Indian Defence Review

The fact that 4,000 cases were heard by the various Armed Forces Tribunals in the last one year and 90 percent (3,600) were decided in favour of the defence personnel reveals the extent of injustice.

The provisions of the Army, Navy and Air Force Acts do not provide for appeal against verdicts of courts-martial which were the first and last courts of adjudication in criminal matters. The only judicial remedy against courts-martial verdicts for service personnel was to invoke the extraordinary writ jurisdiction of the Constitutional Courts of the country. But writ courts, as against ordinary appellate courts, have only a limited power of judicial review as they cannot appreciate evidence and go into the factual matrix of the case or decide on the quantum of punishment awarded by a court-martial.

The concept of an Armed Forces Tribunal was very much in existence right from the day the Constitution of India came into force. But it appears that it escaped the notice of the Legislature till they were made aware of it. At the time of enactment of the Army Act and the Air Force Act, in 1950, though Parliament did debate the need for an Appellate Court, it provided for an in-house non-judicial review of court-martial proceedings by way of pre-confirmation and post-confirmation petitions. In 1954, the Judge Advocate General mooted a proposal for setting up a Review Board to hear appeals against court-martial verdicts, which was turned down. In 1957, when the Navy Act was passed by Parliament, a provision was incorporated for a mandatory judicial review by the Judge Advocate General (Navy), with opportunity of personal hearing to the accused or his counsel. In 1960, a private member bill in the Lok Sabha, seeking amendment in the Army Act to provide for an opportunity for appeal against courts-martial decisions did not succeed.

There was thus no forum provided for redressal of grievances of the Armed Forces except to approach the Supreme Court by filing a petition under Article 32 or 226 of the Constitution. For the first time it was realised by the Apex Court, in the case Lt Col Prithipal Singh Bedi v. Union of India & Others that an appropriate alternative forum should be provided by legislation to ventilate the grievances of the Armed Forces. In 1992, the Parliamentary Estimate Committee, in its 19th Report, suggested setting up an Independent Appellate Board or Tribunal for service personnel. A similar report was made in its 169th report but to no avail. After two decades, the Supreme Court had to draw attention of the Government and Parliament towards this glaring lacuna in the military justice system, in the case of Union of India v. CS Gill, in 2000. It still took nearly another decade to pass the Armed Forces Tribunal Act, in 2007 and actually set up the Tribunals.

Armed Forces Tribunals are also prevalent in other countries. In Britain, it was framed as back as in 1951 in the Court-martial (Appeals) Act of 1951 (amended in Court-martial (Appeals) Act, 1968). In USA there is the Uniform Court of Military Justice Act, 1950 (subsequently amended by the Military Justice Act, 1968). Likewise there is an Act in Australia as well.

Article 227 of the Constitution gave powers to High Courts to have superintendence over Tribunals. However, the Armed Forces Tribunal Act, 2007 has specifically taken this purview of superintendence or supervision away from the High Courts. A similar provision was made under Article 136 of the Constitution which reads:

The long time lag between the cause and final disposal by the courts meant that the individuals responsible had faded away and could not be held accountable.

1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

Thus, the genesis of the establishment of the Armed Forces Tribunal lies in the perceived requirement of creating a forum for an independent and comprehensive judicial review of Court Martial proceedings; they also comprehensively cover all aspects of discipline and service conditions. The overwhelming majority of the cases that have caused members of the Armed Forces to approach Courts relate to the three P’s that affect a serviceman – Promotion, Pay and Pension. Two other Ps – Postings and Punishments (Minor) are as yet out the purview of Armed Forces Tribunals.

The military justice system must fulfill two functions: Discipline and, equally if not more importantly, ensuring Equitable and Fair Dispensation of Entitlements related to the service. An organisation which, of necessity, has to function on a single point hierarchical system of authority of command must be fair, albeit firm, at all times. A glaring inadequacy in managing service related matters is the antiquity of the relevant Regulations, e.g. Pension Regulations 1961; Entitlement Rules 1982; Defence Services Regulations 1984; Leave Regulations and so on. All have been comprehensively overhauled by successive pay commissions, judicial pronouncements, government orders, circulars, clarifications etc. On a number of occasions the Courts, and even the Supreme Court, has been led to conclusions based on obsolete or superseded regulations.

Court-martials were earlier subjected to intervention by the High Courts under Article 226 of the Constitution. The emphasis was on infraction of rules and procedures like Army Rule 180, 22 etc. The establishing of Armed Forces Tribunals allows a comprehensive review in appeal of all aspects of court-martials. Consequently, the emphasis has shifted from the letter to the spirit of the provisions of Service Acts and Rules and the substance of the case. A major impact of the Tribunal, by virtue of its quick disposal, is the accountability of individuals for improper interpretation, wrongful implementation or malafide non-compliance of orders thus denying individuals their entitlements. The long time lag between the cause and final disposal by the courts meant that the individuals responsible had faded away and could not be held accountable. This is bound to change as the delinquent individuals would now be very much around to be held to account.

Appraisal

Have the Armed Forces Tribunals met their aims and objectives? They certainly provide an independent, comprehensive, quick and affordable forum for dispensation of military justice. Courts have very cautious in interfering in Armed Forces matters because of the necessity of maintaining discipline. Thus, 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. It is one of the cardinal features of our Constitution that every person is entitled to fair play. In this connection, a passage from the Supreme Court judgment in the case of Lt Col Prithipal Singh Bedi, in 1982, is relevant:

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Reluctance of the apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering the armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution.