C H A P T E R

Armed Forces Tribunal

Armed Forces Tribunal Act 2007 commenced the

TLe enactment
of the
The act created the Armed Forces
modern era of military justice in India. of
as a check on the operation
semi-civilian appellate court,
Tribunal, a
that the
c r e a t i o n of the tribunal also
means
The
military justice. will longer be
appeals from the court-martial no
constitutional ban on
court-martial decision can
An individual not satistied with a
applicable." the leave of
and further, the Supreme Court, with
approach the tribunal has original jurisdiction in disputes relating
the tribunal. The tribunal also
to service matters. It
has been set up under art 246 of the Constitution,
2 of List-1 (Union List) of the Seventh
Schedule of the
read with Entry
Constitution.

BACKGROUND
The military legal system in most countries was created to give authority
to the commander-in-chief as an essential means of winning wars and
punishing those who disobeyed him. It was considered essential for
maintaining a disciplined army. Not until 1951 did a soldier convicted by
court-martial have the right to appeal to any civilian court of appeal. The
Ony way in which a civilian court could consider the findings of a court-
W a s by way of the prerogative writs of certiorari, prohibition and
mandamus.
4July 2008, the Union Cabinet gave its approval for the establishment of the Armed
ces iribunal by creating 31 posts, which includes one post of Chairperson and 29 pOsts
Vembers for the Principal Bench at New Delhi and eight regional benches and one
o Principal Registrar at the Principal Bench and exempted from consultation with
n Public Service Commission in all matters concerning Group A' and B posts
in the Tribunal.
2
Lonstitution of India, http://pib.nic.in/release.asp?relid=40590
arts136(2) and 227(4).
 The Military Justice System in Indi: An Analysis

In the UK, the Darling Committee opposed the right to ann.

hierarchy. In 1938, the Oliver Committee exnt pea
the milit
view that no such experiment was necessary, desirable or ptactkpre
that the system in existence had fully justified itself After
World War, countries such as the USA, Canada and the Ik.
independent committees to modernise their military justice svs
The Lewis Committee (1946) in the UK favoured the inttod
system of oral appeal, but recommended that the appeal cour
constituted by the Judge Advocate General and his judicial of
rationale of the Lewis Committee's recommendations was that in
of legal safeguards, citizens should be no worse off when the
armed forces than in civil life unless considerations of discipli
circumstances make such a disadvantage inevitable. The C
recommendations were endorsed by an interdepartmental co
subsequently, those relating to the status and functions of the Ju
General were not adopted, nor was the proposal that the ap
should be constituted from within the Office of the Judge Advo
In 1951, the Court-Martial (Appeals) Act created the C
Appeal Court (CMAC), comprising the Lord Chief Justice:
the High Court. This is truly a civilian court, and it now
pr-
to appeal on the following grounds: (a) where the convicti
sentence of death or (b) if the Court of Appeal thinks that
the court-martial is unreasonable, or cannot be supported o1
or involves a
wrong decision on a question of law or that th
miscarriage of justice on any ground. The decision of the
subject to an appeal to the House of Lords at the instance o
the prosecutor, with leave from the CMAC or the House
In the USA, the Continental Congress first authorised tt
martial in 1775. From the time of the Revolutionary War
of the 20th century, courts-martial were governed by the=
and the Articles for the Government of the
Navy.
3 Report of the Committee constituted by the Army Council to inq
rules of procedure
regulating military
courts-martial under the Chair
Darling, commonly known as the Darling Committee Report, 191
4 Report of the Army and Air Force Courts-Martial Committee, 193
set up to examine the existing system of trials by court-martial unde-
Air Force Acts in particular to consider whether it is desirable
person convicted by court-martial should have the right to appe=
against his conviction. The Chairman of the committee was Mr
5 Report of the Army and Air Force Courts-Martial
Committe,
made several recommendations for
procedural reforms. The repor
with the problem of delay before trials, insufficiency of legal aid be
the insufficient right to appeal.
258
 Armed Forces Tribunal

