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28

International Humanitarian Law in the Indian Civilian

and Military Justice Systems

Sanoj Rajan

28.1 INTRODUCTION

While modern international humanitarian law (IHL) is linked most directly to nineteenth-​and
twentieth-​century Europe, India over the period of its 5,000 years history has developed its own
rules of warfare for the protection of non-​combatants and civilian populations akin to modern
IHL.1 Many scholarly works provide an extensive overview of the norms of conflict in ancient
India.2 In the ancient period, implementation of these Dharma3-​based Hindu and Buddhist
principles were followed by the rulers and decision makers as their paramount duty.4 However,
the status of IHL implementation in modern Indian history is not as great as its ancient past
despite the comparatively high number of conflicts it has had with its neighbours, along with
numerous internal conflict situations which it has been grappling with. Contemporary India
is often criticised for its indifference to the effective implementation of its international law
commitments, especially IHL obligations. Though a party to the universally ratified four Geneva
Conventions of 1949 (Geneva Conventions), India is still not keen on acceding to the Additional
Protocols to the Geneva Conventions.
Even so, India is managing some IHL obligations through special legislation. There are three
specific examples: the Geneva Conventions Act of 1960, the Chemical Weapons Convention
Act of 2000, and the Weapons of Mass Destruction and Their Delivery Systems (Prohibition of
Unlawful Activities) Act of 2005 which it enacted to implement its treaty commitments. Along
with this, there are nearly a dozen general laws with IHL-​related provisions, which aim to meet
the conflict-​related challenges in India. Against this backdrop, the present chapter intends to
explore the implementation of IHL in India through its civilian and military justice system, by
analysing associated legislation and jurisprudence evolved by case law, and thereby bringing out
the gaps.

1
Sanoj Rajan, ‘Principles of Laws of War in Ancient India and the concept of Controlled Conflicts’ (2014) 5 IHLS 333.

2
Ibid. 333. Also see generally Mani Venkateshwara Subramaniam, ‘International Humanitarian Law: an Indo-​Asian
Perspective’ (2001) 83 IRRC 841; Manoj Kumar Sinha, ‘Hinduism and International Humanitarian Law’ (2005) 87
IRRC 285, and also his chapter in this volume on ‘Military Practices in Ancient India’ (Chapter 8).
Dharma is a complex phenomenon which evolved in ancient India. It is difficult to give it a precise definition nor
3

there is any equivalent term in English for Dharma. Dharma is deemed to be the highest ideal of human life and
deals with the virtuous conduct of human being, his duties and his relationship with the god and society. It originates
from the Vedas and Puranas of Hindu Mythology.
See (n 1) 334–​335.
4

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476 Sanoj Rajan

28.2  INTERNATIONAL LAW FRAMEWORK IN INDIA

India is a dualistic country with a clear distinction between international law and municipal law.
It requires a transformation of international treaty law into its municipal realm for its effective
application.5 The Supreme Court has in various cases clarified that to implement international
treaty law in India, it should go through the process of transformation into municipal law.6
Thus, in India, international law does not automatically form a part of the municipal law, it
must be incorporated into its legal system by way of legislation. Nevertheless, later in some
decisions dealing with human rights and environmental law, the Supreme Court has proactively
interpreted international law as being a part of Indian law, even though they were not expressly
found incorporated in municipal laws.7 These decisions were clear on the point that the inter-
national law principles are applicable only if they do not run into conflict with the Acts of the
Indian Parliament.8
Though subscribing to international treaties is a discretion vested within the execu-
tive powers of Central Government, the constitutional framework actively encourages
the Government to foster respect for international law and treaty obligations through the
Directive Principles of State Policy.9 Further, entries 13 and 14 of the first list of the Seventh
Schedule of the Constitution, read along with Article 246, establish that only the Central
Government is vested with the power to enter into international treaties. However, the
Constitution does not attach any obligation on the State in implementing or enforcing inter-
national law in India. It only empowers the Parliament to make any law for the whole or
any part of the territory of India for the purpose of implementing a treaty, agreement or
convention with any other country or countries or any decision made at any international
conference, association or another body.10 Likewise, Article 51(c), which encourages respect
for international law, cannot be enforced before a court of law as it falls under the Directive
Principles of State Policy, embodied in Part IV of the Constitution.11 The primary purpose
of Directive Principles in the Constitution is as guidance to good governance for the pro-
spective lawmakers and executives.12
While Article 51 is not directed to the judiciary, the courts in India have freely interpreted
international principles, to which India is bound, into municipal law in their decisions without
any legislative transformation whatsoever. Chief Justice Sikri, of the Supreme Court, has held
in a case as follows:

5 International law and municipal law are considered as two distinct legal system of rules and principles. See Hilary
Charlesworth and others, The Fluid State: International Law and National Legal Systems (Federation Press 2005) 1.
6 The Constitution of India (1949), art 253; also Jolly George Varghese v Bank of Cochin.
7 Gramophone Company of India v Birendra Pandey, 666.
8 Ibid. 673. Also, Jolly George Varghese v Bank of Cochin. Unlike courts in the United Kingdom, Indian courts have so
far not considered CIL separately in any of their decisions.
9 The Constitution of India (1949), art 51(c) (Directive Principles of State Policy refers to those principles which should
be kept in mind by the Indian Government while formulating policies. They are listed in pt IV from arts 36–​51 of the
Constitution); see also Ram Prakash Anand, ‘Sovereignty of States in International Law’ in Ram Prakash Anand (ed),
Confrontation or Cooperation: International Law and the Developing Countries (Springer 1987).
The Constitution of India (1949), art 253.
10

11 Directive Principles of State Policy are in the form of instructions/​guidelines to the governments at the Center as well
as States. Though these principles are non-​justiciable, they are fundamental in the governance of the country; see
The Constitution of India (1949), art 37.
12 Vasant Moon (ed), Dr.  Babasaheb Ambedkar Writings And Speeches, vol 13 (Dr Ambedkar Foundation 2014) 65
<www.mea.gov.in/​Images/​attach/​amb/​Volume_​13.pdf> accessed 3 March 2018.

