The Military Justice System in India : An Analysis

As members of the armed forces, more than 1.5 million Indians are subject to the military justice system. A legal system designed and implemented to serve the interest of colonial masters after the Mutiny of 1857 is still applicable to this group of Indians in the name of discipline. This book discusses the concepts of ‘justice’ and ‘human rights’, and makes a strong case for the application of these concepts to the armed forces, while maintaining their discipline and operational efficiency. The military justice system is rarely criticised in our country—it is generally ignored under the notion that it relates to a handful of uniformed personnel who volunteer to be governed by it. A natural tendency exists within the armed forces to defend the system, calling it ‘time-tested’. In addition, a veil of secrecy is drawn over military matters.

The highlight of this book is a critical analysis of the existing military justice system in India and its comparison with that of the UK and the USA. Across the world, there is a clear trend of change in the military justice system regarding the rights of the accused and the human rights standards. Some important elements of this change are the independence of judges, the establishment of standing courts, the right to legal representation and increased rights of the accused in terms of electing trial instead of summary procedures. This book points out the deficiencies in the Indian military justice system and argues that limitations on human rights must be provided for by law and should be consistent with international treaty obligations.

Everybody concerned with the military justice system—political leaders, military personnel, social scientists, lawyers and policy makers—should read this book.

Preface
Contents
Table of Cases

CHAPTER 1
The Idea of Justice and the Military Justice System
CONCEPT OF JUSTICE
NOTIONS OF JUSTICE
MILITARY JUSTICE SYSTEM
HISTORY OF INDIAN MILITARY JUSTICE SYSTEM

CHAPTER 2
Constitution of India and the Armed Forces
THE INDIAN CONSTITUTION AND THE ARMED FORCES
Fundamental Rights
Article 33
International Law
Changes in the Military Law in the UK
Military Law in the USA
Constitutional Interpretation
Article 21 of the Constitution
Fundamental Rights and the Military Legal System
CASES RELATING TO ARTICLE 33
THE ROLE OF THE LEGISLATURE AND THE SUPREME COURT

CHAPTER 3
Court-martial: System and Procedure at Trial
PROVISIONS OF COURTS-MARTIAL IN THE INDIAN AIR FORCE
AND THE NAVY
JURISDICTION OF COURTS-MARTIAL AS TO OFFENCE
JURISDICTION OF COURTS-MARTIAL AS TO PUNISHMENT
SUMMARY PUNISHMENT (OTHER THAN BY A COURT-MARTIAL)
REVIEW OF SUMMARY PUNISHMENT
Important Functionaries of the Court
PRE-TRIAL PREPARATION
Arrest
Investigation and Recording of Summary of Evidence
TRIAL BY COURT-MARTIAL
Assembly
Swearing or Affirmation of Court
Plea in Bar
WHEN ACCUSED PLEADS ‘GUILTY’
WHEN ACCUSED PLEADS ‘NOT GUILTY’
DEFENCE OF THE ACCUSED
Summing Up
FINDING AND SENTENCE
Conviction/Acquittal
Sentence
Confirmation and Revision of Finding and Sentence
Promulgation
APPEAL/REVIEW OF COURT-MARTIAL DECISIONS
PARDON, REMISSION AND SUSPENSION

CHAPTER 4
Comparative Perspective 1: The British Military
Justice System
COURT-MARTIAL
Royal Navy
SERVICE DISCIPLINE ACTS
THE ROLE OF CONVENING AUTHORITY
REFORM IN THE MILITARY JUSTICE SYSTEM
Reforms in 1996 and 2000
The Military Justice System: Specific Issues
Court-martial Members
Review and Appeal
Army Legal Services
Further Reforms
The Armed Forces Act 2006

CHAPTER 5
Comparative Perspective 2: The American Military
Justice System
MILITARY JUSTICE SYSTEM
Administrative Action
Non-judicial Punishment (NJP)
COURT-MARTIAL
Summary Court-martial
Special Court-martial
General Court-martial (GCM)
Convening Authorities
Unlawful Command Influence
Article 32 Investigations
Military Judges
Rights of Accused
Right to a Government-Funded Expert
Appeal
COURTS OF CRIMINAL APPEALS
De Novo Review
United States Court of Appeals for the Armed Forces
Review by the Supreme Court
Updating of Military Justice System

MILITARY COMMISSIONS
Conviction under Military Commission

CHAPTER 6
Critical Appraisal and Analysis
RIGHT TO FAIR TRIAL
PRE-TRIAL CUSTODY
PROVISIONS RELATING TO ARREST
RIGHTS OF THE ACCUSED
Legal Aid
Judiciary and Legal Aid in India
LEGAL AID: INDIAN MILITARY JUSTICE SYSTEM
Respondents’ Opinions
Right to Bail
Respondents’ Opinions
NON-JUDICIAL PUNISHMENT
RIGHT TO ELECTION FOR TRIAL BY COURT-MARTIAL
Statement of Witnesses
Pre-trial Information
Review of Punishment
Right to Appeal
ROLE OF CONVENING AUTHORITY
Unlawful Command Influence
Respondents’ Opinions
JUDICIARY OF THE ARMED FORCES
Respondents’ Opinions
MILITARY TRIBUNALS
SUMMARY GENERAL COURT-MARTIAL (SGCM)
SUMMARY COURT-MARTIAL (SCM)
Respondents’ Opinion on Summary Courts-martial
DISCIPLINARY COURT UNDER THE NAVY ACT 1957
MULTIPLE SYSTEMS OF MILITARY TRIBUNALS
SENTENCE AND SENTENCING
Sentence
Sentencing
Court Members v Judge Advocate
CRUEL, UNJUST AND DISPROPORTIONATE PUNISHMENT
DISPARITY IN SENTENCING: SENTENCING GUIDELINES

CHAPTER 7
Armed Forces Tribunal
BACKGROUND
APPELLATE FORUM IN INDIA
THE ARMED FORCES TRIBUNAL BILL
ARMED FORCES TRIBUNAL ACT 2007
Composition of the Tribunal
Jurisdiction of the Tribunal
Power of the Tribunal
Retrial
Appeal to Supreme Court
CRITICAL APPRAISAL
Service Matters

CHAPTER 8
Future Reform: Common Code
for the Armed Forces
PREVIOUS ATTEMPTS
DIFFERENCES BETWEEN THE THREE SERVICES ACTS
NEED FOR UNIFICATION
Uniformity
Joint Deployment
Future Amendments
Operational Effectiveness
ARMED FORCES TRIBUNAL
NEED FOR A COMMON CODE
PLEA BARGAINING

CHAPTER 9
Conclusion and Recommendations
RECOMMENDATIONS
Arrest and Custody
Right to Counsel
Non-judicial Punishment
Role of Convening Authority
Judge Advocate General
Military Tribunal
Sentence and Sentencing
Appellate Tribunal
Common Code for the Armed Forces
Bibliography
Index