A STUDY OF PROBLEMS, PRACTICES OF COURT- MARTIAL PROCEEDINGS AND POWER OF JUDICIAL REVIEW IN INDIA (SUMMARY) A. Introduction The struggle for independence was over on 15th August, 1947. But, the attainment of independence was not an end itself. It was only the beginning of a struggle, the struggle to live as an independent nation and at the same time establish a democracy, based on the ideas of justice, liberty, equality and fraternity. The need of a new constitution forming the basic law of the land for the realization of these ideas was paramount. Therefore one of the first tasks undertaken by India was framing a new constitution. The position of the Armed forces in the Indian Constitution was that List I, Entry I provides for the defence of India and Entry II provides for Naval and Air Force. The President is the Supreme Commander of the Defence Forces and exercise of this command is to be regulated by Law. The country expects the personnel of the Armed Forces to safeguard the security and the sovereignty of India and lay down their lives to achieve it. It is the duty of the country to provide prompt and impartial grievance resolution mechanism especially when speedy justice has been included as a fundamental right in interpreting Article 21 of the Constitution by the Hon ble Supreme Court of India in Hussainara Khatoon case. The court held that it is the fundamental right of every citizen of the country to have legal aid. Because of poverty, ignorance of law, lack of money and any other factor one cannot be deprived his rights available in the form of fundamental rights. If, the country expects the best talents to join the Armed Forces and is not deprived of the services of bright and courageous young men society, they must be assured adequate machinery to get justice. This is more so when unlike their civilian counterparts Parliament can by law curtain and even denies to them any fundamental right. Similarly Article 311 which contains a very important 1
protection and safeguard to government servants regarding removal, reduction in rank, suspension etc is inapplicable to the Armed Forces. While indiscipline in any public service is not desirable and every service dispute should be adjudicated promptly the need is definitely much more so in the case of Armed Forces. While maintaining the discipline in the Armed Force, the dignity of the individual must be respected. It is necessary to ensure that Armed Forces are not deprived of the services of the cream of the society and that the bright and courageous among them don t keep out on account of inadequate machinery for getting justice in the Armed Forces or for fear of being punished for no wrong done by them, it is equally necessary to ensure that punishment is not disproportionate to the offence and also to make the military law more humane and dynamic to bring it in tune with the culture in the Armed Forces of the developed countries. It should be remembered that a soldier s life is not a comfortable one. Most of the time the soldier remains away from his family. It is the sense of pride and sacrifice in the cause of country s defence that sustains him. It would not be proper to deny him justice which is available to other citizens of the country. It must also be remembered that military discipline cannot be based only upon domination and implicit obedience to the orders of the superiors. The seniors must continuously demonstrate their competence and technical ability in order to command respect and loyalty of those under them. It is not correct to say that in as much as the number of persons affected by military law and the courts martial are small because the members of the Armed Forces have voluntarily submitted themselves to the existing system with all its rigors, no reform of law is called for. The higher standards of conduct and discipline in the Armed Forces are called for not only to keep in readiness an efficient fighting machine but also to command public respect for the Armed Forces. Justice and discipline should go together. B. Objectives of the Study The objectives of this research work are to touch all the important facets of the Court-Martial and Judicial Review in India in a comprehensive way and to 2
achieve new insights into it. The main objectives of the present research work are as follows: (a) (b) (e) (f) (g) (h) (i) (j) To trace the origin and development of the Military law in India. To find out various Privileges and Immunities available to Armed Forces personnel. To examine the offences pertaining to body and property in Armed Forces and the punishment prescribed for them. To study the procedure of Court of inquiry and Summary of Evidence required for framing issues and conducting proceedings of Court-martial. To examine the procedure and method for disposal of cases of Armed Forces. To make a comprehensive study on Court-Martial, its nature and Scope. To understand the role of Courts in safeguarding the rights of Armed Forces by passing various writs, Judicial Review and its scope. To evaluate the relationship between Military law and Fundamental Rights enshrined in our Constitution. To find out the extent of applicability of principles of Natural Justice and Speaking Orders in Court-Martial. To evaluate whether the punishment inflicted by Court-Martial is proportionate to the offence committed by the accused. C. Research Methodology The study is doctrinal in nature. An attempt is made to make the study useful by dealing with all the important cases decided by the Supreme Court of India, taking into consideration all the Acts pertaining to Army, Navy and Air Force. D. Scheme of Chapters The present research work has been divided into nine chapters. 3