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IHL in the Indian Civilian and Military Justice Systems 477

It seems to me that, in view of Article 51 of the directive principles, this Court must interpret the
language of the Constitution, if not intractable, which is after all an intractable law, in the light
of the United Nations Charter and the solemn declaration subscribed to by India.13

The Indian judiciary has gone further in interpreting international law and human rights into
municipal law by way of its much-​acclaimed activism through the medium of public interest liti-
gation.14 Such attempts include reading the principles enshrined in the Universal Declaration of
Human Rights into the right to life under Article 21 of the Constitution.15 In another instance,
Article 11 of the International Covenant on Civil and Political Rights was invoked to rescind
the imprisonment of a woman who was sentenced merely on the ground of inability to fulfil a
contractual obligation.16 In yet another case of environment law, the customary international
law principles of ‘polluter pay principle’, and the ‘precautionary principle’ were deemed to be
incorporated in domestic law and the Supreme Court held that these ‘shall be followed by the
Courts of Law’.17 The highest degree of pro-​activism by the Supreme Court so far in this regard
was when the Court constructed guidelines to make safeguards against sexual harassment at
workplace, incorporating international law principles, in the absence of any relevant municipal
law in that regard. In this case, Court held that ‘International Conventions and norms are sig-
nificant for the purpose of interpretation and guarantee of gender equality, right to work with
human dignity under Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against
sexual harassment implicit therein’.18 The guidelines thus laid down, have led to the adoption
of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act
of 2013.

28.2.1  India’s IHL Treaty Obligations and IHL in the Indian Legal Framework
India is party to twenty-​three international treaties relating to IHL. Two of these, the Convention
on the Rights of the Child 1989 and Convention for the Protection of all Persons from Enforced
Disappearance 2006, are not IHL-​ specific treaties but contain conflict-​ related protection
accorded to protected persons. The list of the IHL conventions India has ratified or acceded is
listed below chronologically based on the date of ratification/​accession (see Table 28.1).19
Due to lack of legislative will for implementing IHL nationally, only three laws have been
adopted, implementing just three of the twenty-​three international conventions cited above: the
Geneva Conventions Act (1960), the Chemical Weapons Convention Act (2000) and the
Weapons of Mass Destruction and their Delivery Systems Act (2005). However, there is other
internal order legislation which directly or indirectly deals with IHL matters.20 Out of the twelve
such pieces of legislation, six along with the respective military rules deal with provisions
pertaining to armed forces members. The following part of the chapter will be analysing these

13 Sarvanana Bharathi v State of Kerala.

14 See Satyaranjan Purushottam Sathe, ‘Judicial Activism: The Indian Experience’ (2001) 6 Wash U J L & Pol’y 29,  63–​84.
15 Additional District Magistrate, Jabalpur v Shivakant Shukla.
Jolly George Varghese v Bank of Cochin, 490.
16

17 Vellore Citizens Welfare Forum v Union of India.

18 Visahka v State of Rajasthan.
ICRC, ‘Treaties, States Parties and Commentaries:  India’ <https://​ihl-​databases.icrc.org/​applic/​ihl/​ihl.nsf/​
19

vwTreatiesByCountrySelected.xsp?xp_​countrySelected=IN> accessed 3 March 2018.

The twelve laws are: the Penal Code (1860), the Evidence Act (1872), the Commission of Inquiry Act (1952), the Civil
20

Defense Act (1968), the Protection of Human Rights Act (1993), the Prevention of Terrorism Act (2002), the Army Act
(1950), Navy Act (1957), the Armed Forces Tribunal Act (2007), the Armed Forces (Special Powers) Act (1958), the
Assam Rifles Act (2006) and the Sashastra Seema Bal Act (2007).

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478 Sanoj Rajan

Table 28.1  IHL conventions ratified or acceded by India

Sl. No Name of the Convention Date of Ratification/​Accession

1. Geneva Protocol on Asphyxiating or Poisonous Gases, and 09.04.1930
of Bacteriological Methods 1925
2. London Treaty on Limitation and Reduction of Naval 27.10.1930
Armaments 1930
3. Procès-​verbal on Submarine Warfare of the Treaty of 06.11.1936
London 1936
4. Charter of the Nuremberg Tribunal 1945 22.12.1945
5. All four Geneva Conventions 1949 09.11.1950
6. Convention on the Prohibition of Biological Weapons 15.07.1974
1972
7. Hague Convention for the Protection of Cultural Property 16.06.1958
1954
8. Hague Protocol for the Protection of Cultural Property 16.06.1958
1954
9. Convention on the Prevention and Punishment of 27.08.1959
Genocide 1948
10. Convention Statutory Limitations to War Crimes 1968 12.01.1971
11. Convention prohibiting environmental modification 15.12.1978
techniques (ENMOD) 1976
12. Convention prohibiting Certain Conventional Weapons 01.03.1984
(CCW) 1980
13. CCW Protocol (I) on Non-​Detectable Fragments 1980 01.03.1984
14. CCW Protocol (II) prohibiting Mines, Booby-​Traps and 01.03.1984
Other Devices 1980
15. CCW Protocol (III) prohibiting Incendiary Weapons 1980 01.03.1984
16. Convention on the Rights of the Child 1989 11.12.1992
17. Convention prohibiting Chemical Weapons 1993 03.09.1996
18. CCW Protocol (IV) on Blinding Laser Weapons 1995 02.09.1999
19. CCW Protocol (II) prohibiting Mines, Booby-​Traps and 02.09.1999
Other Devices, amended1996
20. Convention prohibiting Certain Conventional Weapons 18.05.2005
(CCW), amended Article 1 2001
21. CCW Protocol (V) on Explosive Remnants of War 2003 18.05.2005
22. Optional Protocol on the involvement of children in 30.11.2005
armed conflict 2000
23. Convention for the Protection of all Persons from 06.02.2007
Enforced Disappearance2006

IHL implementing legislation and provisions along with the relevant cases decided by the courts
in India.

28.2.1.1  The Geneva Conventions Act (1960)

The Act was passed in 1960 to give effect to the four Geneva Conventions ratified by India on
9 November 1950.21 It repealed the Geneva Convention Implementation Act of 1936 and takes
away the effect of the Geneva Conventions Act of 1911 as part of the law of India.22 The 1960 Act

21 The Geneva Conventions Act (1960), Preamble.

22 Ibid. s 20. The Implementation Act of (1936) concerned prohibition of the use of or imitation of the Red Cross
emblems.

