Kulbhushan Jadhav’s case has brought out glaring deficiencies in Pakistan’s military legal system when compared to international standards of a fair trial. While the final verdict of the International Court of Justice is yet to come, it is time to introspect our own system. The military legal system has an origin in the 1857 Mutiny, which made the British draft a new legal system to discipline ‘mercenary’ forces. The law was revised in 1911 and after Independence in 1947, was adopted by both Pakistan and India. In Pakistan, the military regime amended the Army Act, giving it the power to try civilians as well as nullify the jurisdiction of higher civilian courts.
Few reforms were made in 1992 to strengthen the hands of commanding officer (CO) in India. The three services are following different legal systems. Some of the glaring shortcomings in the system are as follows.
Firstly, the CO is empowered to try a military person for civil as well as military offences. For instance, if a military person commits murder or rape of a civilian on active service or in an area notified by the government, he would be tried only by a military court. The CO or higher authorities can award minor punishment to the individuals up to the rank of Major, but the accused has no legal help during the trial. The CO can award imprisonment up to 42 days to a havildar. There is no right to appeal against this punishment.
Secondly, the CO can try a person up to the rank of havildar by summary court-martial and award punishment of one-year imprisonment and dismissal from service. The accused has no legal assistance during this trial. A court-martial constituted under military law determines both the findings and the sentence. The members of a court-martial are neither legally qualified nor trained in the administration of justice and exposed to varying degrees of command influence. A summary general court martial, constituted by three lay officers can award punishment up to death to any individual in the Army and in the air force. The accused can be denied formal charge sheet and legal aid on the grounds of expediency. The only solace is that the punishment of death needs confirmation from the Central government.
Thirdly, the higher authorities confirming court martial have unrestricted power to mitigate, remit or commute sentences without giving any justification even in the cases of civil offences. Such power is liable to be misused by the military bureaucracy. The judge advocate (JA), the judicial branch of the military, is placed under the administrative and functional control of the same executive which orders a trial by court martial and reviews the proceedings. The officers of the JA department are not independent and cannot be expected to give a fair and just opinion. The processing of a grievance petition in the three services remains faulty. The officials who may be the root cause of the grievance process the complaint. The Armed Forces Tribunal (AFT) also does not have any jurisdiction in grievances relating to leave, postings, transfers, summary disposals, and trials. Ironically, these are the core issues leading to grievances and stress in the armed forces.
Lastly, the AFT has no power of civil contempt. There have been a large number of cases where the military authorities or the government has failed to take action on the decisions of the Tribunal. The Indian military legal system in its current form is a hangover from a time when the battlefield was so far removed from the normal world that the armed forces needed to be self-contained. The world has moved forward in the last two decades and there have been major changes in the military justice systems of other democracies. It is time we strengthen our system and restore the confidence of the public in the quality of military justice.
The author is a retired Wing Commander. Views expressed are personal.
