MILITARY JUSTICE SYSTEMCritical Appraisal

&Analysis

Presentation byMaj Gen Nilendra Kumar

DirectorAmity Law School, Noida

andDirector General

Amity Directorate on Research & Innovation in Law & Allied Areas

MILITARY LAWS AND PRACTICESPROGRAMME

Module 6

This presentation discusses a few issues relating to dispensation of justice to the armed forces personnel in India.

Validity and strength to Military Law Mechanism is provided by Article 21 to the Constitution of India.

Article 21 underlines two prime objectives concerning functioning of the Armed Forces and other forces:-

1. Maintenance of discipline.2. Proper discharge of their duties.

Reference to these two objectives could justify restriction or abrogation of any of the fundamental rights included in Part III.

ISSUE 1

Right to Fair Trial

Constitutional Base

A right to a fair trial includes the right for legal assistance. This is part of the right to life enshrined under Article 21 of the Constitution of India.

APPROACHIn each case where a person complains of the deprivation of his life or personal liberty, the court in the exercise of its constitutional power of judicial review has to decide whether there is a law authorises such deprivation. Also whether in the given case the procedure prescribed is just, fair and reasonable as opposed to arbitrary, whimsical or fanciful.

What is meant by Fair Trial?

A trial which is fair and proper in the eyes of law viz. that which the law secures to the party before an impartial jury. It is held in accordance with the procedure laid down by law.

Element of a Fair Trial

1. The right to counsel.2. The right to prepare defence (including right

to present witnesses and evidence).3. The right to be informed of charges.4. The right to have a judgment by an

independent and impartial court.5. The length of the trial.

The first element is not present at some of the stages of disposal of a disciplinary case.

How does military law ensure a fair trial?

Inbuilt Mechanism

The features of military law application process that go to comply fair trial doctrine.

1. Challenge2. Voting by members3. Annulment4. Power to pardon etc.5. Responsibility of Presiding Officer6. Attachment

ChallengeSection 130

The accused at the assembly of a court martial (GCM, DCM or SGCM) is asked whether he objects to being tried by any officer sitting in the court.

The Act and the Rules provide an elaborated procedure if he so challenges.

This ensures impartiality and fair trial

Voting by MembersSection 132

Army Rule 87(2)The opinion of the members of the court shall be taken in succession beginning with the member lowest in rank.

This ensures that a junior member is not influenced by the view of the senior.

Remedy against order, finding or sentence of court martial.

Section 164

A person aggrieved by any decision of the court is afforded a statutory right to seek a remedy either prior to, or after confirmation of the proceedings.

Annulment of ProceedingsSection 165

Grounds of illegality or unjust

The proceedings may be annulled, by the authorities empowered, on the ground that they are illegal or unjust.

Annulmeans

to make void, to destroy, to cancel, do away with.

Power to pardon, remission and suspension

Sections 179 to 190

The provisions are thus fair and reasonable.

ARMY RULE 76(2)Responsibility of Presiding Officer

It is the duty of the presiding officer to see that the justice is administered and that the accused has a fair trial.

Attachment to Another Unit

The purpose is that the disciplinary proceedings can be speedily and satisfactorily completed without any interference.

COAS V Chadha EP, Maj; AIR 1991 SC 460

ISSUE 2

Pre Trial Judicial Custody

Provisions Relating To Arrest

Are these reasonable?

PRE TRIAL JUDICIAL CUSTODYis enforced

on the commission or discovery of any serious offence.

RA Para 392(d)

Arrest of an accused before, during and after trial is provided for under the Regulations

RA Para 292 (k)

FACTORS TO BE CONSIDERED BEFORE PLACING A PERSON UNDER ARREST

1. Nature of the offence2. Rank of the accused3. His character4. Provisions of various regulations

Custody of an offender may at times be desirable for his safety & security.

Types of Arrest

1. Open2. Close

POWERS TO ARRESTWHO CAN ARREST

1. Any superior officerSection 101 (2)

2. Any officer, whether superior or notSection 101 (3)Section 105 (2)

3. A Police Officer or MagistrateSection 104

4. Authorities receiving report of desertion

5. Any Police OfficerSection 105 (2)

6. Provost MarshalSection 107 (3)

7. A Court Martial Army Rule 150

Arrest may be necessary to timely start and conclude the disciplinary process.

However, the provisions relating to release from ‘arrest without prejudice to re-arrest’ be applied more commonly.

Even the manner of operation of arrest be made a little more humane.

ISSUE 3

Rights of the accused

RIGHTS OF THE ACCUSED

1. Uncensored correspondence with legal advisers; AR 33(1)

2. To interview any witness in his defence; AR 33(2)

3. To obtain through his CO written statements of witnesses, AR 33(3)

4. To have conversation with his legal advisers and witnesses unheard by others; AR 33(3)

5. To address an application to the DJAG of the command, if he is kept under arrest longer than 48 days without being brought to trial, or if not given full liberty for preparing his defence, AR 33(6).

1. Give him access to books magazines and newspapers.

2. Access to visits by family.3. Religious, psychological and moral

support.4. Need to treat him with greater sympathy

and compassion.

ISSUE 4

Legal Aid and the Indian Military Justice System

Legal Aid

Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system.

The consequences of absence of an opportunity to obtain legal aid may be severe and result in loss f reputation, liberty or means of livelihood.

Absence of legal aid during

• Court of Inquiry• Hearing of Charge• Summary Trial• Summary of Evidence• Summary Disposal• Summary Court Martial

At times, the blame apportioned by C of 1 may operate harshly.

Even the punishment awarded at summary disposal may have serious consequences on the future career.

Summary Court Martial

Vested with powers to award upto one year imprisonment coupled with dismissal from service.

Consequences appear to be quiet harsh as it implies loss of job and liberty for one year. Also stigma that would operate as a bar for future employment.

Improved modes of communications should now afford ease of opportunity for seeking legal aid.

CONSIDER

1. Video conferencing2. Access to a legal practitioner,

‘where feasible’.

Let CO certify in each situation where is not ‘feasible’.

ISSUE 5

Non Judicial Punishments

A punishment (such as reprimand, reduction to the next lower grade etc.) imposed by the commanding officer to officers and men of his command for minor offences and infractions of discipline.

TYPES OF PUNISHMENTS OR ADVERSE ACTION

1. By Courts Martial2. Summary Trial; Sections 83 to 85.3. Summary Disposal; Sections 80 to 82.

4. Administrative Actiona) Presidential Pleasure;

Section 18b) Termination of Service by

Central Govt.; Section 19

c) Dismissal, removal or reduction by COAS and other officers; Section

20.d) Censure

i) Recordable ii) Non recordable

The instances where serious offences have been dealt by award of censure (recordable or otherwise) are not uncommon.

Such a practice not only amounts to abuse of authority but erodes the high standard of discipline by allowing the offenders to get away.

These instances should not be ignored by viewing them as errors of judgment.

ISSUE 6

Right to Election for Trial by Court Martial

Presently, an accused has no right to demand a trial for court martial, except in limited situation of Sec 84(a).

SUGGESTION

Why not provide for such a right?

Let his honour and military reputation be vindicated by a judicial verdict!

ISSUE 7

Statement of Witnesses

A witness statement is a document recording the evidence of a person, which is signed by that person to confirm that its contents are true.

STATEMENT OF WITNESS AT DIFFERENT STAGES

1. C of 12. Hearing of Charge3. Summary of Evidence4. Trial

Court of inquiry involves a point of discipline. Hence, is almost always likely to bring out a lapse affecting character and military reputation of one or more soldier.

ISSUE 8

GENERAL RULES OF EVIDENCESection 133

Indian Evidence Act provisions apply to all proceedings before a court martial.

Consider

1. Evidence by video conferencing.2. Polygraph test.

ISSUE 9

Pre Trial Information

PRE TRIAL INFORMATION

Right of Accused to prepare Defence

1. Summary of evidence2. Charge sheet3. His rights under the Army Rules4. A list of name, rank and corps of the

officers who are to form the court.

Furnish these documents in a language he understands (Hindi).

ISSUE 10

Review of Punishment

The term ‘review’ mean a judicial re-examination of the case in certain specified and prescribed circumstances.

It is a process under which a court in certain circumstances can reconsider its own judgment.

REVIEW OF PUNISHMENT

1. Summary Trial; Section 86 to 882. Summary Court Martial

AR 133, Section 1623. Other Court Martial

AR 69; Section 164

ISSUE 11

Right to Appeal

Appeal

It is the right of entering a superior court and invoking its aid and interposition to redress the error of court below.

Right to Appealnow stands incorporated in military law process with the setting up of Armed Forces Tribunal.

ISSUE 12

Role of Convening Authority

CONVENING AUTHORITY

Is the person authorised under military law to set up a court martial by assigning members and referring charges to it.

Role of Convening Authority

1. To forward document to Dy. JAG of the commanding corps for pre trial advice.

2. To satisfya) That the charges to be tried by the Court are for offences within the meaning of the Act.b) That the evidence justifies a trial on those charges.

3. If not satisfieda) Order the release of the

accused; or b) Refer the case to superior

officer4. To satisfy that the case is proper one to be

tried by kind of court martial proposes.

5. To detail the officers to form the court and waiting members.

6. Furnish the documents as laid down toa) the Presiding Officerb) the accused

ISSUE 13

Unlawful command influence

Influencemeans

the power to change or affect someone or something.

Command Influence

is the action on the part of a senior officer, willingly or unwillingly, to influence court members, officials or witnesses participating in military justice processes.

COMMAND INFLUENCE

The improper influence by a superior in command with the independent judgment of persons responsible for judicial decisions.Unlawful command influence can be Either actual or apparent.

Defectmeans

a shortcoming, flaw or imperfection

Effect of Defect in Procedure

It cannot be said that every kind of defect in the procedure before a GCM renders its verdict invalid. However, if there is any violation of mandatory rules, the necessary benefit of the same is to be given to the delinquent.

Defect in procedurecould be

an illegally or irregularity

Irregularity can be cured. Not illegality.

Judiciary of the Armed Forces

Judiciary

A term applied to a co-ordinate department of the government, which construes and applies the laws, the officers of that department of government that expounds and administers the law.

Military Tribunals

Tribunal

A person or a body, other than a court set up by the state for deciding rights between contending parties in accordance with the rules having the force of law.

ISSUE 14

Summary General Court Martial

Resorted

on active service

Composition - Sec 113

Power to convene - Sec 112

The validity of trial by SCM is presently under examination before the Supreme Court.

ISSUE 15

Summary Court Martial

CONSIDER

1. Video recording of entire trial.2. Representation by a legal practitioner, ‘where

feasible’.3. Empower friend of accused a right of

audience.

ISSUE 16

Disciplinary Courts under the Navy Act 1957

DISCIPLINARY COURTS

a) Only for trial of officersb) During war or active servicec) Between three or five officers as

membersd) The presiding officer and majority of

the members from the Executive Branch.

e.At least one officer be senior in rank to the accused and be of rank Commander (Actg. Or substantive).

f) Limited jurisdiction as to offence and punishment

g) Any punishment inferior to detention

h) Presence of JA not necessary

FINALLYTHE QUESTIONS THAT NEED

CONSIDERATION

1. Can the different types of courts martial be abolished and replaced with a single court martial?

2. Can DCM be done away with?3. Can plea bargaining be introduced?4. Can the JA alone decide the

punishment?

5. Can there be standing courts?6. Should the accused be given an option to

elect trial by a court martial or military judge.

CONCLUSION

The military law provisions would need a continuous appraisal to ensure fair trial, objectivity and human treatment of the accused.