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IHL in the Indian Civilian and Military Justice Systems 479

is a short legislation with twenty articles, evidently a simple adaptation of the ICRC’s Model
Geneva Conventions Act for Common Law States.23 The core objective of the Act is to prescribe
punishment for grave breaches of the Geneva Conventions, the texts of which are included as
four Schedules of the Act. Anyone who commits or attempts to commit or abets or procures the
commission of grave breaches referred to in Article 50 of GC I, Article 51 of GC II, Article 130
of GC III and Article 147 of GC IV shall be punished with death or imprisonment for life if the
act involves willful killing and with imprisonment for a term which may extend to fourteen years
in any other case.24
The Geneva Conventions Act (1960) does not detail the grave breaches, instead refers to
the Conventions set out in the Schedule of the Act. The core crimes covered include, willful
killing of a protected person; torture or inhuman treatment, including biological experiments;
willfully causing great suffering or serious injury to body or health of a protected person; exten-
sive destruction and appropriation of property, not justified by military necessity and carried
out unlawfully and wantonly (this provision is not included in Article 130 of GC III).25 It also
includes compelling a prisoner of war (POW) to serve in the forces of the hostile power and
willfully depriving the same of the rights of fair and regular trial prescribed under Article 130 of
GC III. Further additional grave breaches under Article 147 of GC IV, compelling a protected
person to serve in the forces of the hostile power; wilfully depriving a protected person of the
rights of fair and regular trial prescribed in the Convention; unlawful deportation or transfer or
unlawful confinement of a protected person; and taking of hostages are covered under the Act.
It is implicit that these crimes must take place in an international armed conflict (IAC) to attract
the jurisdiction of the Act, except the guarentees laid down in the Common Article 3 to all the
Geneva Conventions.
The Act empowers a court not inferior to a Chief Presidency Magistrate or a Court of Sessions
to try the offences (this relates to civilian courts; the military system is discussed later).26 The
principle of universal jurisdiction is incorporated in the Act as it has jurisdiction over any person
committing the offence ‘within or without India’ and ‘when an offence under this Chapter is
committed by any person outside India, he may be dealt with in respect of such offence as if it
had been committed at any place within India at which he may be found’.27 However, the Act
expressly excludes the acts of court-​martial and military court from its purview.28 Section 7 of the
Act reassures that the jurisdiction regarding court-​martial of persons who commit civil offences29
under the Army Act 1950, the Air Force Act 1950 or the Navy Act 1957 shall remain the same as
if this Act had not been passed.30 The Army, Navy and Air Force Acts also stipulates that if any
military personnel who commits a civil offence while in active service shall be prosecuted under
court martial and not under any other law in force in India.31 Further, on any question relating

23 ICRC, ‘Model Geneva Conventions Act (for common law States)’ <www.icrc.org/​eng/​resources/​documents/​misc/​
5jykmc.htm> accessed 20 August 2018.
The Geneva Conventions Act (1960), s 3.
24

GC I, art 50; GC II, art 51; GC III, art 130 (except d); GC IV, art 147.
25

The Geneva Conventions Act (1960), s 5.

26

Ibid. s 3.
27

Ibid. ss 2 (b) and 4.
28

Art 3(ii) and (viii) of the Army Act (1950) defines a civil offence as an ‘offence’ which is triable by a court of ordinary
29

criminal justice.
Section 7 states that ‘Jurisdiction of courts-​martial: The Army Act (1950) (46 of 1950), the Air Force Act (1950) (45 of
30

1950), or the Navy Act (1957) (62 of 1957), relating to trial by court-​martial of persons who commit civil offences shall
have effect for the purposes of the jurisdiction of courts-​martial as if this Chapter had not been passed’.
31 Ibid. ss 69 and 70 of the Army Act (1950), ss 78 and 79 of the Navy Act (1957), ss 71 and 72 of the Air Force Act (1950).

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480 Sanoj Rajan

to whether the Act is to be invoked in a particular case or not, the ultimate authority to decide is
given to the Secretary to the Government of India.32
The other major provisions of the Act include special provisions in case of prosecution
of protected persons including POWs, mandatory legal representation for the accused and
abuse of the Red Cross and other emblems. Along with the prohibition on misuse of protected
emblems under the conventions,33 the heraldic emblem of the Swiss Confederation is also
prohibited to use.34 The violation of the use of such emblems shall be punished with fine which
may extend to five hundred rupees, and be liable to forfeit any goods upon or in connection
with which the emblem, designation, design or wording was used by that person.35 Companies
and their office bearers shall also be liable for misuse of emblem provided in Chapter IV of the
Act except in cases where the company had a trademark registered before coming into force
of the Act.36
Last but not least, along with conferring the power to make rules for the purpose of carrying
into effect the provisions of this Act by the Central Government,37 Section 17 prohibits courts from
taking cognizance of any offence under the Act except on a complaint by the Government or of
an officer designated by the Central Government by notification in the Official Gazette.38 In other
words the courts cannot invoke the jurisdiction under the Act unless the Central Government
makes a complaint by itself or through a designated official.

28.2.1.2  The Chemical Weapons Convention Act (2000)

This Act was passed in 2000 to give effect to India’s commitments under the Convention on the
Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on
their Destruction of 1992. It focuses on the prohibition of the development, production, stockpiling
and use of chemical weapons and their destruction.39 The Act is extended to the citizens of India
outside its territory and the associates, branches or subsidiaries, outside India of companies or bodies
corporate, registered or incorporated in India. However, the Central Government reserves its rights
to declare the cessation of the Act in case it withdraws from the Convention with prospective effect
and also to deny the right of inspection if the interest of national security or economic interests of
India is involved.40
The Act provides for prohibition of the development, production, acquisition and transfer of
chemical weapons and toxic chemicals and prohibition includes any assistance, encouragement
or inducement to it.41 Further, use of riot control agents as a method of warfare and engaging
in any military preparations to use chemical weapons are prohibited.42 It also makes it manda-
tory for registration of persons engaged in production, processing, acquisition, consumption,
transfer, import, export of any toxic chemical or its precursor.43

The Geneva Conventions Act (1960), s 6. Note that it only means that the act can be invoked only by the government.
32

Red Cross, Red Crescent, Red Lion and Sun and the Red Crescent.
33

The Geneva Conventions Act (1960), s 12(d).