court-martial convictions were reviewed cither by a

20,
the President, depending on the severity of
Until

der in the field

field or by
commander
of the accused. The absence of formal review received
rank of t
or the
or
the rank
the First World War, and the Army created an
ntence

che
the
ntion during
c r i t i c a l a t t e n t i o n

for limited number of Following the

a cases.
review process
crt legal
internal leg 1920, Congress required the army to establish
interhe Act of 4 June
three lawyers, to review certain cases." The
Review, consisting of
of review of other cases by the office of the
further required legal
Boards

received significant
General. The military justice system
l e g i s l a t i o n

Advocate Second World War. During

Judge and immediately after the
en tionduring American armed
over 16
million persons served in the
in ich
whic courts-martial.
he w a r ,
the held o v e r 1.7 million
services
forces, the military conducted without the presence of any
were
Many of these
proceedings
by the military
conducted departments and the civilian
counsel. Studies administration of military justice
of problems in the
har identified a variety command influence.
including the potential for improper
during the war, Articles of War,
Congress enacted significant reforms in the
In 1948, officers to
creation of a Judicial Council of three general
including the of death, life imprisonment o r
the
sentences
consider cases involving to it
council could also consider c a s e s referred
dismissal of a n officer. The the samne
Board of Review o r the Judge Advocate General. During
by a
air force
placed the departments of the army, navy and
period, Congress headed by
under the newly created Department of Defense. A committee
Professor Morgan was created to study the potential
revising
for unifying and
a single
three services under
the disparate military justice systems of the
code. The Morgan Committee recommended a unified system applicable
to the Army, Navy, Air Force, Marine Corps and Coast Guard. The Morgan
Committee also recommended that qualified attorneys serve as presiding
offticers and counsel, subject to limited exceptions. Numerous other changes
Were proposed by the Committee to enhance the rights of service members
in context of the disciplinary needs of the
the armed forces.
The recommendations of the committee included the creation of an
independent civilian appellate court. These recommendations, revised by
Congress, became the Uniform Code of Military Justice (UCM), enacted
on 5 May 1950. Article 67 of the UCMJ established the Court of Military
Appeals as a three-judge civilian court. The Report of the House Armed
oervices Committee, accompanying the legislation, emphasised that the

h e Board of Reviewconsidered cases involving death, dismissal ofan officer, unsuspended

shonourable discharge or confinement in a penitentiary, with limited exceptions.
committee under the chairmanshup
StSecretary ofDefense, James Forrestal, created
of
a

Harvard law professor Edmund Morgan.

259
 The Military Justice System in India: An Analysis

new Court would be 'completely removed from all military infu

nce fof
persuasion. The legislation became effective on 31 May 1951. In 196
Congress redesignated the court as the United States Courrafi

Appeals. Military
As initially established, the the final
court was
auchority on cases
under the military justice system, except for a limited 'number ofa rising
Court under
collateral cases
Cases
considered bythé Supreme proceedings, su
through writs of habeas corpus. In 1985, Congress authorised direcra
from the court to Supreme Court.
the appeals
In 1989, Congress enacted comprehensive legislation to enhance.
effectiveness and stability of the USCMA. The legislation increased
the
USCMA' membership to five judges, consistent with the American R
Association's Standards for In 1994, Congress
Court Organization. gave
the 'USCMA' its current designation, the United States Court of ApDesl
for the Armed Forces (USCAAF). Article 142 of the UCMJ provides thar
cach judge of the US CAAF 'shall be appointed from civilian life, To
underscore the civilian nature of the US CAAK, the statute provides that a
person who has retired from the armed forces after 20 or more years of
active service 'shall not be considered to be in civilian life
The USCAAF exercises worldwide appellate jurisdiction over members
of the armed forces on active dury and other persons subject to the UCM.
It is composed of five civilian judges appointed for 15-year terms by the
President with the advice and consent of the Senate. Cases on the its docket
address a broad range of legal issues, including constitutional law, criminal
law, evidence, criminal procedure, ethics, administrative law and national
security law. Decisions by the US CAAF are subject to direct review by the
Supreme Court.
The Canadian system of courts-martial was based on British practice
dating back to about the 16th century. British laws concerning milhtary
discipline applied in Canada during the colonial period and were
Subsequently adopted by independent Canada. They continued to
applied until after the Second World War. In 1950, amendments
National Defence Act created the Court Martial Appeal Board. I is board
was to be chaired
by a judge of the Exchequer Court (the predece of some
the Federal Court of
Appeal and of the Federal Court) or a juage
other superior court, and to have other members win five
two or more
be either active orretired superior court of at ica
judges or barristers service
service
years standing. The Board could hear
appeals from courts martial bysThere
personnel, against convictions or against the legality of sentences. on
was a further possibility of appeal the Court of
matters of law, with leave, where the
to Supreme an
a n i m o u s

