Military Laws in India - A Critical Analysis of The Enforcement Mechanism - IPleaders

4/18/22, 8:01 PM Military laws in India : a critical analysis of the enforcement mechanism - iPleaders
Military laws in India : a critical analysis of the

enforcement mechanism
By Diganth Raj Sehgal - September 21, 2021
Image Source: https://bit.ly/3Cptzl8
This article is written by Dhruv Dubey, from Jagran Lakecity University Bhopal. This
article talks about the various laws there for defence and their loopholes.
Table of Contents 
1. Introduction
2. Military laws in India : an overview
2.1. Navy Act
2.2. Army Act
2.3. Air Force Act
3. Defects in the Indian Military System
3.1. No Bail provision
3.2. Double jeopardy
3.3. Trial during a Summary Court-Martial
3.4. No right of appeal
4. Loopholes surrounding the enforcement mechanism
5. Amendments implemented and scope for improvement
6. Conclusion
7. References
Introduction
Military laws are the laws that govern the Army, Navy, and Airforce. These military laws
give soldiers some special powers and also bind their behaviour. Under military law
certain rights of the soldiers have been restricted and also some special rights have been
given to them. For instance, the Indian Constitution says that those people, who are
chosen for performing national duty, like soldiers or people working under bureaus, can
not move to High Court or Supreme Court if their fundamental rights get restricted under
some special acts like military laws.
https://blog.ipleaders.in/military-laws-in-india-a-critical-analysis-of-the-enforcement-mechanism/ 1/13
These laws also help in maintaining proper discipline in the army and ensure proper
working of the Army.
Military laws in India : an overview

India has its laws for governing its Army. These laws apply to the men and women
working in an Indian force, which are as follows:
Navy Act
1. Before India accomplished freedom, the Naval Forces were being represented by the
Indian Navy (Discipline) Act, 1934, which was passed as per segment 66 of the
Government of India Act, 1919.
2. Later on, the act was replaced by the Naval Forces, brought up in India-the
arrangements of the Naval Discipline Act 1866. Likewise, the U.K. The Maritime
Discipline Act was adjusted and the Indian Navy Discipline Act, 1934 was authorized.
Several constitutional changes were made. Because of this, it was felt important to
change the enactment identifying with Naval Forces.
3. Meanwhile, in 1950 the modified Army Act and Air Force Act were relaxed; it was
unrealistic to modify the law managing the Naval Forces as the then existing Indian
Navy (Discipline) Act, 1934 depended on the Corresponding British Act.
Army Act
India has various legislation for its military, and one most important legislation is the
Army Act. This act was enacted in 1950, and it applies to soldiers who are enrolled under
this Act and to the soldiers who belong to the Indian reserve force.
Air Force Act

The Air Force Act was commenced around the year 1950 and applies to soldiers who are
enrolled under this Act and to the soldiers who belong to the Indian reserve force.
In India, certain Para-military forces have laws almost like people who apply to defence
services. These include:
The Border Private Security Power Act,
The Coast Guard Act,
The Border Police Act of Indo-Tibet
The Assam Rifles Act.
Those Acts were replaced by the Military Act. The first intention with which the British
created military value was to empower discipline in Indians after the Mutiny of 1857.
This was the principal objective for the Indian Army Act 1950, the Navy Act of 1957 and
the Air Force Act, 1950.
Defects in the Indian Military System

There are various defects present in our military system. Our military law sometimes
reflects the ancient British justice system and therefore has some defects in it. To
overcome these defects, it is very important to formulate a proper justice system.
No Bail provision
An arrested military official has no provision related to bail. The superior of military
officials may grant the bail but it depends on their authority. The Supreme Court has
given various standard principles upon which bail may be granted. However, providing
bail depends on someone’s authority, which looks unreasonable.
Military laws don’t allow an offender to hire a civil lawyer to defend him or to be
defended by an officer known as a defending official. This creates a shortage of legal aid
services which is also a right under the Indian Constitution. (Article 21 of Indian
Constitution).
Double jeopardy
Under the Indian constitution Article 20(2) enriches constitutional protection against
prosecution. It is available under the military justice system but this defence is not
available before a civil court to stop a second trial on the same offence.
Trial during a Summary Court-Martial

The trial of offender military workforce is held at the time when a Special Court is
alluded to as the Summary Court Martial. The SCM trial doesn’t match with the measure
of justice set by the Apex Court and the High courts, because there’s no prosecutor, and
along these lines, the SCM plays out some of the elements of the prosecutor.
Infringement of Article 22 of the Indian Constitution happens when the accused can’t
defend himself with the help of a legal advisor or a protection official. SCMs are seriously
criticized by the Supreme Court and high courts for failing inequitable and reasonable
sensibility tests.
No right of appeal
There is no arrangement for the convicted to appeal to a higher court. The Military Act
expresses that a person who sees himself as grieved by finding or sentence of a court-
military may file a request with the central government, the head of the military, or any
recommended superior official in charge of the one that confirmed the finding or
sentence, and accordingly the central government, the head of the military or the other
official may pass such requests because the case could likewise be (Section 164(2) of
the Military Act).
Individuals from Court Martial-Members aren’t prepared or legally qualified to regulate

justice. They’re under a different commanding influence and don’t practice their
judgment independently during a trial.
Loopholes surrounding the enforcement

mechanism
In a state composed of sovereign states, enforcement is traditionally decentralized,
which accordingly gives a fundamental job to the state that has been or might be the
victim of an infringement. The different states may decide to help the harmed state, as
per their interest – which should incorporate the overall interest of each individual from
that society to have its legal system respected.
This decentralized design of execution is especially improper for the International

