Military Laws and Practices - Future Reforms

MILITARY LAWS AND PRACTICES

FUTURE REFORMS

Presentationby

Maj Gen (Prof) Nilendra KumarDirector

Amity Law School, Noidaand

Director GeneralAmity Directorate on Research and

Innovation in Law & Allied Areas

Military law consists of the federal statutes and

regulations governing the armed forces, the

executive power of the central government and

the inherent authority of military commanders.

The purpose of military law is to promote

justice, to assist in maintaining good order and

discipline in the armed forces, to promote

efficiency and effectiveness of the military.

imply

changes with a view to improve.

The process of reforms, particularly in laws,

should be systematic regular and carried out

objectively.

Carried out by seeking comments and

suggestions from all concerned.

Why are reforms needed?

1.To make the compliance and enforcement more easy by simplification.

2.To make the laws more humane.3.To conform to the global best

practices.

Identification of a few areas warranting reforms

Area 1

Special Military Laws and Human Rights

What is meant by a special law?

A law directed towards a special subject or

special class of objects.

Example of Special Military Law

1.Armed Forces (Special Powers) Act.2.Legal regime concerning Peace

Keeping Operations.3.Tri service jurisdiction.4.Military Nursing Service Ordinance.

Legal entitlements which every person as a

human being possesses. They are universal and

belong to everyone, rich or poor, male or

female.

Military laws are generally humane and conform to HR norms.

Why?

This is so because they deal with subject matter

of :1.Enemy – The applicable IHL regime

demands humanitarian stance.2.Own troops – The accused is a colleague.

The action against him for a misdemeanour is with a view to maintain discipline with compassion.

3.Own citizens – The military has to be sympathetic and not viewed as an occupying force.

However, there are at times slow to keep pace

with the changing needs of the society.

1. Increase in subsistence allowance paid to the soldiers under arrest for upkeep of their families.

2. Permission to use mobile phones and access to TV and newspapers while in custody.

3. Fair and reasonable opportunities for career progression to women officers.

4. Framing of Rules under the Armed Forces (Special Powers) Act, 1958.

Need for many sided approach

1.Framing of rules2.Executive action

RecommendedFraming of Rules

1. Definition of ‘armed forces.’2. Difference between ‘disturbed’ and

‘dangerous’ situations.3. Threshold level to trigger above

decision.4. Warning before opening fire –

Language, duration, means and caution.5. Recording of the opinion of the officer of

the designated category.

Frame clear guidelines to lay down policy

about according/denial of sanction for

prosecution of offenders under Section 6.

PROTECTION OF HUMAN RIGHTS ACT, 1993

NHRC may be allowed to refer and

seek reports.

This would require statutory amendment.

EXECUTIVE MEASURES

Use the tool of court of inquiry for prompt and transparent investigations

1. Obligatory to convene inquiry in all cases of civil deaths, grievous injury or allegations of sexual harassment , extortion or destruction of property etc. Do so within 72 hours.

2. Co-opt a civil official.3. Woman officer to be a member/in attendance.4. Venue to be easily accessible to local public.

Video tape all military missions to achieve

greater transparency and accountability.

Incentives/awards for capturing militants

alive. Hopefully, this may cut down

number of fatal casualties.

ALLEGATIONS OF FALSE ENCOUNTERS AND FORCED DISAPPEARANCES

Allow local NGOs to lodge complaints

A civil magistrate to accompany each

contingent of Army for all missions. If not

feasible, reasons for the same be recorded. This would bring in transparency and independent

check.

SECTION 6

Decision to accord or deny sanction

within three months time period.

After the return of popular government there is

a tendency to revive cases against Army Units

and Personnel.

All complaints against Army personnel

pending in police stations should be

thoroughly probed in a time bound manner.

Unsatisfactory Media Response

Due publicity of cases where disciplinary

actions have been taken against military

personnel for human rights personnel.

Also publicise the complaints about HR

violation that were probed and found to be

baseless.

NEED OF THE HOUR

Urgent discussion on steps to change working of AFSPA would be a

pragmatic move to resolve an issue of major national concern.

Involve all stakeholders in the debate.

Standard operating procedures and training

must be aimed at cutting down collateral

damage.

COLLATERAL DAMAGEmeans

the damage to things that are incidental to the

intended target.