members of the Board were u

260
 Armed Fomes Tribunal

af right where one member dissented. The Minister of National

o r as o f
Defence (representing the Crown before courts-martial) had no
(CMAB)

right ot appeal.

next step in
the appeal process came in 1959, when
ivilianising
The
the Court Martial Appeal Board (CMAC) with the
replaced
rliament
Parli
Martial Appeal Court (CMAC). The 'CMAC' was made a superior
Court
af record and its head was designated as President. It was to be
court o f
posed solcly of superior court judges, to be designated by the Governor
com

in
Council from
from
Council Exchequer Court or from superior courts of the
the
Its
rovinces. Itsjurisdiction remained essentially the same as that of the
PAA By statute, the title of the head of the 'CMAC was changed in
of the Court Martial Appeal Court.
1984 to that of Chiet Justice
to the
The next major development came in 1991, with amendments
Act that altered the of the 'CMAC' and
jurisdiction
National Defence
made it more closely analogous to other civilian courts of criminal appellate
iurisdiction. Until that time the power of the court to vary sentences was
limited to reterring the matter to the Minister of National Defence for
review. Moreover, the Crown had no right of appeal in respect of either
conviction or sentence. In 1991, the CMAC was given full powers to
review the severity of sentences and to substitute new sentences. Further,
the Crown, as represented by the Minister of National Defence, was given
the right to appeal both sentence and conviction. In the case of either the
Crown or the individual, an appeal against sentence could be brought only
with leave of the 'CMAC''
Appeals to the Supreme Court of Canada remain available on the same
basis as before. A person subject to the Code of Service Discipline may
appeal to the Supreme Court against the decision of the CMAC (i) on any
question of law on which a judge of the CMAC dissents or (ii) on any
question of law, if leave to appeal is granted by the Supreme Court. The
inister of National Defence may appeal to the Supreme Court against
the decision of the CMAC (i) on any question of law on which a judge of
ne CMAC dissents or (i) on any question of law if leave to appeal is

granted by the Supreme Court.

10

ertain modern developments have had an impact on the functioning

M A C . For example, the adoption of the Canadian Charter ot Rights
reedoms in 1982 has resulted in many more constitutional issues
g aised before the CMAC. The charter has also led to a greater degree
of
independence from the command structure in the working
89 National Defence Act 1922, s 230.
Ibid, s 245(1).
10
Ibid, s 245(1).

261
 ystem in India: An
Analysis
The Committee desired
7.
that specific
of provisions be made for the compensati
miscarriage justice as per the international
of
norms [Article 14
The (4) of ICCPR
recommendationsmade
by the Government and a fewby
the Standing
Committee were
changes were made in the Bill,28 consider. ered
ARMED FORCES TRIBUNAL ACT
2007
The Armed Forces Tribunal
Bill was passed
5
December 2007. It received the by the Parliament2".on
President's nod on 25
paving the way for the setting up the December 2007
of country's tirst ever
redressal forum
to
adjudicate exclusively on cases
pertaining to armed forces personnel
The Armed Forces Tribunal
will consist of a
principal bench in
three courts and
eight regional benches. The regional benches at Delhi with
and Lucknow will have three
courts each and the ones in Chandigarh
Chennai, Jaipur, Kochi and Guwahati will have one Mumbai, Kolkata.
court each.
The Principal Bench's
jurisdiction will be the same as that of the Delhi
High Court. The Chandigarh Bench will have jurisdiction over
Haryana, Himachal Pradesh and Jammu and Kashmir, while Punjab,
Bench will have the Lucknow
Pradesh and
jurisdiction over Uttar Pradesh,
Uttaranchal, Madhya
Chhattisgarh. The Mumbai Bench will have jurisdiction
Maharashtra, Goa and Gujarat, while the Kolkata over

Bengal, Orissa, Jharkhand, Bihar and the AndamanBench will cover West
and Nicobar Islands.

