Aryan Grover
The military of any nation commands a great deal of respect, and rightly so, being an organisation that is responsible for the welfare of people at large. Its members are governed by rigidly laid down organizational rules and observe a high degree of discipline in their day-to-day lives.
Functioning as “societies within societies”, militaries often have their own systems of economy, education, medicine and other such features of a working civil society. It seems only logical then that militaries are governed by their own legal procedure as well, having a different set of laws, rules, and regulations to punish wrongdoers.
A Court Martial is in essence, the procedure by which a member of the armed service is tried for offences as per military law, by a special military court, that stands independent of any civilian court. A court martial can also try Prisoners of War (POWs) for war crimes, as also required by the Geneva Convention.
HISTORY OF COURT MARTIAL
Some form of disciplinary enforcement mechanism has been a part of every military system, but its formal origins can be traced as far back as the Roman Empire. The magistri militum or the legionary tribunes were the dispensary authorities of justice in Roman armies, where either sole judges or councils presided over the proceedings.
People accused of offences such as cowardice, mutiny, desertion and insubordination against a superior were tried and prosecuted.
Many of the punishments imposed at the same time, such as decimation, disfigurement, and exposure to elements have since been abandoned, but one important punishment that continues to be carried forward is dishonourable discharge. The Roman model has thus served as the base on which the contemporary model of the martial courts has been built on.
The origins of the military court in India can be dated back to the sepoy mutiny of 1857. There was a deterioration of the discipline of the Indian army, and it was found that one of the major reasons for indiscipline was the insignificance of the position occupied by the commanding officer of the regiment, who was severely limited in terms of power to punish his own men.
Thus, there was a need for the establishment of a military court, with sufficient power to the commanding officer to convict and sentence military offenders. The Indian Army continues to follow the system of military justice established by the British.
WHY NEED FOR SUCH COURTS?
It is only normal to wonder why there is a need for a separate mechanism to try the offences of military personnel, after all, are the civilian courts not just as competent?
The answer to this lies in the fact the functioning of the military in modern war requires expeditious decision making, which is made impossible by the traditional, debating system of courts. The pendency and paucity of time at a regular court delays and often hampers justice.
For ensuring accountability and discipline, there is a clear system of rank and command in place, which allows one person to be placed in charge of others when action must be decided upon.
More so, the military is a specialized community with its own sets of laws and offences essential for accomplishing military objectives, such as desertion, unexplained absence, insubordination, and dereliction of duty, which cannot be tried by a civilian court.
A court-martial is constituted of impartial judges, who devote the required time and ensure a fair hearing, and not being satisfied just by following the blind letter of Law.
TYPES OF COURT MARTIAL IN INDIA
The provisions of The Army Act, 1950 provide for four kinds of court-martial, that is, the:
- General court-martial, for the most grievous offences amounting to felony;
- District court-martial;
- Summary General court-martial, for trying service holders charged with minor offences;
- Summary court-martial.
The court-martial can try all offences of military personnel except: –
- Rape;
- Murder;
- Culpable homicide not amounting to murder.
All three of these are to be tried by civilian courts, unless the offences are committed in the manner, in which case they are tried by a court-martial:
- During active service or course of employment;
- Any place outside India;
- Any border or frontier post directed by the Central Government through notification.
The salient features of the various kinds of court-martial are as follows:
- General court-martial
Who can convene: The power to convene a general court-martial lies with the Central Government, or the Chief of the Army staff, or any person who has been empowered to do so by warrant of the Chief of the Army Staff.
Composition: A general court-martial comprises of no less than five officers, each of whom has held a commission for not less than three years, and of whom not less than four are of a rank below that of captain.
Power: A general court-martial has the power to try any person subject to the Army Act 1950 for any offence punishable as per its provisions and pass any sentence authorised thereby.
- District court-martial
Who can convene: The power to convene a district court-martial lies with officers who have the power to convene a general court-martial, or any officer empowered to do so by warrant of any such officer.
Composition: A district court martial comprises of not less than three officers, each of whom has held commission for not less than two years.
Power: A district court-martial has the power to try any person subject to the provisions of The Army Act 1950 for any offence made punishable as per its provisions, and to pass any sentence authorised by the Act, other than a sentence of death, transportation, or imprisonment for a term that exceeds two years. However, a district-court martial does not have the power to try an officer or a junior commissioned officer.
- Summary General court-martial
Who can convene: The power to convene a summary general court-martial lies with the following authorities:
- an officer empowered in this behalf by an order of the Central Government or of the Chief of the Army Staff
- on active service, the officer commanding the forces in the field, or any officer empowered by him in this behalf;
- an officer commanding any detached portion of the regular Army on active service when, in his opinion, it is not practicable, with due regard to discipline and the exigencies of the service, that an offence should be tried by a general court- martial.
Composition: A summary general court-martial comprises of not less than three officers.
Power: A summary general court-martial has the power to try any person subject to the Army Act 1950 for any offence punishable as per its provisions and pass any sentence authorised thereby.
- Summary court-martial
Who can convene: The power to convene a summary court-martial lies with the commanding officer of any corps, department or detachment of the regular Army.
Composition: The summary court-martial comprises of solely the commanding officer of the corps, department or detachment of the regular Army who convened the court-martial.
Power: If there is no grave reason for immediate action to be taken and without impairing the discipline, a reference can be made to an officer who is empowered to convene a district court- martial or on active service a summary general court- martial for the trial of the alleged offender, the officer holding a summary court- martial cannot try without such reference any offence which has been made punishable under any of the sections 34, 37 and 69, or any offence against the officer holding the court.
It is empowered to try any person subject to The Army Act, 1950 and under the command of the officer holding the court, except an officer, junior commissioned officer or warrant officer and may pass any sentence except a sentence of death or transportation, or of imprisonment for a term of:
- one year, if the officer holding the summary court- martial is of the rank of lieutenant colonel and upwards, and;
- three months, if such officer is below that rank.
DRAWBACKS OF COURT MARTIAL
Some of the shortfalls that the court-martial system in India suffers from are:
Right to Bail: A military personnel that has been arrested on a charge has no provision of bail, which is a matter of discretion of the commanding officer, or any other superior military authority. This discretion is arbitrary and prone to be misused, and in violation of the constitutional guarantee as under Article 21.
Legal Aid: The accused in a court-martial does not have access to the services of an experienced legal officer as counsel. Although the military rules permit the accused to engage a civilian lawyer at his own expense or to be defended by a military officer, very few of the accused are actually allowed to avail either recourse because there is inadequate infrastructure to meet the obligation of legal aid in the armed forces.
As a result, court martial cases are not adequately defended, which violates the provisions of Article 22 of the constitution.
Double Jeopardy: The constitution provides protection against double jeopardy, or being tried for the same offence twice, under Article 20(2) of the constitution. While the benefit of this is available before a court-martial, it is not available for the same offence before a civil court.
Trial in Summary Court Martial: A trial as per the summary court-martial is conducted without a prosecutor and rather, the court itself performs some of the functions of the prosecutor. The accused here is not entitled to engage a counsel or defending officer, in violation of Article 22 of the constitution. It is also in violation of Article 21, which requires the procedure to be just, fair, and reasonable.
The decisions of the Summary court-martial have often been criticised by the Supreme Court as being biased, too harsh, and in violation of Article 14 of the constitution.
Read more:
*What is court martial? (ndtv.com)
*Military Justice System in India (usiofindia.org)
*Court Martial (commons.stmarytx.edu)
