Military justice is the body of laws and procedures that regulate the conduct and governance of soldiers and personnel of the country. The military law is mainly governed by the Army Act, the Air-force Act and the Navy Act respectively. One of the main defects in this law is there is no right to bail and no right to appeal. Different countries have separate and distinct law-making bodies specifically that are designed to control the respective countries’ soldiers. Indian justice is one of the oldest legal systems within the world. 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. The main object before being adopted by independent India, only a couple of changes were made under British laws. 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. Due to this reason the military forces have a hard and fast hierarchy system. 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:
- 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. Supreme 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 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. 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- 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 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 Indian Military System:
- 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.
Military law provisions are governed by the role of the Indian Army during peace and war formulated within the sort of Statutes, Rules, and Regulations. It is a written code that has seen periodic changes and review, aside from conventions of service. Individual soldiers have their own justice system which is quite different from the common justice system. The legal and justice system of the soldiers was designed to relatively swift in execution so as to take care of discipline and to avoid the long absence of military and its duties from officers and men. The system of appeals has not been included within the military justice system, because it is within the civil system.