Military Justice Reform - Developments and Challenges

This is the text of the address by Major Navdeep Singh at the Military Justice panel of the recently concluded 23rd Commonwealth Law Conference 2023 at Goa.
Major Navdeep Singh
Major Navdeep Singh

The 23rd Commonwealth Law Conference 2023 was hosted in India this year at Goa.

The biennial conference was inaugurated by Goa Governor PS Sreedharan Pillai with an address at the opening ceremony by Law Minister Kiren Rijiju. The closing ceremony witnessed the second Soli Sorabjee Memorial Lecture by Chief Justice of India, Justice DY Chandrachud. 

The Military Justice panel at the conference, “Military Justice in the Commonwealth: common challenges and opportunities for reform” was chaired by Judge Alan Large of the United Kingdom with Major Navdeep Singh, Advocate, Punjab & Haryana High Court (India) and Colonel Michelle Nel, Vice Dean, Stellenbosch University (South Africa), both members of the five-member Military Justice Advisory of the Commonwealth Secretariat, as co-panellists. Also on the panel was Matthew Moorhead, Legal Adviser of the Commonwealth Secretariat.

The following is the text of the address by Major Navdeep Singh, Advocate, Punjab & Haryana High Court at the Military Justice panel.

The militaries of most nations have in place a separate justice system for the women and men serving in uniform. The need for a separate system emanates from various factors such as ensuring discipline- the bedrock of any military, the peculiarities of military offences, and the non-accessibility with the requisite immediacy, at times, of the regular criminal justice system due to deployment on active service. The challenges and needs of most democracies in this field are similar, but the trajectories have been varied. 

The Indian military justice system

  • Borrowed from the British. First provisions were made for the East India Company in 1754 followed by the Articles of War. Many sporadic developments followed later, finally culminating in the Indian Army Act, 1911.

  • The Army Act, 1950, The Air Force Act, 1950 and The Navy Act, 1954 govern the field today. Army Act was passed after independence and came into effect on 22 July 1950. The Air Force Act, 1950 also came into force on the same date. The Navy Act came into force on 01 Jan 1958. The basic structure of the new Acts is quite similar to the old provisions. 

  • No substantial/progressive changes made except introduction of a proper merits/appellate review from Courts Martial to the Armed Forces Tribunal (AFT) which was created in the year 2009 through the AFT Act, 2007

Shortcomings- institutional and attitudinal 

  • Absence of prosecutorial independence. There is no independent prosecutorial authority or Director of Prosecution.

  • All limbs of military justice work under the command and control of the authorities who are interested parties in prosecution, thereby reflecting a conflict of interest and (perceived or actual) command influence

  • Concept of separation of powers and conflict of interest are grey areas.

  • Military laws and systems followed are not draconian, but outdated and have long been jettisoned in the British jurisdiction from where they were borrowed. 

  • The appointment of Chief of Defence Staff incepted in India to usher jointness between the Army, Navy and the Air Force, but strong and substantial thought and effort required on the subject of a common military justice code for all defence services. Efforts must not remain restricted to paper and must result in on-ground action.

  • Absence of military judges [The members of Court Martial are not legally qualified and are only assisted by an officer of the Judge Advocate General’s (JAG) department who does not have a vote]. 

  • Absence of standing/permanent courts or infrastructure. 

  • Resistance (by default, not by design) towards change and propensity of status quo and lethargy on any suggested changes. 

  • All procedural/practice changes brought about till now are due to intervention of Constitutional Courts (Supreme Court & High Courts) and not by way of introspection or self-initiation. 

  • Immensely talented officers and thought-process available with a rich and globally appreciated jurisprudential bank of judicial precedents, but a collective organisational push needed.  

Desirable Changes 

  • Completely independent prosecution/prosecutorial agency/authority. 

  • Legally qualified military judges.

  • Permanent infrastructure and standing Courts for Courts Marital.

  • Ensuring total obliteration of command influence from Courts Martial and the entire system of military justice. 

  • Ingraining amongst the rank and file properly the concepts of independence of judicial functioning, separation of powers and the fact that the aim of a Court Martial is not to secure conviction but to ensure justice. 

  • Statutory changes to bring the Indian military justice system in line with the essence of the regular criminal justice system, as moulded over the years through judicial pronouncements and interpretations, and military justice systems of other democracies. 

Global Trends

  • The three key words occurring in the context of judicial bodies in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) carry the most weight even in the military justice milieu- competent, independent and impartial. If this is adhered to, everything else falls into place.

  • The report submitted by the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights (United Nations), Emmanuel Decaux, on the “Issue of the administration of justice through military tribunals” (2006), commonly referred to as the Decaux Principles, is a leading light for States, jurists, establishments and practitioners in the military justice field.  

  • At a meet held at the Yale Law School in 2018 (of which this author too was a member) attended by jurists from all over the world and representatives of the United Nations, the Decaux Principles were improved upon and updated with legal developments in the interim. The resultant report is known as the Yale Draft (Principles). This is the most recent attempt to collate broad principles on the subject and reflects the application and meeting of minds across jurisdictions. 