Humanitarian Law (IHL) pertinent to outfitted struggles, for the accompanying reasons.
To begin with, it would be truly astounding if questions emerging out of violation of the
IHL were to be settled calmly, essentially in global armed conflicts. Surely, International
Humanitarian Law applies between two states since they are engaged in armed conflicts,
which demonstrates that they can’t resolve their disputes calmly.
Secondly, despite an armed conflict between two states, third states may have two
responses. They can favour one side for reasons which are either simply political or then
again, whenever related with international law, derive from Jus ad Bellum. They will,
thus, help the survivor of the hostility, autonomously of who abuses the Jus in Bello.
Other third states may decide not to favour one side. As neutrals they can assist with
guaranteeing regard for International Humanitarian law, however, they will consistently
take care to guarantee that their commitment for regard for International Humanitarian
law won’t influence their essential decision not to favour one side.
Amendments implemented and scope for

improvement
An enormous number of cases that are brought under the watchful eye of the upper civil
courts show that the military’s justice delivery framework has been moving at a truly
slow speed and has not been prepared to satisfy men’s aspirations in uniform. The larger
number of legal cases tested by the Ministry of Defense and therefore the headquarters
of the soldiers is quite a lot.
Many consider that the system of the military is against the Constitution’s liberal soul
and there emerges an essential need to find some kind of harmony between a
democratic society’s pressures and military discipline’s prerequisites. The military justice
system of India can be traced back to England’s military laws. After the Mutiny of 1857,
it had been made by the British to control natives and has some significant flaws. They
are-
No bail arrangements for the arrested military individual on charges.
Insufficient legal help to the accused during the courts-military.
The court-martial and chairman will be dependent upon considerable influence by the
convening officer.
The branch of Judge Advocate General will be put under the leader and functional
control of an equivalent executive.
No appeal is stopped against the finding and sentence of a court-military.
The double hazard constitutional protection accommodated in Article 20 (2) of the

Indian Constitution isn’t accessible to Air Force staff to stop a second trial under civil
court.
Conclusion
The military law system oversees the job of the Indian Army during peace and war
figured inside the kind of statutes, rules, and regulations. It’s a composing code that has
seen periodic changes and reviews, aside from conventions of administration. Individuals
of the soldiers have their own justice framework that is quite different from the common
justice framework. The legal and justice system of the soldiers was intended to be
moderately quick in execution to deal with trains and keep away from the long absence
of military and military duties from officials. The system of appeals has subsequently not
been incorporated inside the military justice framework, since it is inside the civil
system.
As members of soldiers, nearly 1.5 million Indians are dependent upon the military
justice framework. This group applies to a framework planned and carried out after the
Mutiny of 1857 inside the name of discipline to serve the interests of colonial masters on
Indians. In our country, the military justice framework is never criticized. Moreover, a
veil of secrecy is drawn on military issues. There’s a straightforward pattern of progress
inside the world’s military justice system as far as the privileges of the accused and
human rights standards.
References
.https://indiankanoon.org/doc/1154592/#:~:text=
(1)%20Any%20person%20subject%20to,be%20considered%20necessary%20to%20satis
.https://indianarmy.nic.in/writereaddata/documents/ARMYACTS190216.pdf
.https://www.swlaw.edu/sites/default/files/2018-04/SWT104.pdf
.https://casebook.icrc.org/law/implementation-mechanisms
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4/18/22, 8:01 PM Military laws in India : a critical analysis of the enforcement mechanism - iPleaders

Military laws in India : a critical analysis of the

Image Source: https://bit.ly/3Cptzl8

Military laws in India : an overview

Air Force Act

The Border Private Security Power Act,

The Coast Guard Act,

The Border Police Act of Indo-Tibet

The Assam Rifles Act.

Defects in the Indian Military System

Trial during a Summary Court-Martial

Individuals from Court Martial-Members aren’t prepared or legally qualified to regulate

Loopholes surrounding the enforcement

This decentralized design of execution is especially improper for the International

Amendments implemented and scope for

No bail arrangements for the arrested military individual on charges.

Insufficient legal help to the accused during the courts-military.

No appeal is stopped against the finding and sentence of a court-military.

The double hazard constitutional protection accommodated in Article 20 (2) of the

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