i trials as described the 1 ot be call ; : ie martial cannot be called relating £0 milan Pomc crals by COWS Me clared the military fanciful and said 10°" ip) owevers it has not ye ust. nable, fair ot J at reasor he provisi justice system so as against © Jitary Legal System itary governance ani are Fundamental Ril ‘0 military justices ntal Rights and the Mi Fundame d its justice delivery isions in the mil ovisions in the ghts are as follows, he pr , Some ofthe provisions 19 8 Mr system which cou Bail , / ‘There is no provision of bail for a military Penon arcested jn coasts tt oe eeimander the Army Act. [tis entirely a matter 0° €% € Pern ae ry authority to release the i jor milita * che commanding officer, or the superior m : Seon from arrest/custody. While the Supreme Court has laid down categorically the principles on which bail ought to be granted, these provisions have not been made applicable to military personnel held in hrilitary custody. An untrammeled discretion in connection with release from arrest/custody is not only arbitrary and liable to be misused, but also wn kes the constitutional guarantee under art 21 meaningless. Trial in Summary and Summary General Courts-Martial SCM) does not come up to the ‘The trial by summary court-martial ( no prosecutor and the court recognised standards of justice because there is itself performs some of the functions of the prosecutor. The accused is not entitled to defend himself with the help of a counsel or defending officer. ‘The summary general court-martial (SGCM) is empowered to award death sentence in a summary trial where an accused may be denied the right to engage counsel. This is in direct conflict with the constitutional safeguards provided in art 22 of the Constitution. It also violates art 21, as the procedure prescribed for court-martial cannot pass the test of just and fair reasonableness, as laid down in a plethora of cases, including in Maneka Gandhi v Union of India, ® 40 Ranjit Thakur v Union of India 1987 4 SCC 611; Sivaraman Nair v Union of India, Soprene Court Civil Appeal no 1093 of 1989; Duraibabu Rv Union of India Madras High or wena Ba of 1990, WA No 794 of 1992; Surinder Singh v Union of India MP t, Misc Petitic 3 il fi ta High Cour, Mise eon no 2323 of 1991; and Ex-Naik Sardar Singh v Union of India Constitution of India 1950, art 21: Protection of li : 1950, art 21: life and al liberty—! shall be deprived of his life or liberty except according to eis establish ibylae. 42. Maneka Gandhi v Union of India (1978) 1 SCC 248, eS 36 4Constitution of India and the Armed Forces Legal Aid 10 Accused The insufficiency of legal aid to the accused 1 daria eae tus defect chat violaces the human rights of the accused, Theater s of the accused. The absence of 1c vices of an experienced legal officer as counsel for the accused is of ci ol tree significance in this context. Army Rules 97(1) permits am accused erage a civilian lawyer at his own expense oto be defended by a militar oficer known as the defending officer. In reality, very few of ie aay Fie gage a civilian lawyer at their own expense and service officers norrully an led for the duty are inexperienced and unwilling to under take the dertisitment. Consequently, cases before the coure-martial are = Sfequacly defended, which isin violation of the provisions of art 22 of the Constitution. Members of Court-Martial The court-martial is subject to considerable influence by the convening officer. A court-martial constituted under military law determines both findings and sentence. The members comprising the court-martial as ‘judges or jury’ need not be legally qualified or trained in the administration of justice. In fact, experience shows chat generally the most unwanted officers tha military station are detailed for court-martial duties. They are exposed to varying degrees of ‘command influence’ and cannot be completely independent in exercising their judgment in a trial. Functioning of Judge Advocate General (JAG) Department [A judge advocate performs neither the functions of an advocate nor of a judge. Rule 61(1) of the Army Rules 1954 states ‘The court (court-martial) Shall deliberate on its findings in closed court in the presence of the Judge Advocate.’ A judge advocate is thus not a judge as one in a trial by jury except in the sense that he has to maintain an entirely impartial position. Nor can his address be styled as or considered to be in the nature of « direction. The department of JAG is placed under the administrative and functional control of the same executive who orders a trial by court-martial and reviews the proceedings. The officers of the JAG deparcment *; therefore, not independent and cannot be relied upon to give # fair and just opinion. inst arrest and detention in “tin custody without being ‘hall he be denied the right 4 Constitution of India 1950, art 22 provides: Protection agai certain cases—(1) No person who is arrested shall be detaine! informed, as seen as may be, of the grounds for such arrest no! 1 to consult, and to be defended by, a legal practitioner of his choice 37wwe “The Military Jutice System in Indi - Denial of Right to Appeal ‘Articles 136(2) and 227(4) of iT Ss Ci the Supreme Court / high court he Constitution make the provision that annot give special leave 10 appeal frors ; sjesrmination oF sentence of a military court oF tribunal any ia en ee tare 136(1)] does not confer a right of appeal upon g ci onsite ets diseretion in the Supreme Court to interfere in eae Article 136(2) states that the provisions of sub-are(1) ment, determination, sentence or order passe nal consticuted by or under any law relating high courts under art 227(4) do not have party bui exceptional cases. Artic shall not apply to any judgn or made by any court or trib to the armed forces. Similarly, aaa che power of superintendence over any court or eibunal constituted by op under any law relating to the armed forces. Till 2007, there was no provision of appeal against the finding and sentence of a court-martial. The absence of even one appeal with power to review punishment was a glaring lacuna in military law and a gross violation of the human rights of the affected person. Double Jeopardy The constitutional protection against double jeopardy, enshrined in art 20(2), whilst available before a court-martial, is not available to prevent a second trial on the same offence before a civil court.” The provisions of double jeopardy, though not found under the Navy Act 1957 and deleted under the Army Act in 1992, still exist in s 126 of the Air Force Act 1950," This is in violation of art 20(2) of the Constitution. 