28 The Committee made 14 recommendations, of which the Ministry of Defence

five without
changes and two with accepted
Hindustan Times, New Delhi, 9 November modifications. 'Nod for Defence Tribunal',
some

2007.
29 The Bill was
passed by the Rajya Sabha, after a brief discussion, on 3 December 2007.
During the discussion, the Defence Minister AK
while participating in the Antony stated: 'Many Hon Members.
debate, gave very valuable
There were many valuable suggestions. I am not rejecting them.
would be
suggestions. But
today, if we try restart the whole thing,
to
delayed. So, I assure you that we shall keep in mind some of the valuabte
suggestions given by the Hon Members and bring suitable
time. Let us first amendments
at the
appropriare
pass this Bill and try to
motion moved by AK operationalise this Bill as early possible tnc
as
Antony that the Bill, as amended, be passed was adopted and the
Bill, as amended, was
passed.
31207.pdf http://164.100.24.167/Bullitensessions/sessionno/21
The Bill received the nod
of the Lok Sabha on 5 December 2007 amid vociferous protesi
by members against the demolition of the Babri Masjid 15 years ágo on that day. 1he
could not be discussed but, amid the din, it was
Arwal and
to put vote by Depury Speaker naa
Singh passed.
Armed Forces_Tribunal_Billhttp://timesofindia.indiatimes.com/Top_ Headline
gets_Parliament_nod/articleshow/2600896,cms
268
 Armed Fores Tribunal

The laipur Bench's jurisdiction will be limited to Rajasthan, while the

Chennai Bench will cover Tamil Nadu and Andhra Pradesh. Kochi wil
r Kerala and Karnataka, while Guwahati will all the
castern states.
cover seven north-

Composition of the Tribunal

The Drincipal bench of the tribunal will be headed by a chairperson, and

will have judicial and administrative members. Only a former judge of the
Supreme Court or a tormer chief justice of a high court can be the
chairperson, while the judicial members will be serving or retired high
court judges. The administrative members will be drawn from among retired
armed forces personnel who have served as Judge Advocate General for at
least a year or are of rank not below major general or equivalent. A bench of
the tribunal shall consist of one judicial and one administrative member.
When a serving person is appointed as an administrative member, he would
be retired trom service prior to assuming such appointment.0

Jurisdiction of the Tribunal

OriginalJurisdiction
The Armed Forces Tribunal will have original jurisdiction over service
matters. The term 'service matters' as defined in s 3 of the Armed Forces
Tribunal Act 2007 includes (1) remuneration, allowances, pension and
retirement benefits; (ii) tenure, including commission,
appointment,
enrolment, probation, confirmation, seniority, training, promotion,
reversion, premature retirement, superannuation, termination of service
and penal deductions; and (iii) summary disposal and trials where the
punishment of dismissal is awarded. The punishment of dismissal in a
summary trial can only be awarded by a naval disciplinary court constituted
during war or active service under the Navy Act 1957.
A person aggrieved by an order pertaining to any service matter mentioned
above may make an application to the tribunal. The application must be
ompanied by the prescribed fee and necessary documents. The tribunal
shall not admit an application unless it is satisfied that the applicat has
exhausted the remcdies available to him under the Army Act 1950. i
will, however, admit a case where an individual has nmade an application
30 Armed Forces Tribunal Act
2007, s 6.
31 Ibid, s 3(0).
32 Ibid. s 14(2).
33 Ibid, s 21(1).