It is defined as the unintentional damage or

incidental damage affecting facilities, equipment or personnel, occurring as

a result of military actions directed against

targeted enemy forces or facilities.

It must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.

State of Rajasthan V Union of India; 1978 (1) SCR 1

Plea bargaining

Background

1.Number of disciplinary cases of serious nature are increasing.

2.Delay in disposal of cases.3.Case of moral turpitude on the rise.4.Adverse media reports.

Plea bargain

What is it?It is an agreement in a criminal case

between the prosecutor and accused whereby the accused agrees to plead guilty to a

particular charge in return for some concession from

the prosecutor.

Its Need

In the absence of ‘plea bargain’ the accused

has a tendency to fight it out. He does not

plead ‘guilty’ to own up his culpability.

The accused accepts his culpability with regard

to the charge for which there is irrefutable

evidence. A plea bargain would lead to disposal

of the case.

To illustrate a store holder may not own up to a

charge of dishonest misappropriation of good

funds. But he may accept careless or negligent

discharge of his duties that led to the loss.

What it actually entails?

1.The accused will plead guilty to a less serious charge, or one of several charges, in return for the dismissal of other charges; or

2.He will plead guilty to the original charge in return for a more lenient sentence.

This be suitably disseminated and its recourse

encouraged.

This would inculcate honour code and cut

down avoidable pending cases disposal.

1. Need for better training of officers who have to exercise disciplinary powers.

2. Issue explanatory letters to guide all rank.

Area 3

Armed Forces Tribunal

The Armed Forces TribunalAct, 2007 (55 of 2007)

came into force on 15 June 2008

a) Chairperson - Retd. Judge of the Supreme Court or a Retd. Chief Justice of High Court.

b) Judicial Member – A sitting or a former Judge of a High Court.

c) Administrative Memberi) He has held or has been holding the rank of Maj Gen or above for a total period of at least three years in the Army or equivalent rank in the Navy or the Air Force.

ii) He has not served for not less than one year as JAG in the Army or the Navy or the Air Force and is not below the rank of Maj Gen, Commodore or Air Commodore respectively.

CompositionSection 5(2)

Every Bench shall consist of one judicial

member and one administrative member.

Jurisdiction, Powers and Authority against Court Martial

Section 151.Appeal against any order, decision,

finding or sentence passed by a court martial, or any matter connected therewith or incidental thereto.

2.To grant bail.

3. An appeal will be allowed where the finding is legally not sustainable, or the finding involves wrong decision on a question of law or a material irregularity in the course of trial resulting in miscarriage of justice.

NOTEWORTHY FEATURES

1.UOI may go in appeal.2.May enhance the sentence awarded

by a court martial Section 14(6)(c).3.Order retrial (Section 16).4.Order costs (Section 18).

Appeal not to be admitted unless other

remedies exhausted.

Section 21

Appeal allowed to the Supreme Court

Section 30

Trial before Tribunal to be judicial proceedings

Section 36

Two recent judgments having a major impact

on AFT Act.

1. When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

...2…

2. The High Court will not entertain a writ petition under Article 226, if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.

Maintainability of appeal to Supreme Court against final decision or order AFT under Section 30 without resorting to procedure prescribed in Section 31. Held, there is no vested right of appeal to Supreme Court against final decision of Tribunal except

where order passed by Tribunal is in exercise of its contempt jurisdiction.

Imperative that appeal to Supreme Court should

be preceded by leave of tribunal certifying that

question of law of general public importance was involved, or by obtaining leave of

Supreme Court, in terms of Section 31.

Moreover, application for grant of certificate must first be made before tribunal before approaching Supreme Court. Where Tribunal grants

certificate for filing appeal, appeal would be maintainable as of right.

The Tribunal does not have jurisdiction over

matters relating to leave and postings.

It has no power to award compensation.

There is no convincing justification to exclude

these matters.

Hence, the law needs to be amended so as to

enlarge the jurisdiction in this direction.

Area 4

Difference between three Service Acts

S.No.

Particulars Army Act

Navy Act

Air Force Act

1. Summary Court Martial

Yes No No

2. Detailment of members at court martial

By name

By rank

By name

3. Brief reasons in support of finding

Recorded No No

In the Navy, every court martial is required to

be attended by a Judge Advocate.

