Indian armed forces in need of a common disciplinary code

The existing Indian military legal system contained in the Army Act, 1950, the Air Force Act, 1950, and the Navy Act, 1957, is in essence a replica of the British Indian Army Act of 1911. The Supreme Court in 1982 did the first major scrutiny of the military legal system in the case of Lt Col PPS Bedi and commented, “Ours is still an antiquated system. The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army.” The government failed to take any action for modernisation of the military legal system; however, it established the Armed Forces Tribunal in 2007 for the review of decisions of a court martial.

The provisions contained in the three service Acts are not similar. Under the Air Force Act, only three types of court martial, i.e., general court martial, district court martial and summary general court martial, have been provided. The Army Act, in addition to the above three types of court martial, also has a summary court martial which can try personnel below the rank of Junior Commissioned Officer. The Navy has only one type of court martial during peacetime and a disciplinary tribunal during war. The summary systems of a court martial, which have the power to award punishment up to death, were established by the British to try natives by their commanding officers. The power to award summary punishment, without trial by court martial, also differs in three services.

In the Navy, the finding and sentence of a court martial do not require the confirmation of the convening authority and become operative the moment they are pronounced, except in the case of a sentence of death which requires prior confirmation by the Central Government. The verdict of acquittal is final in the case of Navy, and not subject to confirmation or revision as in the Army and the Air Force. The judge advocates in the three services have virtually no effective role in a trial by court martial and the review of its proceedings.

The three service Acts differ on various safeguards available to military personnel. These Acts are unable to answer the needs of the modern soldier and are quite at odds with the liberal interpretation of the Indian Constitution. The existence of the separate Acts makes the use, interpretation, and amendment more complicated. It would be easier to modernise and amend a common code for the services than to do so individually. Following the creation of India’s tri-service Strategic Forces Command and uniformity in the functioning of the three services at various levels, there is a need for a uniform disciplinary code for the three services. A uniform code would be more appropriate in view of the fact that the three services are increasingly deployed on joint operations in India and abroad, for which they train together. A modern and fair system of service law is as important to supporting operational effectiveness as having the best-trained and equipped forces as possible.

The experiences of countries like the United States, the UK, Canada, South Africa and Australia brought to the fore the desirability of making the rights and duties of members of the armed forces ascertainable by reference to a single statute. These democracies have a common code for their armed forces and have carried out large-scale revisions to bring them in line with changes in international standards and the concept of the rule of law.

In 1965, the government had set up a committee for the drafting of a uniform code for the three services. The resulting Armed Forces Code Bill, 1978, was, however, rejected by the Chief of Staff Committee, which instead recommended amendments to the existing Acts. However, the changes were made only when the provisions went strikingly opposite to the civilian justice system and the military could no longer justify that the continuation of contested provisions is needed for maintenance of discipline.  

Modern military personnel and political leaders have to develop a mindset to think strategically. For drafting a common code, the issues which need consideration are:  Redefining the role of the judge advocate general branch; abolition of summary court martial; uniformity in the power of minor punishment in the three services, and its review; ensuring procedural rights to an accused during trial; the right to bail and legal aid;  review of the role of convening authority in the justice system; introduction of plea-bargaining; and streamlining the process of complaint redressal. Political and bureaucratic insensitivity to the service conditions of military personnel has stopped us from bringing in the changes made by other democracies. A fair military justice system is vital for upholding the morale and discipline of the armed forces and for retaining public confidence in them.

The author is a retired Wing Commander. Views expressed are personal.