34

Ibid. s 13.
35

Ibid. ss 14 and 15.
36

Ibid. s 18.
37

Ibid. s 17.
38

The Chemical Weapons Convention Act (2000), Preamble.

39

Ibid. ss 4 and 5.
40

41 Ibid. ss 13–​17.
Ibid.
42

Ibid. s 18.
43

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IHL in the Indian Civilian and Military Justice Systems 481

The Act established a National Authority for implementing the provisions of the Convention
which shall consist of a chairperson and such number of directors as may be appointed by the
Central Government. The Act also empowers the Central Government to appoint officers and
such other employees to the National Authority as it thinks fit for complying with its obliga-
tion under the Convention.44 The officers under the Act are empowered for inspection, search,
seizure and forfeiture for implementing the purpose of the Act.45 The offence and penalties are
dealt with in Chapter VI.46 Also, like the Geneva Conventions Act (1960) the courts cannot
invoke the jurisdiction under the Act unless the Central Government gives previous sanction by
itself or through an authority notified by it.47 No action can be taken to investigate and prosecute
pursuant to this Act without the authorisation of the named Central government authorities.

28.2.1.3  The Weapons of Mass Destruction and Their Delivery Systems

(Prohibition of Unlawful Activities) Act (2005)
The Act was passed to implement India’s obligation under the Convention on the Prohibition
of the Development, Production, Stockpiling and Use of Chemical Weapons and on their
Destruction and the Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction of 1972.
Further, the Act reassures its commitment not to transfer nuclear weapons or other nuclear
explosive devices.48 That part was modelled in pursuance of UN Security Council Resolution
1540.49
Article 8 of the Act prohibits the unlawful manufacture, acquire, possess, develop, transfer or
transport a nuclear weapon or nuclear explosive device, biological weapon or chemical weapon,
or their weapons of delivery including the missiles. This prohibition is specifically extended to
transfer to non-​State actors or terrorists.50 Further, the Act extends the prohibition on exporting
and brokering of the same type of weapons except in accordance with the provisions of the Act.51
The Act prescribes a minimum punishment of five years and a maximum of imprisonment
for life for the violation of the Act.52 Special provision relating to punishment for the aid and
abetment of any non-​State-​actors or terrorist for violating the prohibitions under the Act is given
under Section 15(2). In case of violation by any company, the persons in charge of the company
along with the company shall be proceeded against and punished accordingly.53
Like the previous two Acts discussed above, the cognizance of the offences provided in the Act
could not be taken by any court without the authorisation of the Central Government or any
officer on behalf of the Central Government.54 Such decision or omission by the Government

Ibid. ss 6–​12.
44

45 Ibid. ss 19 to 38.
Ibid. ss 39 to 49 provide punishments for failure to register, for contravention in relation to development, production,
46

etc., of chemical weapons or riot control agents, for contravention in relation to toxic chemicals, for contravention in
relation to transfer of toxic chemicals, for contravention in relation to export or import of Toxic Chemicals, for contra-
vention in relation to disclosure of confidential information, and for contravention in relation to denial of access.
Ibid. s 48.
47

The Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Act (2005),
48

Preamble and art 8.
Rithesh Kanodia and Aman Bhalla, Transit and Transshipment of Dual-​use Items: India (2012) World ECR 1–​4 <www.
49

worldecr.com/​wp-​content/​uploads/​2012/​07/​India.pdf> accessed 28 September 2018.

The Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Act (2005), s 9.
50

51 Ibid. ss 11, 12.
Ibid. ss 14–​21.
52

Ibid. s 20.
53

Ibid. s 21.
54

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482 Sanoj Rajan

cannot be called in question before any civil court.55 The Act also empowers the Central
Government to appoint Advisory Committee, Licensing and Appellate Authority in this matter
along with the power to make rules under the Act.56

28.2.1.4  Force-​Specific Legislation

None of the armed forces specific legislation like the Army Act, the Navy Act or the Air Force Act
make any explicit reference to the principles of IHL.57 This stands true for border security and
other para​military forces legislations also.58 These acts are mostly limited to rules of conduct for
soldiers and related disciplinary actions in military settings.59 The Acts do mention certain ‘civil
offences’60 which are committed against civilians.61 According to these provisions, if a member
of the armed forces commits an offence against a civilian during his official duty, he will be
subjected to court martial and not any ordinary courts. However, if the offence is committed not
during his active service, such a member shall not be tried by the respective armed forces act,
but by civilian courts.62 Consequently, tribunals set up for the Armed Forces under the Armed
Forces Tribunal Act (2007)63 are limited to decide disputes that arise out of these Acts and not
for violations of IHL provisions. For example, the Armed Forces Tribunal Act (2007) has the
jurisdiction to adjudge disputes in commission, appointment, service and conditions of services
in respect of persons arising from the Army Act (1950), the Navy Act (1957) and the Air Force
Act (1950). Since the norms specifically relating to humanitarian law are absent from these Acts,
such tribunals do not exercise jurisdiction to rule on cases relating to violation of IHL and are
left to be dealt with by Court Martial.
The Court Martial is conducted under the procedures set forth in the Army Rules 1954, Air
Force Rules 1969 and Regulations for the Navy Part II 1957 by the respective Armed Forces.64 As
the Army, Navy and Air Force Act do not specify any specific IHL provisions, the Court Martial
for violations of IHL by the armed forces members is possible only by equating breaches of IHL
with the offences given in these Acts. As an example, some offences under the Army Act that can
be equated with breaches of IHL, are listed in Table 28.2.65

28.3  JURISDICTION OF COURTS

One of the major criticisms of the three IHL implementation acts in India has been that they
do not confer rights to any individual to approach courts for any special remedy. The concerned
courts can take cognisance of an offence under the Acts only on complaint by the Government
or of such officer of the Government as notified by the Central government.66 In other words, an

Ibid. s 22.
55

Ibid. s 26.
56

See (n 31).
57

The Border Security Force Act (1968).

58

The Army Act (1950), ss 34–​70.