The decision of a Naval Court Martial does not

require confirmation, except in the case of

death.

The verdict of acquittal is final in the case of

Navy. Not so in the Army and Air Force.

In the Navy, the Judge Advocate is not present

in the closed court when the members deliberate on the finding. In Army and

Air Force they are.

The Presiding Officer of a Court Martial is nominated by the Convening Authority in the case of Navy. In the Army and Air

Force, the senior most officer of the Court Martial becomes the Presiding Officer.

Power of Review vested in the Judge Advocate

General (Navy).

Need for a Uniform or Common Code for three

services.

Joint Deployment

Deployment

in the context of military, means the movement

of armed forces and their logistical support.

1.ANC Command2.Strategic Command3.HQ IDS4.Tri Service Operational Exercises5.Peace Keeping Operations

EXAMPLES OF PEACT TIME

1.Movement Control Organisation2.NDA3.DSSC4.NDC5.DRDO6.NCC

Uniformity

Uniformity means overall sameness homogeneity, or regularity. It is the

quality or state of being uniform.

Why is uniformity needed

1.For consistency2.To avoid any impression about

leniency or bias3.For better morale

All stakeholders should have a confidence that

law shall be applied in a uniform manner.

Operational Effectiveness

EFFECTIVENESSmeans

the degree to which something is successful in

producing a desired result, success.

OPERATIONAL EFFECTIVENESSimplies

any kind of practice which allows a force to

maximize the use of their output by developing their actions or response

more effectively than enemy or opposing

force.

1. Demands prompt/speedy disposal of cases.

2. Minimum displacement of manpower, resources and efforts.

3. Thereby achieve economy.4. Integral formation would have greater

say/ state in prompt and desired disposal.

5. Enhanced respect for authority of commander.

Previous attempts

Various attempts made in last four decades

have not succeeded.

FOR EXAMPLE

1. Committee set up by the GOI in 1965.

2. Various efforts by the Chiefs of Staff Committee.

1. Lack of understanding.2. Ego of each service.3. False notion that mutual power of

command provisions will suffice.

4. Absence of political will.5. Vested interests of non military to

keep three services separated.6. JAG Department overwhelmed with

routine work.

Need for unification

Common Code for three services

EXAMPLES

1.USA - The Uniform Code of Military

Justice (1950)2.France - Law adopted by the

French Senate (2011)3.Canada - National Defence Act4.Israel - Defence Service Law

a)A new Act to apply to Army. Navy and Air Force which would replace the three existing statutes; or

b)A new Act that would only be applicable to the specific situation of tri service tenure.

1. Complications when the offence relates to tri-service tenure and it comes to light when one or more offender is back with parent service.

2. What if one service wants to invoke own jurisdiction while the other(s) insist on tri service law.

Do away with existing separate Acts and

frame a common law.

If Armed Forces Tribunal Act can extend over

all three services, why not a uniform code?

Area 5

Future amendments

AMENDMENTmeans

modification on change in an existing Act or

statute.

Abolition

Rank of 2 Lt and equivalent

Upgradation

Rank of GOC AreaRank of Sub Area Cdr

1. Provide for women officers2. Take stock for

a) Cyber/IT offencesb) Environmental crimes

3. Video conferencing to take evidence4. Give option to an accused to elect

trial by court martial or military judge

5. Separate pre trial with trial/post trial functions

6. Make Rules under AFSPA

Enlarge the jurisdiction of Armed Forces

Tribunals so as to bring in grievances concerning leave, transfer, postings

and summary court martial.

A review of the Cantonment Act so as to

bring the cantonments and military stations

at par in the sphere of civil administration

and governance.

Area 61.Legal cover in the Regular Army be

extended to Indep Bde/Stn HQ level.2.Direct induction in the JAG

Department be by way of Permanent & Regular Commission.

3.Shift Institute of Military Law from Kamtee to Delhi.

4. Setting up of a Faculty on Security Jurisprudence at the National Defence University.

5. Introduction of an LLM programme in Military & Security Laws.

6. Service in the JAG Department be reckoned as judicial service.

CONCLUSION

Urgent need to set up a study group by the

Ministry of Defence to recommend reforms &

changes to military laws and practices.