Indian Defence Review

The Armed Forces Tribunal Act, 2007 was brought into force on 15 January 2008 and the Armed Forces Tribunals were established under its authority from 10 August 2009. The Armed Forces Tribunal Act provides for adjudication or trial by the Tribunal of disputes and complaints pertaining to commissions, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, the Navy Act and the Air Force Act. It also provides for adjudication of appeals arising out of the findings, orders and sentences of courts-martial and matters connected therewith or incidental thereto and for further appeal to the Supreme Court against decisions of the Armed Forces Tribunals.

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The Armed Forces Tribunals are now fully functional, with the Principal Bench located at Delhi and other Benches at Chandigarh, Chennai, Guwahati, Jaipur, Kochi, Kolkata, Lucknow and Mumbai. It is therefore, apposite to review their impact.

The Military Justice System

Military justice is the body of laws and procedures governing members of the armed forces. The military is a unique society, with distinct needs in the areas of discipline and order. The military justice system is essential to the maintenance of that discipline. Without it, a military commander could not effectively exercise his authority or accomplish the mission. Many things that are simple matters of courtesy in the civilian world are considered issues of criminal law in the military. A civilian worker with a private employer who fails to report for duty or who is disrespectful toward his employer would not face the possibility of criminal prosecution and going to jail. In the military, it is different.

Article 33 of the Constitution confers power on Parliament to restrict the benefit of or abrogate Fundamental Rights to members of the Armed Forces”¦

While the military system of law is similar to the civilian system in many ways, there are numerous procedural and substantive differences. The military justice system is applied through the Army Act, 1950, Air Force Act, 1952 and Navy Act, 1957. The military being unique as an institution, these Acts curtail certain rights which are enshrined in the Constitution for all citizens. They also enable quick in-house dispensation of justice and that is where the public at large perceives these to be harsh.

The military justice system in India evolved during the British rule. The origin of court-martials, historically, is traceable to the widespread agitations which occurred in 1857. It was ubiquitously believed by the Raj administrators that the 1857 events were attributable in large measure to the fact that Commanding Officers did not possess the power to summarily punish the transgressors, and thereby squelch rebellion, revolt or mutiny quickly and ruthlessly, if required. Summary Court Martial’s were introduced in 1869, with the purpose of prompt and swift award of punishment to indisciplined soldiers. Post-independence, Parliament substantially repeated the provisions of the Indian Army Act, 1911 while enacting the Army Act, 1950. It includes the power of dismissal from service and imprisonment, with no review. This was a serious shortcoming due to its subjectivity and limitations of the appeal procedure in the statutory provisions of the Army, Navy and Air Force Acts. The provisions of these Acts, though oppressive in parts, were never meant to be draconian and do have a number of in-built checks and balances.

“¦under the garb of discipline, many have been deprived of their rights and the asperity has resulted in some measure of disenchantment with military life.

Article 33 of the Constitution confers power on Parliament to restrict the benefit of or abrogate Fundamental Rights to members of the Armed Forces, among others, in order to ensure the proper discharge of their duties and the maintenance of discipline among them. Personal liberty makes for the worth of human beings and is a cherished and prized right. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by a criminal court and a court martial is apt to generate dissatisfaction arising out of this differential treatment. Even though the procedure of trial by court martial is almost analogous to the procedure of trial in the ordinary criminal courts, it is pertinent to recall what Justice William O’ Douglas observed:

‘That a civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. The very expression ‘court martial’ generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavour.’

In a celebrated case of Reid v. Covert, Justice Black observed:

‘Courts martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of ‘command influence’. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings; in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges’.

Article 323 of the Constitution was amended and substituted by Article 323A under the 42 Amendment Act, 1976, which came into effect from 3 January 1977. By this amendment, Parliament conceived of establishment of Tribunals so as to reduce the pressure on the regular Courts and provide speedy remedy to citizens by constituting Central Administrative Tribunals and State Administrative Tribunals under the Administrative Tribunals Act, 1985, for quick redressal of the grievance of the civil services which do not include the Armed Forces. It also provided for the National Commission and State Commissions under the Consumer Protection Act, 1986; Telecom Disputes Settlement and Appellate Tribunal under the Telecom Regulatory Authority of India Act, 1997; Railway Claims Tribunals; and many more Tribunals. No such forum was constituted for the Armed Forces for redressal of their grievances, though it was originally conceived in the Constitution.