitutional insurance given against the manifestation of double jeopardy is certainly computed in Article 20(2), while it can be utilized in a court-martial, the same is not accessible to halt a second prosecution on the similar offence before a Civil Court.
For instance, a member of Military punished under Army Court can be tried under the Civil Court for same offense.
- Rejection of right to appeal
At current, there is no substantial method for appeal in reaction to the rulings or judgment of a court-martial. It is asserted in Chapter XII of the Army Act, specifically Sections 153 to 165, these sections calculate the recent surviving method for what is termed as the ‘confirmation’ and ‘revision’ of court-martial charges.
In Section 153 it is said that no finding or sentence of groups like a common, district or summary general, a court-martial can be comprised as reasonable unless of course it is corroborated as is computed in the Army Act.
In Section 160, the amendment of an outcome or verdict of a court-martial by a decree substantiating a judgment is ratified.
Section 164 is pertained with the assurance and the remedy that is accessible to those groups against whom a ruling or verdict has been announced.
With respect to a last outcome or verdict granted vis-a-vis a GCM, DCM and SGCM, the remedy that the indicted can opt for is stipulated in Section 164(2), what the requirement virtually says is that this can be employed only once the outcome of the verdict is convinced or substantiated.
The possibility of pursuing remedy is, thus, for all objectives elusive to the person on trial preliminary to the authorization of the verdict. Also, in extension to this, the remedy is more of a tradition and is not accomplished to the highest criterion.
Virtually the aforesaid requirement is reduced and for the most facet, it takes place behind closed doors where the indicted is withheld the right of personal manifestation. As a consequence, in fact, there is no actual choice to appeal against a court-martial decree.
- The Armed Forces Tribunal
The Armed Forces Tribunal is a martial tribunal in India. It was organized in the Armed Forces Tribunal Act, 2007. While it was originally discerned as something that could help vastly revolutionize the military justice system in India. At present it has greatly languished to live up to the publicity and build-up. An important difficulty that the Armed Forces Tribunal confronts is a deficit of the crucial quantity of tribunals. As an outcome of this, there is a lot of wait in the judicial process. Also, there is a significant case of non-implementation of the last decrees which could have given mitigation to litigants.
A preponderance of the cases coming to the tribunal were against the Union Government, with the Ministry of Defence as the respondent. It was seen that the relaxation and remedy decreed by the tribunal to the disappointed servicemen and veteran were just on paper due to lack of commission and obedience by the authorities. A severe absence of sufficient resentment power with the tribunals made them inadequate of obtaining their rulings implemented.
Conclusion
Army Courts are assigned with the task of assigning punishments to the Army personnel. They were made while keeping certain things in mind like the Military functioning is very different from Civilians and therefore, they require a separate Court, issues in Army Court must be solved differently than a normal Court, their decisions must be binding and not be a subject to appeal.
There were revolutionary ideas prima facie but the condition we see how the Army Courts are functioning, being corrupt at the vicinity, harassing the personnel makes us think again about their functioning.
They do require certain amendments so as to reduce the centralization of power, making the tribunals independent and making laws such that the personnel are not harassed because of the rules established in the Constitution.