269
 The Military JusticeSystem in India:An Anatysis
and no final order has been made by the central governmen
authority and a period of six months has expired." Retired seryiceOther
and their dependants and heirs will be authorised
35
to sonnel
approach the tribu
in disputes relating to service matters.

Appellate Jurisdiction
The tribunal will have jurisdiction in
relation to an
appeal againc.
findings of a court-martial or against an order or sentence passed the
shall allow an appeal against a conviction by a court-martial where
findings of the court-martial are not sustainable legally or (b) the f e
involve a wrong decision on a question of law or (c) there is a
irregularity in the trial resulting in miscarriage of justice.36 It shalerial
empowered to dismiss the appeal where it considers that no miscarria. be
of
justice has actually resulted to the applicant or is likely to be caused.
While
dismissing an appeal, the tribunal shall give reasons in writing. It shall
not admit an appeal unless it is satistied that the
applicant has exhauseded
the remedies available under the Army Act 1950.

Power of the Tribunal

The tribunal, while disposing an application relating to a service

matter,
may summon and enforce attendance of any person, may require production
of any document and may receive evidence of affidavit. It may issue
commission for the examination of witnesses or documents or may
requisition
any public record or document from any office. However, this power shall
be subject to the provisions of ss 123 and 124 of the Indian Evidence Act
1872. The tribunal shall decide both questions of law and fact, and may
dismiss an application, review its earlier decision or set aside any order of
dismissal.58
The
tribunal, whiledisposing of an appeal against the decision of a
court-martial, shall be deemed to be a criminal court. It shall
be empowe
to
substitute for the findings
of the court-martial a finding of
any other offence for which the offender could have been lawfully found
'Guilry for
guilty by the court-martial and pass a fresh sentence. If a sentence is foune
t o be excesSive, illegal or unjust, the tribunal may (i) remit the sente
1) mitigate the punishment awarded or (ii) commute the punishmet
tence
any lesser punishment mentioned in the act. Ilt may enhance a senteu

34 Armed Forces Tribunal Act 2007, s 22(1)(a).

35 Ibid, s 2(2).
36 Ibid, s 15.
37 Proviso to Armed Forces Tribunal Act 2007, s 15 (4).
38 Armed Forces Tribunal Act 2007, ss 14(4), 14(5) and 14(6).
270
 Armed Forces Tribunal

a court-martial; release the appellant, if senrenced to

w a r d

ded by
e d

with or without conditions; suspend a sentence of

imprisonment on parole
nment; or pass any other order as it may think appropriate."

Retrial

also have the power to quash conviction and order a

a
The tribunal
ihunal shall shall
shall not be retried for an offence
court-martial. The appellant
al by a
which he was convicted by the original court
the offence for
r e t r i a l

re han the
other than
in of which his appeal is allowed. He can, however, be
m
rial
a
and
r t
respect
i a l

in the alternative, in respect of which the

for any
offence harged
retriea

in consequence of convicting him of

rt-martial
c o u r t - m a r t i a l
recorded no
findings
40
first-mentioned
offence.
the and shall have the power to
tribunal shall be a c o u r t of record
The laid down in
lt shall not be bound by the procedure
nitnish for contempt.
the principles of
Civil Procedure 1908, but shall be guided by
che Code of bail to a military
The tribunal is empowered to grant
natural justice. n o t be released if
he has been charged
a n accused shall
accused. However, for life. A person
offence punishable with death o r imprisonment
with an
tribunal may either appear
in person
o r appeal to the
a n application
making of his choice to present his
case

assistance of a legal practitioner

or take the
before the tribunal. fixed time
Act 2007 does not provide any
The Armed Forces Tribunal that every application
o r appeal. It provides
frame for deciding a n application for
as possible'.""
The act also provides
shall be decided 'as expeditiously pending before
suit o r other proceeding
c a s e s . Every the
the transfer of pending
before the date of establishment of
any court
court
including a high
transferred to the tribuna.
tribunal would stand

