Court martials can’t be supreme’

Says a Law Commission source: “Service personnel are not necessarily well-versed in law…even the Supreme Court had observed that people with theexperience to objectively look at facts and law should participate, as fair play and justice cannot always be sacrificed at the altar of military discipline.”

It’s no surprise that some members of the services have not been warm to this proposal. Says Lt Gen H Kaul (retd): “Army commanders have 36 years of service behind them, they have gone through various situations where their judgement has been of crucial importance, so no one can dismiss their experience casually. Also, it is imperative that the tribunal has the requisite knowledge of military law and of the requirements of the armed forces.”

Gen Kaul, however, believes that instead of a tribunal comprising of civilian members, Parliament should set up a services board (army, navy and air force), as a final court of appeal for court martials.

“Today, there is one single authority that decides the final outcome of the case. Perhaps, if the board has members like the chief of staff, vice-chief and commanding officers, it may restore the lack ofconfidence in the top hierarchy that exists today.”

The Law Commission, too, isn’t in favour of a totally civilian tribunal as provided by the UK Court Martial (Appeals) Act and the US Military Justice Act. For, that wouldn’t be conducive to discipline, it’s felt. The tribunal, therefore, will be headed by a retired civilian judge, with two members of the armed forces, namely, a retired Judge Advocate General (who always officiates in military courts) and a serving officer, that is, a Judge Advocate of the rank of a Major-General.

Air Commodore Jasjit Singh, director of the Institute of Defence Studies and Analysis, agrees with the commission’s recommendations. “It should have come 10 years ago,” he says, “a Parliament estimates committee in 1991 was alarmed to discover the increasing number of defence personnel going to civilian courts in the last two decades. For any redressal of grievances, the governing bodies should ensure two important factors; faith in the system — that it can deliver justice– and, that it should also appear that justice has been done.” Singh believes, today, that faith has progressively eroded in the armed forces towards military courts.

Singh says that inviting a civilian judge to chair the tribunal will help repose faith in the system. “A civilian judge will have no bias for any particular service or chief etc. It is also important that the member from the services should be someone who is at the end of his tenure so that he does not feel he has to look behind his shoulder all the time.”

The Army Act, enacted in 1950, contains as many as 16 chapters, and three deal with court martial, and while there are sections which provide for revision of a finding or sentence by the court martial, there is only one remedy provided to the accused. And here too, the aggrieved can petition only the Central Government, Chief of Army Staff or any prescribed superior officer in command, and the section can be invoked only “after” the finding of the sentence has been confirmed by theconfirming authority, “not before” the confirmation.

The Law Commission has proposed the new appellate tribunal be empowered to determine any question necessary to do justice in the case before it and may authorise a new trial where the conviction is quashed in the light of fresh evidence. When the Supreme Court judgement had observed that court martials do not even write a brief reasoned order in support of their conclusion, even in cases where they impose the death sentence, Parliament had enacted the Army Amendment Act in 1992, obliging military courts to give brief reasons for its decision. However, a similar amendment has not been effected in court martials under the Navy and Air Force Acts. “This is bureaucratic bungling as someone in MoD decided since the Act only says Army, it cannot apply to the other services,” says a Law Commission member.

The Commission has proposed that the appellate tribunal shall be common to all the three services, with the difference that when the appeal comes from anAir Force officer, the third member of the tribunal (the serving officer) shall be the Judge Advocate of the rank of Air Vice Marshal. There shall be one tribunal for the entire country in view of the fact that there are about 125 to 140 writ petitions filed in various high courts by service personnel, the seat of the tribunal shall be at Delhi but it is open to the tribunal to hold its sittings at such places for the purpose of convenience.

What the commission recommends

Citing the Supreme Court ruling of 1982 that absence of even one appeal with power to review evidence or punishment is a glaring lacuna, the commission has proposed: