MILITARY JUSTICE SYSTEM
Military justice (or military law) is the body of laws and procedures for the armed forces. Many nation-states have separate and distant law bodies that govern the conduct of the members of their armed forces. Some states use special legal arrangements and other arrangements to enforce such laws, while others use civil law systems. Legal issues unique to military justice include the preservation of good order and discipline, the lawfulness of orders, and military members’ proper conduct. Some states allow their military justice systems to deal with civil offenses committed by their armed forces under certain circumstances.
Definition of Military Justice
It is defined as the body of laws and procedures that regulate the conduct and governance of armed forces members. Different countries have separate and distinct law-making bodies specifically designed to govern the respective countries armed forces. While some countries use different and separate judicial bodies and arrangements to administer justice, some countries use civil justice systems.
Origin of Indian Judicial System
Indian justice 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 includes a common law legal jurisdiction system consisting of customs, precedents, and laws. At the highest level, the judiciary has 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 women in uniform. All these three Acts can be found on the official website on search. In India too, there are certain para-military forces that have laws like those that apply to defence services. This includes the Border Security Force Act, the Coast Guard Act, the Border Police Force Act of Indo-Tibet, and the Assam Rifles Act. All of these acts are inspired by the Army Act.
The British had developed the system of military justice to “discipline” India’s people after the Mutiny of 1857. It is the basis for the 1950 Indian Army Law, the 1957 Navy Law, and the 1950 Air Force Law. Before being adopted by independent India, only a few changes were made to the British laws.
For different reasons, the need for a separate justice scheme for the armed forces arises. Military functions require rapid decision-making. This cannot be accomplished through discussions and debates. The subordinates carry out the orders of a commander. That is why all military forces have a fixed hierarchy system. This puts all people in their position that is clearly designated. Military justice provides a catalyst for cultivating an unquestionable obedience habit by posing the threat of penalizing disobedience. Moreover, since the armed forces are not a deliberative body and have developed their own laws and traditions that recognize unique military offenses such as desertion, disobedience of orders, absence without leave, dereliction of duty, etc.
Defects in the Indian Military System
Together with the other acts of the different armed forces, the Army Act reflects the old justice system prevailing in British times and is therefore ridden with defects. Removing these defects is of utmost importance before they plague or deliver the system of military justice. Some of the shortcomings are:
- Right to bail- An arrested military person has no bail provision. The commanding officer or the superior military authority may decide to grant it based on their discretion. The apex court has established the principles on which bail should be granted but granting bail at somebody’s discretion is arbitrary and unreasonable and makes Article 21 of the Constitution
- Military rules do not allow an accused to obtain a civil lawyer to defend him or to be defended by a military officer known as the defending officer. The lack of legal aid services is a serious infringement of Article 21.
- Trial in a Summary Court-Martial- Trial of accused military personnel is held in a special court known as the Summary Court Martial. The SCM trial does not match the levels of justice set by the apex court and various high courts simply because there is no prosecutor and the SCM performs some of the functions of the prosecutor themselves. Serious infringement of Article 22 occurs when the accused cannot defend himself with the help of a lawyer or a defence officer. SCMs have been severely criticized by the Supreme Court and High Courts for failing the just and fair reasonableness test.
- Double Jeopardy- Article 20(2)enshrines constitutional protection against double jeopardy. It is available in the military justice process, but this protection is not available before a civil court to prevent a second trial on the same offense.
- No right of appeal- There is no provision for the accused to appeal in a higher court. Section 164(2) of the Army Act states that a person 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 army or any prescribed superior officer in command of the person who confirmed the finding or sentence, and the central government, the chief of the army or any other officer may pass such orders. This remedy is therefore not available to the accused before the sentence is confirmed. This remedy is also just a paper exercise and occurs in closed rooms where the accused does not have the right to personal representation. There is virtually no right of appeal against the court martial’ s order.
- Members of Court Martial- Members are not trained to administer justice either legally qualified or not. They are under the different commanding influence and do not exercise their judgment completely independently in a trial.
