Armed Forces Tribunal (AFT) appointments underway : Military Jurisprudence - coming of age ?

MILITARY JURISPRUDENCE : COMING OF AGE ?


Navdeep Singh


“Draconian”, maybe not, “archaic”, perhaps

Many pejorative adjectives have been used to describe the present system of military justice in India, but does it deserve such criticism ?. More than the statutes themselves, the problem perhaps is with the executors, the method of understanding the spirit behind, and the final implementation of the statutory provisions of the Army Act, 1950, Air Force Act, 1952 and Navy Act, 1957. The provisions of these Acts, though oppressive in parts, were never meant to be draconian and do have a number of inbuilt checks and balances, but of course the method of using the best of these is open to debate. So what was wrong with the system that forced the govt to bring in the Armed Forces Tribunal Act, 2007 ?, the one line answer echoed in legal corridors would be - ‘lack of an effective appeal’. The same sentiment was reflected by the Supreme Court in the case of Lt Col Prithi Pal Singh Bedi Vs Union of India (1982) where the Court observed that the absence of even one appeal and power to review evidence was distressing and a glaring lacuna.

Where in the world would you find a judicial system without an appeal, here in India of course. The three Acts did not contain a single provision that could be deemed akin to a judicial appeal. There was a provision of pre and post confirmation petitions but these were rarely used in a fashion more than a mere formality. No judicial authority had the jurisdiction to look into or examine the evidence on the basis of which court martial sentences were rendered or the merits of the issues involved. The High Courts and the Apex Court under the writ jurisdiction could of course intervene but only in cases where there was a flouting of statutory provisions or when the sentences rendered were particularly harsh and not commensurate with the offence. The Supreme Court further observed in Ranjit Thakur Vs Union of India (1987) that conscience shaking sentences which are irrationally disproportionate would not be immune from judicial review. The Supreme Court opined that irrationality and perversity were definite grounds wherein Courts could intervene. These shortcomings notwithstanding, it would not exactly be appropriate to say that the three military Acts are without enough checks to avoid miscarriage of justice, there are ample provisions parallel to those available under the criminal system of jurisprudence but the problem remains that unlike the criminal courts, courts martial are presided over not by judicial officers but by officers of the regular army who neither have the acumen nor the bent towards legal and judicial modalities. Moreover, all procedures finally leading to conviction by a court martial (such as Courts of Inquiry, Summary of Evidence etc) are handled by military personnel who may just follow provisions of military Acts and Rules in formal letter but not in spirit - and this makes all the difference. And this also brings us to the answer why a body of professionals such as the AFT is so very urgently required to sit in judgement and appeal over justice rendered to men and women in uniform by another set of men and women in uniform.

The military Acts of India were derivatives of similar Acts of the British and that was the basis why these Acts seemed oppressive. These were moulded as such so as to maintain a grip on discipline over the native Army. The existing Army Act of India, for example, can trace its origin to East India Company’s Mutiny Act, 1754 and the Articles of War of the late 1800s, followed by the Indian Army Act of 1911. Of course this could not be justification enough to retain provisions such as Summary Court Martial after independence or to use terms as ‘customs of war’ in these Acts leading to ambiguity of action by those who want to repress. There is no place for ‘customs’ and ambiguity in criminal jurisprudence and all provisions certainly need to be codified and brought out in black and white. Yes, there may be a difference in the quantum of punishment prescribed for offences in operational and non-operational areas and there may be operation-specific offences but all need to be put in words without leaving any scope of indistinctness in action. Other countries following contemporary systems of justice such as the UK and the USA have since long recognised the need of reducing ‘customs’ to the barest minimum and having an elaborate system of appeal, but India, despite observations by various High Courts, committees and even the Supreme Court, failed to come out of a crude grundnorm which forms the basis of the Army, Navy and Air Force Acts till date.

So how would the AFT help ?. Firstly, the AFT would be a forum of professionals with judicial and military background, a perfect mix to handle legal issues of the military. While the Chairperson can either be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court, Judicial Members shall be former Judges of High Courts. The Administrative Members would be retired Major Generals or above of any of the three defence services. Each bench of the Tribunal shall consist of a Judicial and an Administrative Member. The Tribunal shall have the power to deal with all findings, orders and decisions of Courts Martial and related matters. As a welcome measure, the AFT has also been granted the power to release persons under military custody on bail. The AFT has also been conferred with powers of Contempt. Unlike the Central Administrative Tribunal (CAT), an appeal from the AFT shall lie directly with the Supreme Court.

Besides courts martial, the subject matter of the AFT shall also include service matters such as remuneration, pension, retiral benefits, tenure, appointment, seniority, promotion, superannuation and the like. However Summary Court Martial awards except where dismissal or imprisonment over three months is awarded, would not be under the ambit of the Tribunal. Transfers, postings and leave related matters shall also not be under the purview of the AFT. In case of service matters, even dependants, successors and heirs would be able to approach the Tribunal for justice.

The setting up of the AFT which is bound to bring the much needed relief to military litigants, shall also ensure handling of critical issues by former members of judiciary who would be from outside the ‘chain of command’ and therefore dealing cases with a clean slate with no biases or prejudices. They shall of course be assisted by former military officers - the administrative members, who would, with consensus, be providing important inputs resulting in what hopefully would be well-rounded judicial pronouncements meeting the aspirations of all affected. The AFT would also be in conjunction with the observations by the Supreme Court about providing a proper appellate body for courts martial. But the AFT, without in-house introspection (below) would not be an answer to the shortcomings of the system. What needs to be eliminated is the subjectivity at all levels, starting from initial stages of Inquiry ending with the Trial. The letter of law at all stages needs to be followed in spirit and not as a sheer formality, an effective system of defence for the accused needs to be put into place and senior officers in the chain of command need to be sensitised so as not to interfere in the deliverance of justice in the military. Presiding officers and officers of the JAG Branch have to be absolutely inert from slanted influences and pre-decisions at all levels.

Objectivity, change in judicial perception coupled with the inception of the AFT, hopefully this would put to rest those strong adjectives for military system of jurisprudence.