REFORMS IN MILITARY LAWS

Lt Col Satish Bakshi, Advocate

Military Law stands today at cross roads. It may either decide to take the progressive path towards a pro active, watchful and humanitarian direction or may well decide to trudge along the traditional and narrow channels of decades old vintage.

Recent years have witnessed unprecedented demands made on the role, efficacy and credibility of military law. By now during this calendar year, death penalty has been announced to four accused persons by different courts martial. A number of senior officers of Brigadier and above ranks have been tried by courts martial. A few are awaiting their arraignment. A three star general rank officer is facing disciplinary action. The Central Government appears to have made up its mind on the composition and jurisdiction of the proposed courts martial which otherwise appears a distant dream. The Supreme Court has admitted for hearing the first ever case which sees the Army and Central Bureau of Investigation on opposite sides on a matter concerning prior sanction needed before embarking upon prosecution in a situation involving action taken by the military personnel while operating under Armed Forces (Special Powers) Act.

Project for setting up of the Armed Forces Tribunal continues to be on the drawing board. Despite a bill for its formulation having been introduced almost two years back, not much progress has been seen thereafter. In the meanwhile total number of cases relating to military law before higher judiciary has crossed 8000 figure. There have been many instances of petitions presented to the courts in the form of public interest litigation. If one is to include the data relating to those pinning their hopes on in house statutory remedy in the shape of statutory complaints, the list may show a large number of senior officers in the category of aggrieved personnel. There are numerous instances of higher judiciary awarding compensation to the victims of human rights abuse at the hands of men in uniform.
The Army Act, 1950 (Act 46 of 1950) forms the backbone of Military Laws. The statute has been subjected to hardly any major changes during last six decades. A few amendments that took place were all result of pronouncements of the apex court. Examples in this regard may be cited of courts martial required to giving reasoned orders in support of findings, set off period from term of imprisonment awarded, computation of period of limitation for trial or procedure for hearing of charge. This shows that no noticeable desire to improve or change has emerged from within.

System of summary court martial and summary trial has outlived its utility. Their powers as a forum for discipline enforcement warrant considerable reduction. Accused persons should get a fair trial by way of effective opportunities for their defence. Courts martial held in remote areas where no experienced counsels are available may not be expected to be always fair and balanced. An accused should have the option to elect trial by a jury or by the Judge Advocate General Dept. officer sitting as military judge. A pool of Judge Advocate General officers should also be assigned prosecution duties in complex cases. The concept of standing courts martial and standing courts should be introduced. Courts martial must be empowered to award fines and grant compensations. All trials relating to sexual offences must have one or more women officers as members. Delays in completion of courts martial deserves to be strictly curbed.

A new look is needed towards measures necessary to make military trials more speedy. Mandate of the Supreme Court in C S Gill’s case (AIR 2000 SC 3425) to employ a Judge Advocate of a rank not lower than the accused must be unfailingly followed. Courts Martial must be uniform and consistent while awarding punishments irrespective of the rank and post of the accused. Notion of “Plea bargain” should be introduced. Suitable steps should be taken in the spheres of correction and reformation.

The reach of operational law should be increased to cover legal opinion, in cases of cordon and search operations, preparation of seizure memos, recording of confessional statements and filing of First Information Report etc. Presence of a Judge Advocate General officer must be mandatory during all investigations in the matters concerning loss of human lives or sexual offences.

Judge Advocate General must be elevated in rank and status. His Department should be suitably expanded to afford legal cover at grass root level of Brigade and Stations. The Judge Advocate General Dept. should be brought under functional control of Ministry of Defence. This will go a long way to dispel the notions of command influence and dilution of objectivity. Laws governing three services should be similar in approach and contents. Moreover, the Navy and Air Force must be provided with their integral full-fledged Judge Advocate General Dept. as opposed to the present shape of being a mere adjunct of administrative branch.

Progressive training of legal personnel is an inescapable requirement. Institute of Military Law requires considerable boosting in terms of guest / visiting faculty and diversified training curriculum to meet wide range of legal dimensions. It should be the nucleus knowledge dispenser in the fields of military law enforcement, human rights, law of peace keeping operations, international humani-tarian laws and legal issues concerning defence procurements. Finally, it is to be remembered that robust military laws administered suitably by appropriately strengthened Judge Advocate General Dept. specialists alone will help in keeping the armed forces personnel remain in desired standard of discipline.