44 Constitution of India 1950, art 136. Special leave to appeal by the Supreme Court—(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tibunal constituted by or under any law relating to the Armed Forces. Constitution of India 1950, art 227. Power of superintendence over all courts by the High Court—(4) Nothing in this Arcicle shall be deemed to confer on « High Coure Rover of superinendens ove any court or tribunal constituted by or under any law 45 Constitution of India 1950, art 20(2) provides: No person shall be prosecuted and Punished for the same offence more than once. 46 The Air Force Act 1950, s 126 provides: Successive trials by a criminal court and a court- martial—A person convicted or acquitted by a court-m: ich the’ : Ourt-martial may, with the’ previous sanction of the Central Government, be tied again by a criminal court for the cane offence, or on the same facts. " 38Constitution of India and the Armed, rces ‘A member of the armed forces does 1 Ot cease to be a citi : the forces. He has the same Fundamental « & citizen by joining I Rights and is subject to the same ie d : additional obligations, cisabi and privileges By vue of being a member ef the ae he es cia activism in the sphere of human rights has generally weed eat conditions of service of aggrieved military personnel a¢ well ofthe nea delivered by the court-martial. Due to these defects gee a ite regarded in legal and lay circles as the arche : rd arhieey type of summary and arbi : : ary and arbitrar ings. There are glaring deficiencies i a proceedings glaring deficiencies in the safeguards accorded to the accused and in the attitude of those administering the military justi delivery system. It is generally believed that in the supposed inverest of furthering the military discipline of the command, the convening officer does not hesitate, at times, to make known to the members of the court in advance of trial, his personal views on the guile ofthe accused or the sentence that should be awarded.” He sees no incompatibility between his conduct and the judicial doctrine of impartiality in the administration of criminal justice. Apart from extra-judicial influence in the*case, an accused does not even know what principles of law the court members actually considered in determining his guile or innocence. In the armed forces, the justice delivery system is considered a part of the executive department and is, in fact, merely an instrument of executive power for enforcing discipline. Historically, the Fundamental Rights of armed forces personnel have been much narrower in scope than those of civilians. The courts have also treated the military differently from the rest of society for the application of constitutional rights. In India, the large number of cases which have come up before the superior civil courts show that the governance and the justice delivery system of the defence forces has been moving at a very slow pace, and has not been able to satisfy the aspirations of men in uniform. There has been an unusual increase in the filing of writ petitions by serving as well as retired defence personnel. This trend shows a gradual erosion of faith in the system of governance as a result of the violation of human rights in the armed forces. The recent judgments of some high courts and the Supreme Court have found the existing system of governance and nilitary. justice ‘antiquated’ and out of step with the liberal spitie of the Constitution. There is thus a need to strike a fair balance beeween the eee eee 47 The position of a soldier acting Lescribed eseribed i illegal and in violation of human rights has been graphically deere inchs WOES soldier is liable to be shot by a court-martial for disobeying a military owler ans hanged by a judge and jury for obeying i : Re 48. Brig Nilendra Kumar, Court-Martial and Military Matters, Manas wins eee 2000, p 116. The total number of legal cases being contested by the Defens the armed forces headquarters runs into more than 100,000. 39 superior ofticer though in these words: A obedience to the orders ofThe Military Justice System in India: An Analysis : irements ili vations of a democratic society and the requirements of military aspirations ol discipline. Tithe recent past, the Supreme Court of India has adopted an unorthodg n the recent past, d ive approach, except in cases involving the ae justice ind_progressiv exe mil syotem, The prevailing judicial approach of the apex court shows an ye venigble shift towards granting precedence to international human tights os ic legal order.” The progressive interpretation of the treaties over domestic legal order. i nants vis-d-vis the domestic law has been adopted in Re Maneka Gandhj snd Keanunanda Bharati. In some cases relating to military personnel, an ape . . the court has criticised che military governance and justice system but refused to grant any relief. The Supreme Court commented in Re Le Col PPS Bedi: Reluctance of the apex court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. Itis one of the cardinal features of our constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive of his rights under the Constitution ... In the larger interest of national security and military discipline, Parliament in its wisdom may restrict or abrogate such rights in their application to the armed forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirits of the constitution. Persons subject to the Army Act are citizens of this ancient land having a feeling of belonging to the civilized community governed by the liberty-oriented constitution. Personal liberty makes for the worth of human beings and is a cherished and prized right. Deprivation therefore must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the criminal court and the court-martial is apt to generate dissatisfaction arising out of this differential treatment.5! 19771 8CC301 and NHRC State of Arunachal Pradesh AIR1996 50 Maneka Gandhi v Unie “Indic eee Gee sti of ‘dia AIR 1978 SC 597 and Keravananda Bharati v State of 51. Lt Col PPS Bedi v Union of India (1982) 3 sce 140, 40