Supreme Court
Appeal to
tribunal may be
filed in
decision or order of the of the
final days
in appeal against the tribunal, within 90
with the leave of the be granted
unless
Court, leave shall not
upreme However, such
decision of the
tribunal.2
for which he
was
2007, s 15(6).
the otfence
39 Armed Forces Tribunal Act c a n be
retried for (a) allowed: or tb)

that a n appellant his appeal is

b i d , s 16 provides
martial and in respect which court
martial o n aof
the original
court
convicted at the original a l t e r n a u i v e in
Onvicted by could have
been in the charged
for which he offence hin
any offence offence; or (c) any of convicting
finding in
first-mentioned consequence

Charge of the martial

recorded no

the court

spect of which
offence.
of the first-mentioned 23.
s
Act 2007,
Armed Forces Tribunal
42 Ibid, s 30.
271
 The Military Justice System mIndia: An Analysis

it is certified by the tribunal that a point of law of general public

is involved in the decision, or it appears to the dupreme impor
Court tha
point is one which ought to be considered by that court.3

CRITICAL APPRAISAL

The Parliamentary Standing ommittee on Defence, which examine

bill,4 was of the view that military laws should be strict enoueh
to
with military offences firmly and ettectively to enforce discipline. hu
the same time should not be oppressive to the extent of having a demoralis
effect on defence persontnel. While the Armed Forces Tribunal will bevol.
its institutional independence, it will have to exhibit its
impartial
while deciding claims and cases against the State. Some important issm
which may cause hardship to military personnel are as follows.

Service Matters
The tribunal will not have any jurisdiction in matters relating to (i) transfer
and postings or (i) leave or () summary court-martial, except where th
punishment involves dismissal or imprisonment for more than three months
This is a serious lacuna in the tribunal's original jurisdicion. The term
leave' was included in the jurisdiction of the Bill. However, the Ministry
of Defence approached the committee with the apprehension this may
burden military units with excessive litigation, which may affect their
operational preparedness and discipline, and recommended that the issue
of leave be excluded from the jurisdiction of the tribunal. The ministry's
view that units may be burdened with excessive litigations arising out ot
leave is not supported by any empirical study.
Transfers and Postings
The issue of transfers and postings is an important issue that has been Kcp
out of the purview of the tribunal. The Committee was also of the vIew
that transfers and postings be kept out of the purview of the tribuna
would affect the 'operational requirements and discipline' of the torr
However, it had recommended the formulation of a clear transter poiu by
the services. It appears that the committee erred in its conclusion on
forces
issue. Available data reveal that out of 9,365 cases related to arme
cent)
personnel pending before various high courts, only 74 (0.79 Per t forces
relate to transfers and postings. Thus, the apprehension that armed

43 Armed Forces Tribunal Act 2007, s 31.

44 Full report is available at hrp://164.100.24.208/1s/CommiteR/Defence/2ipot

272
 Armed Forces Tribunal

personnel would rush to the tribunal for remedy against transfers and
postings
is justified.
not

Military commanders at various levels are empowered to award minor

punishments summar1ly to ofticers and PBORs. The tribunal is not
empowered to entertain any petition against the award of summary
punishments such as the forteiture of seniority or severe reprimand to officers
or detention/imprisonment to PBORs." Summary disposals and trials were
kept within the purview of the tribunal in the bill. The Ministry of Defence
subsequently proposed that they be kept outside the purview of the tribunal
since the punishments awarded are minor in nature. Since such punishments
have grave etfect on the career prospects of serving personnel, the Committee
recommended that summary disposals and trials must be kept in the purview
of the tribunal. However, this proposal was not accepted by the Government.
The denial of the right to appeal to the tribunal in these matters, when
viewed from a different perspective, would mean allowing the military
commanders to have the perception that their decisions relating to postings
and transfers, leave and minor punishments, even if arbitrary, cannot be
questioned. Aggrieved persons would then be forced to seek remedy through
the writ jurisdiction of the high courts or the Supreme Court. This would
be contrary to the aims and objectives of the tribunal.