59

See (n 30).
60

See (n 31) the Army Act (1950), ss 69 and 70; the Navy Act (1957), ss 78 and 79; the Air Force Act (1950), ss 71 and 72.
61

See (n 31) the Army Act (1950), ss 69 and 70.

62

The Armed Forces Tribunal Act (2007).

63

India Department of Defence, ‘Acts and Rules’ <https://​mod.gov.in/​dod/​acts> accessed 28 September 2018.

64

Umesh Chandra Jha, ‘ICC and the Indian Military Justice System: Complementarity’ in Nainar Vahida and Uma
65

Saumya (eds), Pursuing Elusive Justice:  Mass Crimes in India and Relevance of International Standards, (Oxford
University Press 2013) 321–​322.
The Geneva Conventions Act (1960), s 17; the Chemical Weapons Convention Act (2000), s 48; and the Weapons of
66

Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Act (2005), s 21.

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IHL in the Indian Civilian and Military Justice Systems 483

Table 28.2  Breaches of IHL

Breach of IHL
Appropriation of property
Disobedience
Making perfidious use of
protective emblem
Destruction of historic
monuments works of art,
civilian property
Inhuman treatment, wilfully
causing great suffering
Torture, inhuman treatment
Destruction of place of
worship
Murder, rape on active
service
Offence under the Army Act (1950) Punishment under the Army
Act (1950)
Section 36 (b): Breaking into house 14 years of rigorous
in search of plunder imprisonment (RI)
Section 41: Disobedience of lawful 14 years of RI
command
Section 45: Unbecoming conduct Dishonourable dismissal
(cashiering) for officers
Section 64: Offences against property 7 years of RI
Section 46: Disgraceful conduct of a 7 years of RI
cruel kind
Section 63: Act prejudicial to good 7 years of RI
order and discipline
Section 64 (b): Defiling of place 7 years of RI
of worship, wounding religious
feelings
Section 69, 70: Civil offences Death

individual cannot seek remedy under these legislation; he or she must first approach the govern-
ment to seek enforcement. It is to be admitted that the offences provided are serious, and they
are usually committed during armed conflicts or by agents of the State. This might justify the
common clause that cognisance of any offence under the Act only is taken on a positive action/​
complaint by the Government or of such officer of the Government as notified by the Central
Government.
However, this clause has invalidated the application of the Act effectively before the court of
law. In the most cited and perhaps the only case which invoked the Geneva Conventions Act
(1960) head-​on, the Supreme Court held that:
the Act by itself does not give any special remedy. It does give indirect protection by providing
for penalties for breaches of Convention. The Conventions are not made enforceable by
Government against itself nor does the Act give a cause of action to any party for the enforce-
ment of Conventions. Thus there is only an obligation undertaken by the Government of India
to respect the Conventions regarding the treatment of civilian population, but there is no right
created in favour of protected persons which the Court has been asked to enforce. If there is no
provision of law which the courts can enforce the court may be powerless, and the court may
have to leave the matter to what Westlake aptly described as indignation of mankind.67

Further, Section 7 of the Geneva Conventions Act (1960) excludes its jurisdiction over people
who are governed under the Army Act (1950), the Air Force Act (1950) or the Navy Act (1950).
It states that relating to trial by court-​martial of persons (people coming under the above legis-
lation) who commit civil offences shall have effect for the purposes of the jurisdiction of courts-​
martial as if this chapter had not been passed. Hence, Armed Forces members are completely
excluded from the ambit of the relevant act. Such category of persons shall be governed under

67 Rev Mons Sebastiao Francisco Xavier dos Remedios Monteiro v State of Goa, [15].

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484 Sanoj Rajan

Sections 69 and 70 of the Army Act (1950), Sections 78 and 79 of Navy Act (1950), Sections 71
and 72 of the Air Force Act (1950) respectively. For example, Section 6968 states that subject to
Section 70 any person subject to the Army Act commits any civil offence shall be deemed to
be guilty of an offence against the Army Act (1950) and shall be liable to be tried by a court-​
martial. Section 7069 clarifies that where an offence is committed against a person not subject
to military, naval or air force law (that is, a civilian), that person may not be found guilty of an
offence against this particular Act and shall not be tried by a court-​martial, unless he commits
any of the said offences while on active service or outside India or at a frontier post specified by
Government.70
Hence, should officers of the armed forces, acting in their official capacity, commit any grave
breaches, this is to be dealt with under Section 69 read along with Section 70 of the Army Act,
and not under the Geneva Conventions Act (1960). However, under Section 125 of the Army Act
(1950), the commanding officer of the force concerned has the discretion to decide between the
court-​martial and the ordinary criminal court when there is concurrent jurisdiction if the offence
falls under of Section 70 and the accused was not acting under official capacity.71 Further, in
similar situations, an ordinary criminal court can request by written notice the custody of the
accused if it deems it appropriate under Section 126 of the Army Act (1950). The commanding
officer may either hand the suspect to the nearest magistrate to be proceeded against according
to law or to postpone proceedings pending a reference to the Central Government, in that
case, order upon such reference shall be final.72 The Central Government has, under Section
475(1) of the Criminal Procedure Code, framed special rules in the Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules 1978, broadly the procedure for a magistrate to follow
while dealing with matters coming under the Army, Air Force and Navy Acts.

