Introduction:
The most powerful nations are built based on a powerful army. The sin qua non of an independent state lies in its ability to defend itself and it is the essence of sovereignty. Armed forces are organs of the state that are created with the purpose of maintaining the security and independence of the state. For this reason, armed forces have a separate judicial system that assists in maintaining discipline. The military justice system is created to reinforce a particular mode of behavior in the armed forces. A separate system of justice also ensures speedy trials. There are two main purposes of military law:
- To promote discipline and good conduct and
- To regulate administration and operational needs.
A separate military justice system comes with its range of pros and cons. On one hand, the military personnel can take decisions based on their experience. They have specialist military knowledge which can ensure your just and informed decision; however, independence and impartiality of the armed forces personnel could be a serious concern.
Need for a separate Military Justice System
The military and civil society exist separately and have their traditions. Therefore, they require different laws. Discipline is highly important in our military and they need speedy trials to ensure this. Civil judges lack the knowledge and experience required to deal with military cases. Members of the armed forces are placed in ranks and they are required to follow commands from their seniors and military justice creates a habit of being penalized for questioning authority. Members of the armed forces are punished for peculiar acts. The main reason for this is the obedience and strength that lies in unity. These qualities are necessary for the effectiveness of fighting forces.
Comparative study on Military Justice System in different nations
United Kingdom
The military justice system of the UK is comprised of the Service Discipline Acts. It consists of the Air Force Act of 1955, the Army Act of 1955, and the Naval Discipline Act of 1957. In 1966 the armed forces Act was introduced that brought the military justice system closer to the civilian justice system by providing a procedure to file an appeal against the court-martial sentence is in the house of Lord. It was also provided that the secretary of state shall pay compensation to the person who might have suffered in case the court-martial decision is reversed.
Summary appeal courts have also been established like the UK Armed Forces Discipline Act of 2004. The Armed Forces Act of 2006 was also passed to deal with military offenses, civilian offenses related to military forces, court-martial, service civilian court, and civil offenses in certain cases.
United States
The constitution of the United States provides for the formation of a military justice system. The Uniform Code of Military Justice was passed in 1951. It provides the procedures related to court-martials. Appeals against the court-martial orders may be done to the US Court of Appeals for Armed Forces. Some of the offenses is covered in the Uniform Code of Military Justice are bribery, misuse of power and authority disobeying lawful orders, not fulfilling the duty.
The right and privileges of military personnel are virtually the same as that of civilians but in certain cases, there are different standards of proof that are required by members of the armed forces because of their Oaths of office.
Canada
The National Defence Act was passed in 1950 in Canada and it deals with all the matters related to the Navy, Army, and Airforce of Canada. It provides for a Court-martial Appeal Board for appeal against court-martial orders. The procedures and penalties relating to court-martials are also provided in the same law.
Military Justice System of India
In India, the Army Act, the Navy Act, and the Air Force Act are laws that provide rules and procedures of the Indian Military Justice System. Separate laws are made for para-military forces some of these acts are the Border Scrutiny Force Act, Coast Guard Act, Assam Rifles Act, and Border Police Force Act of Indo-Tibet.
History
The existing military laws are mostly based on the army laws made during the British rule. Military justice in India was governed by the British Army Act from the mid-1700s to 1947. The power of the commander was restricted from 1824 onwards. The British wanted to protect their interests in India and for that purpose, they insured control over the armed forces. Flogging was the most common mode of punishment. Although there were provisions for Indians to be in the court-martial panels but the ultimate power to decide the case lied with the Britishers. These laws were changed after independence and three separate acts were created. These are:
- The Army Act of 1950
- The Air Force Act of 1950
- The Navy Act of 1957
Armed Forces Tribunal
The Indian Armed Forces Tribunal Act was passed in 2007 which led to the establishment of an Armed Forces Tribunal in India. It has two forms of Jurisdiction:
- Original jurisdiction on matters relating to the services and
- Appellate jurisdiction against court-martial orders.
An appeal against the order of The Tribunal lies in the Supreme Court of India.
Defects in the Indian Military Justice System
The Indian Military Justice System suffers from the following defects as it is based on a very old system.
- It does not provide any provisions relating to bail and therefore could be considered violative of article 21 of the Constitution of India along with Article 14 as the commanding officer has the discretion of bail and therefore it is an arbitrary decision.
- There is no prosecutor in summary court-martials and even the accused is not entitled to defend himself and this is violative of Article 22 of the Constitution of India read with article 21.
- Free Legal Aid is not provided to the accused this again violates article 22 of the constitution and the decision of the court is usually arbitrary in these cases therefore violating Article 14.
- The protection from double Jeopardy provided in article 20 of the Constitution of India is also not available in court-martials.
- The judges in court are not qualified judges they are just members of the military.
Case Laws
- In the case of Ex-Naik Sardar Singh vs. Union of India[1], the court set aside the punishment given to the appellant on the grounds that it was more serious as compared to the quantum of the offense. The appellant brought liquor without permission from the authorities for which he was given rigorous punishment of 3 months. The punishment was to help violative of section 70 of the Army Act.
- In the case of Shivaram Nair vs. Union of India[2], the Supreme Court justified higher punishment for less severe offenses considering that the most important virtue of an army personnel is discipline.
Conclusion
The military justice system followed in most of the democracies are very old. Although certain changes have been bought but many laws are still violative of the basic fundamental rights that are supposed to be available for all. This raises a very important question that whether the fundamental rights that are available to every human being can be abridged to insure discipline in military forces?
The main purpose of the military is to protect and secure the nation and therefore a strong sense of unity and security is required and the command of the authority should not be questioned. The rights and privileges of the officials are different from that of civilians are only because of the dignity attached to their officials. However, reforms are necessary as the need to question the authority may arise in extreme situations.
References:
[1] Ex. Naik Sardar Singh Vs. Union of India & Ors [1991] INSC 131
[2] Shivaram Nair vs. Union of India, Supreme Court Civil Appeal No 1093 of 1989
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