Summary Court-martial

Trial by a summary court-martial (SCM) has been excluded from the

jurisdiction of the tribunal, unless it awards imprisonment for more than
46
three months or dismissal from service."" This system of trial is now prevalent
in only three countries-India, Bangladesh and Pakistan. lt is the most
extensively used military procedure against personnel below the rank of
junior comnmissioned officer in lndia (995 SCMs were held every year on
average during 1999-2004). Trials held under the SCM have been criticised
by high courts and the Supreme Court for awarding excessive and harsh
punishments; denying procedural rights guaranteed under art 14 of the
Constitution; lack of evidence; arbitrariness; lack of justice; and non-
compliancewith the Army Rules.
The Delhi High Court has recently held that an SCM can legitimately
be convened when there is a grave and compelling cause for taking premature
action, which would be defeated if reference to a DCM or GCM is made.

45 The punishments may also be inflicted in respect of offences committed by persons subject
to the Army Act without the intervention of a court-martial. Army Act 1950, ss 79-80 and

82-85
46 Armed Forces Tribunal Act 2007, s 3(o)(iv).
47 Lance Naik VP Singh v Union of India WP (C) 2511/1992 decided on 25 January 2008,

273
 The Military Justice System in lndia: An
Analysis
The court, while comparing the
powers of an SCM in India
the US, commented that the issue
presents a sad picture,
w
with
that the law in India remains a whicat
vhich portraysin
vestige of the colonial era. t
Mindful of the fact that Article 33 of the Constitution
held:
of India con[.
unbridled powers on Parliament to bring into confers
place a situation which
severely abridges the Fundamental Rights of a citizen
it becomee
bounden duty of the Courts to ensure that the nes
not
needlessly nullified. It also becomes essentialequality doctrine is
that the
should interpret the law in manner
à which will reduce to
Courts
minimum the inroads into the the
intrang1ble rights contained in
IlI of the
Constitution......A SCM must be an exception and Chapter
not the
rule. It can only be convened
where the
immediate and swift decision without exigencies demand an
which the situation will
indubitably be exacerbated with widespread
decision to convene an SCM must be
ramifications....The
which irself will be amenable preceded by reasoned order
a
to
judicial review. (Para 21-23 of the
judgement).
The high court, while
questioning the credibility of the procedure followed
in the SCM, held that it
was 'violative of
the principles of natural
for a
single-memberad hoc body to hold proceedings with no justice
a
defending officer or
appeal. Such an arbitrary provision for
followed in any other democratic system of justice is not
this arbitrary country. There is an
urgent need to abolish
system of trial carried over from the era of
There are other lacunae in colonial rule.
the provisions of the tribunal as
well.
Enhancing the Punishment
Section 15 (6) of the Armed
Forces Tribunal Act 2007, which
to the Tribunal to
enhance the punishment gives powcr
against the, fundamental principles of natural awarded by court-martial, 1s
a

to 'enhance the justice. Such 'coercive' power

punishment'
in other democracies.
is not exercised
by military appellate cours
The UK Court-Martial (Appeals) Act 1968
that the sentence awarded provides
during the disposal of an appeal shall not be a
sentence of greater
severity. The
Minister of Defence's claim in the Rajya
Sabha during discussion that 'the Bill is almost at
redress machinery of the advanced par with the existing
countries such as UK, France, Canada,
Australia and other countries may not be correct.
48 http://164.100.24.167/Bullitensessions/sessionno/212/31207.pdf

274
 Armed Forces Tribunal

Bail
The tribunal is empowecd to grant bail to a military accused. However,
an accused shall not be rcleased if he has been charged with an offence
nunishable with death or imprisonment for life."" The power of the 'Tribuna
nthis regard is lower than that bestowed on high courts in India. The
Code of Criminal Procedure 1973 provides that where a person is accused
arSluSDected of the commission of an oftence punishable with imprisonment
for seven years or more, the court may impose any condition on bail which
1av be necessary." The
possible conditions which can be imposed upon
bail are designed to prevent the accused from escape or repetition of the
offence. It has been held that a condition which has the effect of altogether
denying the accused access to bail, such as a large sum of money demanded
as bond for a poor person, will not be authorised by law. Nor can : a
condition be imposed which derogates or violates any Fundamental Right
of the accused."
The committee's recommendation that the tribunal may have the
discretion to grant bail to personnel charged with offences punishable with
death or imprisonment for life, as is provided by the high courts under
s 437 of the Code of Criminal Procedure 1973," has been ignored by the
Government. The tribunal's power in this regard should not be against the
guidelines of the Supreme Court.