28.3.1  IHL Implementation through Indian Courts

28.3.1.1  Rev Mons Sebastiao Francisco Xavier dos Remedios Monteiro v State of Goa
This is the first case where the Indian Supreme Court dealt with the provisions of IHL. It is
also, at the time of writing, still the only domestic court decision in India to discuss extensively

The Army Act (1950), s 69 reads thus: ‘Subject to the provisions of section 70, any person subject to this Act who at any
68

place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if
charged therewith under this section, shall be liable to be tried by a court​martial and, on conviction, be punishable
as follows, that is to say,
(a) if the offence is one which would be punishable under any law in force in India with death or with transporta-
tion, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid
law and such less punishment as is in this Act mentioned; and
(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by
the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment
as is in this Act mentioned.’
69 The Army Act (1950), s 70 reads thus: ‘A person subject to this Act who commits an offence of murder against a person
not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person
or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be
tried by a court-​martial, unless he commits any of the said offences –​
( a) while on active service, or
(b) at any place outside India, or
(c) at a frontier post specified by the Central Government by notification in this behalf.’
The term ‘civil offence’ is used to denote all crimes against non-​armed forces persons.
70

71 The Army Act (1950), s 125.

Ibid. s 126.
72

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IHL in the Indian Civilian and Military Justice Systems 485

the concept of Occupation under Article 42 of the Regulations annexed to the Convention
Respecting the Laws and Customs of War on Land (1907) (Hague Regulations 1907).
Goa, which is a part of the Indian subcontinent, was a Portuguese colony for about 450 years.
The Portugees fleet seized Goa by force from Ismail Adil Shah, the-​then ruler, who surrendered
on 10 December 1510. Goa has remained under Portugees rule since then. After its independ-
ence from Britain, India’s Armed Forces occupied Goa following a short military action on
19 December 1961. It then came under Indian Administration on 27 March 1962, and the
Constitution (Twelfth Amendment) Act 1962 was enacted and deemed to have come into force
on 20 December 1961. By this Goa was included in India’s Union Territories, and a reference to
Goa was inserted in Article 240 of the Constitution. Much legislation in force in India was then
extended to Goa, and many Regulations and Orders were promulgated.73
The appellant (Rev Father Monterio) was a resident of Portuguese Goa. After the annexation
by India, he had the choice of becoming an Indian national or retaining Portuguese nationality.
He chose the latter, was registered as a foreigner and received a temporary residence permit.
However, he did not renew his permit and was subsequently ordered to leave India by the Lt
Governor of Goa. The appellant disobeyed the order and was prosecuted and convicted. He
appealed to the Supreme Court.
Rev Father Monterio contended that he was protected from deportation by the Geneva
Conventions Act (1960), claiming the occupation of Goa had not come to an end. Interestingly,
he did not challenge the legality of the military action or the annexation which subsequently
resulted in his attempted deportation, strictly following the IHL perspective of bifurcating jus
in bello and jus ad bellum. The appellant relied on Articles 1, 2, 4, 6, 8, 47 and 49 of GC IV,
which is included as the Fourth Schedule of the Act. The thrust of the argument was that the
deportation order made against the appellant was ultra vires Article 47 of GC IV.74 The appellant
argued that there is no title to the territory acquired by use of force and not that the act of use
of force is legal; specifically, he submitted that as per the-​then position under international law
after the emergence of League of Nations, the General Treaty for the Renunciation of War
and United Nations Charter, acquisition of territory by use of force did not confer any title.
He further contended that the unilateral act of annexation and subsequent incorporation of
Goa with India did not cease the occupation. Hence the occupation of Goa had not ceased,
and the annexation did not deprive him of protection accorded under Article 47 of the Hague
Regulations 1907. The contention on behalf of the State was that the occupation came to an end
by conquest, followed by subjugation on 20 December 1961.
The Supreme Court, while considering the arguments on both sides, began by noting that
the Geneva Conventions Act (1960) did not give a specific right to anyone to approach the court
and the Conventions were not made enforcible by Government against itself nor did it give a
cause of action to any party for the enforcement of Conventions. The Court also mentioned that
there was only an obligation undertaken by the Government of India to respect the Conventions
regarding the treatment of the civilian population, but there was no right created in favour of
protected persons which the Court had been asked to enforce. If there were no provision of law

Ibid. [26].
73

Art 47 reads thus:
74

‘Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatso-
ever, of the benefits of the present Convention by any change introduced, as the result of the occupation of
a territory, into the institutions or government of the said territory, nor by any agreement concluded between
the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the
whole or part of the occupied territory’.

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486 Sanoj Rajan

which courts could enforce, the court would be powerless to entertain such cases. However, the
Court decided to consider the merits of other issues in the case.
The major effort of the Court, in this case, was to define occupation and to see whether occu-
pation was in existence when the deportation order was issued. As the Geneva Conventions did
not have a definition for occupation, the court considered the definition given in Article 42 of
the Hague Regulations 1907.75 The Court further explored the concepts of ‘belligerent’ occupa-
tion vs ‘military’ occupation and ‘true’ annexation vs ‘premature’ annexation.76
The Court was of the view that the laws of ‘belligerent’ occupation applied only when there
was an occupation during the course of actual warfare. In other words, the protection under the
Geneva Conventions was available only when there was a temporary de facto ‘military’ occupa-
tion which did not take away the statehood of the occupied territory. Wherein in case of ‘belli-
gerent’ occupation, which was an occupation after the total defeat of the enemy, the protection
under the Geneva Conventions was not available. In such cases, the function and authority
are exercised by the occupying force. Further, the Court attempted to define annexation as a
situation where there was not only possession of the territory but also uncontested sovereignty
over the territory. The Court distinguished ‘true’ annexation and ‘premature’ annexation. The
former is a condition where the territory is conquered and subjugated, and the latter is a condi-
tion where the hostilities are continuing, and there is an opposing army in the field even if the
occupying power is wholly excluded from the territory. The Court was of the view that when the
conflict was over and there was no hostile army in the field, annexation had the effect of creating
a title to the territory. Nevertheless, the one-​year period mentioned in Article 6 of the Hague
Regulations 1907 was for freeing the territory if the occupied power emerged victorious when
the hostilities ceased or if the occupying power remained victorious, strong measures against
the civilian population were no longer necessary. However, the Court did not elaborate on this
aspect: when did title to the new territory began. Instead, it cited the events after World War II
to hold that title to territory by conquest was still recognised.77
Thus the Court decided that as the military engagement of India was only for a few hours dur-
ation and that was without any resistance, the application of the Geneva Conventions ceased to
apply after 20 December 1961. Further, the Court held that the situation on 20 December 1961
was neither belligerent occupation nor anticipated occupation, but true annexation by conquest
and subjugation. As the appellant had conceded that the annexation was lawful, the protection
under the Geneva Convention ceased to apply after 20 December 1961.