Chapter-1: Introductory articulates the problems, of the study, its aim and object. The review of the literature has been included. The research work carried out in India and abroad is also referred to make the study more useful. Chapter-2: Military Law: Origin and Development traces the development of the Military law in India, various Privileges and Immunities available to Armed Forces personnel, Court-Martial: Meaning and Scope, Historical Perspective of Military Law, Establishment of Certain Paramilitary Forces and the provisions of the Constitution of India as applicable to Armed Forces Personnel are also explained. Chapter-3: Military Law: Object, Application and Offences deals with various types of offences pertaining to Armed Forces. In Armed Forces to maintain the discipline it is mandatory to abide by the various rules and regulations prescribed by Army Act 1950, Air Force Act, 1950 and Navy Act, 1957. In this chapter various offences under Army Act 1950, Navy Act 1957 and Air Force Act, 1950 and their punishments including penal deductions have been critically analyzed. Chapter-4 :Inquiry under Military Law deals with court of inquiry, courts of inquest and Board of offices. An inquiry is ordered to collect the evidence and facts. Courts of inquiry are usually convened to inquire into losses or destruction of Government property, deserter, prisoner of war, any serious breach of discipline, death or injury to personnel subject to military law and other similar matters. Chapter-5: Procedure for Disposal of Cases deals with framing of charges, summary of evidence and recording of evidence. Framing of charges against an accused person is a technical matter and involves legal skills and experience. Summary of evidence, importance of summary of evidence and use and role of summary of evidence to the accused at the time of trial. Chapter-6: Court-Martial Proceedings in Indian Army, Air Force and Navy deals with the procedure of Court-Martial in Armed Forces. Court-Martial is the method of dealing with an accused charged with an offence under Army Act 1950, Air Force Act 1950 and Naval Act 1957 and disposal of disciplinary cases in military. 4
Chapter-7: Court-Martial: Procedure and Appeal deals with various provisions regarding proceedings and procedure of court-martial, Investigation and hearing of charges. In addition, remand of accused, summary disposal of charges against officer are also explained. Chapter-8: Court Martial and Judiciary cover the role of judiciary in protecting the rights of defence personnel. Endeavour is also made to analyse the important decided cases to make the study more effective. Chapter-9: Conclusions and Suggestions deals with conclusions. Based on the study following suggestions are recommended. (a) (b) (e) (f) (g) (h) (i) (j) Constitution of a Court of Military Appeals Curtailment of Command Influence The Position of Judge Advocate Requirement of Legal Expertise Regulation of Power of Court-Martial Accused to be a Competent Witness Bail Pre- Trial Delays Legal Aid The Gallantry Awards 5
A STUDY OF PROBLEMS, PRACTICES OF COURT- MARTIAL PROCEEDINGS AND POWER OF JUDICIAL REVIEW IN INDIA (ABSTRACT) A. Introduction A nation depends upon its military for the safety and security of its nationals and their property. The Security is the first concern of the people of a nation. In fact, military is an important, in times of peace as well as in times of war. India got the independence on 15th August, 1947. But, the attainment of independence was not an end itself. It was only the beginning of a. struggle, the struggle to live as an independent nation and at the same time establish a democracy, based on the ideas of justice, liberty, equality and fraternity. The need of a new constitution forming the basic law of the land for the realization of these ideas was paramount. The problems of defence people have not received much attention in the past and there are signs of uneasiness among the personnel manning defence forces. Feeling of being subjected to injustice is one, which must be taken care of at the earliest. The manner in which the system of justice is operating in three forces cannot be described as satisfactory. The fault does not lie as much in three Acts governing the three forces as in the way they are being executed and administered by the amateur judges of courts-martial. Academicians and law commentators have completely, ignored this important branch of law. In absence of any authentic commentary on the Act, we cannot expect the judges of the courts-martial to administer justice in a precise manner. The commanders, staff officers and Unit Commanders have to refer to various legal references for the discharge of their day to day functions and other officers have to study military law for recording of summaries of evidence, holding courts of inquiry, performing the duties of prosecutors, defending officers, judge advocates and such other purposes to deal with disciplinary cases. A lot of confusion exists in respect of rules of adjustment of jurisdiction between criminal courts and courts martial among the Armed Forces personnel as well as civil authorities. In the process of correct exercise of jurisdiction at times results in miscarriage of justice. Over the years the Supreme Court and High Courts have had occasions to comb through the various provisions of the Act primarily to test their constitutional validity in the course of which a number of obiter and many lucid interpretations of the Act have cqme.tq be recorded. B. Objectives of the Study The objectives of this research work are to touch all the important facets of the Court Martial and Judicial Review in India in a comprehensive way and to achieve new insights into it. The main objectives of the present research work are as follows: (a) To trace the origin and development of the Military law in India.
(b) (e) (f) (g) (h) (i) To find out various Privileges and Immunities available to Armed Forces personnel. To examine the offences pertaining to person and property in Armed Forces and the punishment prescribed for them. To study the procedure of Court of inquiry and Summary of Evidence required for framing issues and conducting proceedings of Court-martial. To examine the procedure and method for disposal of cases of Armed Forces. To make a comprehensive study on Court-Martial, its nature and Scope. To understand the role of Courts in safeguarding the rights of Armed Forces personnel by passing various writs and Judicial. To evaluate the relationship between Military law and Fundamental Rights enshrined in our Constitution. To find out the extent of applicability of principles of Natural Justice and Speaking Orders in Court-Martial. C. Scheme of Chapters The present research work has been divided into nine chapters. Chapter-1 : Introductory Chapter-2 : Military Law: Origin and Development Chapter-3 : Military Law: Object, Application and Offences Chapter-4 : Inquiry under Military Law Chapter-5 : Procedure for Disposal of Cases Chapter-6 : Court-Martial Proceedings in Indian Army, Air Force and Navy Chapter-7 : Court-Martial: Procedure and Appeal Chapter-8 : Court- Martial and Judiciary Chapter-9 : Conclusions and Suggestions D. Suggestions Based on the study some meaningful suggestions are recommended. They are as follows: (a) (b) Constitution of a Court of Military Appeals Curtailment of Command Influence The Position of Judge Advocate Requirement of Legal Expertise Regulation of Power of Court-Martial Accused to be a Competent Witness Bail Pre- Trial Delays Legal Aid Gallantry Awards