Legal Aid

The Armed Forces Tribunal Act 2007 does not make any provision for
legal aid. The requirement of a fair trial under art 21 of the Constitution,
including the right to free legal representation, extends to the appeal
procedure. In fact, it has been argued that the need for adequate legal
representation for the accused is even greater in appeal cases, as they are
usually complex and legalistic, and the State is usually represented by
well-qualified and experienced lawyers."
49 Armed Forces Tribunal Act 2007, s 15(3).
50 Code of Criminal Procedure 1973, s
437(1).
SThe Code of Criminal Procedure 1973 grants the power to impose conditions only to the
court and this power may be exercised where: (i) the offence is one under Chapter VI1
offence against the State), Chapter XVI (offences against the human body), or Chapter
XVII (Offences against property) of the Indian Penal Code: or (i) the ofience is one of the
abetment of, or conspiracy to, or attempt to any such offence as mentioned above
52 Mohd Tariq v Union
of India 1990 Cri LJ 474.
53 Sk Layak v State 1981 Cri LJ 954.
4 The Code of Criminal Procedure 1973, ch XXXIIl provides for provisions as to bail and
bonds, and s 437 provides when bail may be taken in case of non-bailable oftences.
5 Hussainara Khatoon v State ofBiharIV 1980 SCC 98 at 102.

275
 in India: An Analysis
TheMilitary Justice System

m o r e pertinent in the contev.

of legal aid becomes of the
The question fundamental rights of those servinp
in
because the
armed forces The democratic
been abrogated by the C o n s t i t u t i o n . rovi ion of
have warrants the provision of legal aid for med
before law strongly
equality PBOR.
forces personnel,
especially

Time Frame
frame within which the tribunal ch. ould
any time
The act does not provide c o m m i t m e n t in s 23(2) that ever.
It makes a vague
decide a petition. as possible. The Parliamentary
shall be decided 'as expeditiously
application
Defence's recommendation that the tribunal shouid
on
Standing Committee been accepted by the
within six months has
not
case
decide every would be available with
Government. Since all the documentary evidence
could be summoned without
the service HQs and the appellant/witnesses
must have a fixed time
frame to decide an appeal.
undue delay, the tribunal

Judicial Delay
The act also provides for the transfer of pending cases. Every suit or other
court including a high court before the
proceeding pending before any the
tribunal would stand transferred to
date of establishment of the
in
to the armed forces are pending
tribunal. Over 10,000 cases relating
Court. The tribunal will inherit this
the high courts and the Supreme
to clear it. Besides, it
would also
backlog and may take about five years
who may have to travel great distances
to
cause inconvenience to litigants
An alternative dispute settlement mechanism must be
attend their cases.

worked out by the tribunal to finalise the pending cases.

The committee, which examined the bill, recommended that an expert

review the three service acts anda

committee be constituted to thoroughly
make recommendations to bring them in tune with the norms being
tollowed in other democratic countries. The committee also desired tha
coula
review of the above acts be taken up urgently so that the revised Acts
be in place before the establishment of the tribunal. Since the tribuna
would deal with cases pertaining all the three forces, the committec
to

desired that a common disciplinary code be created so as to bring uniformity

in the dispensation of justice in the armed forces. It recommended that tne
Australia and South
military justice systems followed in the UK, the USA,
Africa be examined in this context.

56 Armed Forces Tribunal Act 2007, s 34.

276
 Armed Forces Tribunal

discussion on the bill in the Rajya Sabha on 3 December

During the
Defence Minister had stated '... I sincerely feel we are, actually
2007, the nation, from
the Armed Forces. They need better care from the
a t fair
to
The Government, therefore, must
and from all of us.
no

Government, Act
he
to re-examine the Armed Forces Tribunal
aDDoint an expert committee
create a common code for the armed forces.
2007 and also