28.3.1.2  Angrej Kaur v Union of India and Jagjit Singh Arora v Union of India
The next remarkable interventions from the courts in matters having a nexus to IHL were in
Angrej Kaur v Union of India and Jagjit Singh Arora v Union of India. Both were cases relating
to armed forces members missing in action. In Angrej Kaur, the wife of a constable of the
Border Security Force who was missing in action during a war between India and Pakistan
approached the Supreme Court for habeas corpus under Article 32 of the Constitution. The
petition was based on the testimonies from repatriated POWs from Pakistan and other news
reports. Recognising that the Supreme Court did not have jurisdiction to issue writs beyond the

Art 42 reads thus: ‘Territory is considered occupied when it is actually placed under the authority of the hostile army.
75

The occupation extends only to the territory where such authority has been established and can be exercised.’
According to the Court, annexation had no effect on the protection accorded under the GCs. See Rev Mons Sebastiao
76

Francisco Xavier dos Remedios Monteiro v State of Goa, [99].

If cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind
77

of title: ibid., [para 101].

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IHL in the Indian Civilian and Military Justice Systems 487

boundary of India, it issued direction asking the Indian authorities to repatriate return of the
petitioner’s husband from Pakistan:
If a Soldier, while fighting for the country’s security, is captured and taken to other country’s prison
contrary to the official belief that he was dead, it would be in the interest of not only petitioner and
her family members but also for the armed forces of this country to see that he is brought back to
our country.78

Thus, the Court directed the Government to continue engaging with Pakistan to effectuate the
release of the Indian POWs still languishing in Pakistani jails. The Court did not expressly mention
IHL while delivering the judgment. However, the principles of repatriation after the termination of
a conflict laid down under GC III were followed.
In Jagjit Singh Arora v Union of India, a case of fifty-​four POWs who were alleged to be
languishing in Pakistani jails for three decades, was taken up. Although the main subject
matter for the case was the payment of salary, pension and other benefits of these soldiers
who fought for India during 1971 war and ended up in Pakistani jails, the second plea sought
judicial direction to the Government to petition the International Court of Justice requesting
Pakistan to honour her commitments under the Agreement Between Government of India
and the Government of the Islamic Republic of Pakistan on Bilateral Relations (1972) (Shimla
Agreement) for the repatriation of POWs between the two countries.79 Under this agreement,
both countries had agreed to act according to the Geneva Conventions on the treatment of
POWs and their repatriation. The petitioner alleged that even though India had acted fully
upon its commitment, Pakistan was in breach of IHL and her treaty obligations under the
Shimla Agreement. The Government opposed the petitioner’s argument that the court should
direct the matter to the International Court of Justice (ICJ) citing the practicability and India’s
consistent policy that all its disputes with Pakistan should be resolved bilaterally without any
third-party intervention.
However, the Gujarat High Court which heard this case directed the government to approach
the ICJ on this matter within two months, and to provide other remedies in favour of the petitioner.
The Court mentioned that along with a special agreement referring a dispute to the court, the ICJ’s
jurisdiction could also be invoked through compromissory clauses in treaties.80 The Court also
rejected the Government’s argument that approaching the ICJ violated India’s consistent policy
of dealing with all India–​Pakistan disputes on a bilateral basis without any intervention from any
third party.

28.3.1.3  State v Mohammed Afsal

The accused in this case was charged with waging war against the Government of India under
Section 121 of the Indian Penal Code (1860) along with other criminal charges for a terrorist
attack on the Parliament of India on 13 December 2001.81 Mohammed Afsal argued that inter-
mittent terrorist attacks could not be interpreted as ‘war’ under Section 121. He argued that
war, unlike intermittent terrorist attacks, required continuing hostilities and should be intended

Angrej Kaur v Union of India,  [4]‌.

78

Shimla Agreement, cl VI.
79

See Jonathan Charney, ‘Compromissory Clauses and the Jurisdiction of International Court of Justice’ (1987) 81
80

AJIL 855.
81 Section 121 reads thus: ‘Waging, or attempting to wage war, or abetting waging war, against the Government of India;
Whoever, wages war against the Government of India or attempts to wage such war, or abets the waging of such war.
Shall be punished with death, or imprisonment for life and shall also be liable to fine.’

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488 Sanoj Rajan

to overthrow the government by conquest or rebellion and attacking combatants as opposed

to civilians. Further, wars were in a normal sense fought between States according to inter-
national law and the accused cannot be prosecuted for waging war against the State in any of
the cases mentioned above.82 The State, in its arguments, cited Oppenheim and Dinstein and
distinguished inter-​State war and intra-​State war. It further argued that the legislative intent
of Section 121 was not meant to restrict the meaning of ‘war’ to cases where rival States were
engaged in an armed conflict of a certain magnitude.83
The Supreme Court held that ‘war’ had different connotations under international law and
municipal law. Insurgency, as a legal concept, fell within the auspices of waging war as under-
stood by the municipal law in India.84 The Court distinguished between inter-​State war and
intra-​State war, and held that the rules applying to both were essentially different. In doing so,
the court considered the distinction between IAC and non-​international armed conflict (NIAC)
under IHL. The Court also rejected the defendant’s argument that the objectives of war could
only be to overthrow the government. The Court clarified that wars could conceivably have
more limited or modest objectives, like the coercion of a rival government.85 It concluded that
depending on the scale of aggression, wars could happen even where the belligerents were not
States.86 Cases of individuals using arms against the State could amount to waging war against
the State under Section 121 of the IPC.87 Subsequently, Supreme Court in appeal approved the
decision regarding the interpretation of Section 121.88 This case illustrates how two Indian courts,
even though not elaborating in terms of IHL, have touched upon on the definition of armed
conflicts.

28.3.1.4  Sarbananda Sonowal v Union of India

In this public interest petition filed in favour of illegal migrants from Bangladesh, the constitu-
tional validity of the Illegal Migrants (Determination by Tribunals) Act 1983 was challenged.89
The primary purpose of the impugned legislation was to deport the illegal migrants in Assam
back to Bangladesh. The petitioner challenged the Act before the Supreme Court as violative
of Article 355 of the Constitution.90 The petitioner contended that the large influx of illegal
migrants amounted to external ‘aggression’ as mentioned in Article 355.
As the point to be decided was whether the influx of illegal migrants could be interpreted
as ‘aggression’, the court cited three definitions of war under IHL.91 The court reiterated that
war could not only happen between States, but also between States and general populations.92
The court finally concluded that there was a difference between ‘aggression’ and ‘war’, and

State v Mohammed Afsal, [181–​183].

82

Ibid. [183].
83

Ibid. [185–​190].
84

Ibid. [186–​187].
85

Ibid. [189]. ‘In our opinion, wars may occur where belligerents are not States. Individuals having different allegiance,
86

especially political, may engage themselves against the State by use of arms. The scale of the aggression would be
determinative of the fact whether the act(s) constitute war. Further, the definition of war in the municipal statute
would guide.’
Ibid.
87

State v Najot Sandhu.

88

Sarbananda Sonowal v Union of India.

89

Art 355 deals with the duty of the Union to protect States against external aggression and internal disturbances.
90

91 That is, internal (non-​ international) armed conflicts, external (international) armed conflicts and internal
disturbances: Sarbananda Sonowal v Union of India, [32].
92 Ibid.

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IHL in the Indian Civilian and Military Justice Systems 489

the two could not be equated. The framers of the Constitution had consciously used the word
‘aggression’ instead of ‘war’ to avoid any such confusion. The influx of illegal migrants fell within
the purview of the notion of aggression under Article 355.93 Thus the alleged Act was struck
down as unconstitutional.94

28.3.1.5  People’s Union for Human Rights v State of Assam and

Nandini Sundar v State of Chattisgarh
Both these case are often cited as ideal situations for the application of Protocol II Additional to
the Geneva Conventions (AP II) by the courts, had it been part of the law of India.95
In the first case, the petitioner challenged a Presidential Proclamation of Emergency under
Article 356 of the Consitution.96 The state of Assam was declared a ‘disturbed area’ under the
Armed Forces (Special Powers) Act (1958) and the Assam Disturbed Areas Act (1955).97 One of
the petitioners had sought the enforcement of AP II, as the army action forced civilians to flee
their villages and there were cases of army personnel kidnapping civilians and raping women.
The petitioner contended that army was a ‘combatant force’ and the people of Assam were a
‘non-​combatant civilian population’.98 However, the Gauhati High Court did not invoke AP
II’s99 provisions CA 3 or even though it generally agreed with the petitioners and issued some
directions to the government to protect the civilian population.
In Nandini Sundar v State of Chattisgarh, a petition was filed before the Supreme Court
about Salwa Judum, an armed civilian vigilante group established by the Government to combat
Maoist militant groups in the state of Chhattisgarh. Untrained tribal youths, appointed as special
police officers in Salwa Judum, participating in the anti-​insurgency operations were allegedly
involved in human rights violations and atrocities.100 Though the Court found that using Salwa
Judum in anti-​Maoist operations violated the fundamental rights enshrined in the Constitution,
including the right to equality before the law, it abstained from citing IHL principles in the
judgment. Mindful of the fact that India was not a signatory to AP II, the Court had reasonable
justification for not applying its provisions. However, it is surprising that the Court did not con-
sider CA 3 which squarely applied.

28.3.1.6  Kater Abbas Habib v Union of India

Another case where IHL discussed was Kater Abbas Habib v Union of India. Here, the Supreme
Court reiterated that there was no specific provision in the Constitution obliging the State to
implement international law including IHL in India. The Court was seized of a matter relating
to Iraqi refugees who were fleeing their country to escape serving in the army. The Court unfor-
tunately cited Rev Monterio erroneously regarding the lack of special remedy under the Geneva
Conventions Act, wrongly assuming that refugee issues fell under the ambit of IHL. As India
was not a signatory to the Refugee Convention of 1951, it is possible that the Court was trying to

93 Ibid. [38].
94 Ibid. [42].
95 Siddharth Varadarajan, ‘Salwa Judum and International Humanitarian Law’ (The Hindu, 8 September 2007) <http://​
svaradarajan.blogspot.com/​2007/​09/​salwa-​judum-​international-​humanitarian.html> accessed 11 January 2019.
96 People’s Union for Human Rights v State of Assam.
97 Ibid.  [1]‌.
98 Ibid. [20].
99 India is not a signatory to the Protocol.
Nandini Sundar v State of Chattisgarh, [42].
100

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490 Sanoj Rajan

explain non-​refoulment through principles of IHL under Geneva Conventions to which India
is a signatory.

28.4 CONCLUSION

Despite its glorious ancient Dharma-​ based rules of war, modern India’s track record of
implementing IHL, in comparison with human rights, is very weak. The fact that only three
municipal laws had been passed from among the twenty-​three treaties requiring domestic
implementation shows a lack of commitment in this regard. This could be partly because the
Constitution does not attach any obligation to the State in implementing or enforcing inter-
national law in India.
Two other major problems in IHL implementation in India are the lacunae in the IHL
implementing legislation. First, none of the three implementation Acts confers rights on any
individual to approach the courts for a special remedy. The courts can take cognisance of any
offence under these Acts only with the permission of the Government or of such officer of
the Government as notified by the Central government. Secondly, the Geneva Conventions
Act (1960) does not apply to service personnel who are governed by the Army Act (1950), the
Air Force Act (1950) or the Navy Act (1950). Further none of the Armed Forces Acts explicitly
provides for IHL provisions in it to prosecute its members for IHL violations. These are essen-
tially the people who are most prone to violate IHL in armed conflict. Hence, IHL implemen-
tation legislation in India remains toothless tigers.
Nevertheless, the courts have been interpreting international law principles in their judgments,
even in the absence of any transformation of international law into municipal laws. However,
in the cases where IHL provisions were invoked, it was rather used to substantiate and support
human rights remedies rather than coming up with judgments based on IHL. Further, it is also
noticeable that courts have often mistaken IHL with human rights issues such as refugee law.
On other occasions, they failed to recognise the need for application of IHL as would have been
appropriate. This shows lack of expertise and understanding of IHL in the Indian legal system.
For these reasons, India should take active steps to implement IHL in its domestic legal system
including by constituting an IHL Committee at the national level and encourage IHL to be part
of trainings at various judicial academies. Further, on the military side the government shall ini-
tiate consolidation of an effective manual of military law, which includes explicit IHL provisions
for training and advice of members of the armed forces and civilians, who are involved in a
decision-​making process on issues relating to armed conflict.

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