  • The decisions of the Supreme Court of Canada in Généreux (1992) and of the European Court of Human Rights in Findlay (1997) respectively, are two very important developments on the subject, relevant worldwide, especially for democracies. 

Important decisions by Courts in India on the subject of military justice

  • Lt Col Prithi Pal Singh Bedi Vs Union of India (1982). This was the first case in which the antiquated state of the Indian military justice system was adversely commented upon by the Supreme Court of India wherein it was observed that the progressive changes in other democracies had not reached the shores of India and that justice cannot be sacrificed at the altar of discipline. It was also observed that there should be a proper appellate body comprising civilians to sit in appeal over Courts Martial. Caution was also sounded on command influence in military justice. 

  • Union of India Vs Charanjit Singh Gill (2000). It was reiterated by the Supreme Court of India that despite lapse of about two decades after Prithi Pal Singh Bedi’s case, the law relating to Armed Forces remained static which required to be changed keeping in view the observations made by the Supreme Court, the constitutional mandate and the changes effectuated in other democracies. The Court was dealing with an appeal from the judgment of the Calcutta High Court wherein the High Court had set aside a Court Martial on the ground that the Judge Advocate ascribed to the court martial was lower in rank than the accused, which, as per the interpretation of the applicable rules by the High Court, was not legally permissible. The judgment of the High Court was upheld by the Supreme Court. 

  • Union of India Vs Vishav Priya Singh (2016). In this case, the Supreme Court was hearing an appeal from the Delhi High Court where the High Court had ruled upon the legitimacy of Summary Court Martial proceedings on various grounds. The main observation of the Delhi High Court was that Summary Court Martial was not a regular recourse and emanated from the mutiny of 1857 to ruthlessly control and squelch rebellion with summary powers provided to the Commanding Officers. The High Court had ruled that such powers were only to be used in exceptional circumstances where immediacy of action was required. While affirming the judgment, the Supreme Court observed, “We fully endorse and affirm the view taken by the High Court that SCM is an exception and it is imperative that a case must be made out for immediacy of action. The reasons to convene an SCM must be followed by well articulated reasons or the record itself must justify such resort.”

  • Union of India Vs LD Balam Singh (2002). The Supreme Court upheld the judgment of the Punjab & Haryana High Court which had ruled that the procedural safeguards available under a specific code (The Narcotic Drugs and Psychotropic Substances Act, 1985 in this case) would fully apply to military personnel also when tried by a Court Martial. More importantly, the Court observed, “While it is true that Army personnel ought to be subjected to strictest form of discipline and Article 33 of the Constitution has conferred powers on to the Parliament to abridge the rights conferred under Part III of the Constitution in respect of the members of the Armed Forces, but does that mean and imply that the Army Personnel would be denuded of the Constitutional privileges as guaranteed under the Constitution? Can it be said that the Army Personnel form a class of citizens not entitled to the Constitution's benefits and are outside the purview of the Constitution? To answer above in the affirmative would be a violent departure to the basic tenets of the Constitution. An Army Personnel is as much a citizen as any other individual citizen of this country.”

Developments on the subject in India 

  • As noted by the Supreme Court in Prithi Pal Singh Bedi and then in Charanjit Singh, there have hardly been any strides from within or any genuine introspection to modernise military justice and bring it at par with other democracies or even practices in regular criminal law in India. The two worthwhile steps, however, have been the creation of the Armed Forces Tribunal (AFT) which provides a proper merits review in the form of an appeal from Courts Martial where evidence can be examined (as opposed to a judicial review), and insertion of a provision which provides for rendering brief reasons by Court Martials for their verdicts. 

  • A substantial attempt towards reform in military justice was the creation of a Committee of Experts in 2015 by Late Mr Manohar Parrikar (of which this author was a member), the then Defence Minister of India, based on the sentiment expressed by the Prime Minister himself. Though the Committee was essentially created to reduce the massive litigation initiated by the Defence Ministry and the Defence Services against their employees and former employees, and for improvement of the system of redressal of grievances, aspects related to military justice reform were an essential part of its Report and an aspect which was requested to be closely examined by the Defence Minister. 

  • Recommendations by the Committee- amongst the primary recommendations related to military justice reform were creation of a permanent structure for Courts Martial, finding ways for reducing the influence of ‘convening authority’ on military justice, holding short capsules for JAG officers outside the military establishment (implemented), using the concept of Summary Court Martial as an exception (already directed by the Supreme Court of India in Vishav Priya Singh judgment supra in which the said recommendation of the Committee was also cited and endorsed) and constitution of a Seven Member Study Group to kickstart the process of progressive legislative changes in military justice. 

  • Most of the recommendations in the Military Justice Reform Chapter of the Report of the Committee of Experts have till date not been acted upon despite direction for action on it by the highest political executive. The Study Group was accepted in-principle by the then Defence Minister in 2016 and an ‘Action Taken Report’ was to be submitted within a period of 45 days, yet, unfortunately, it has not happened till date. 

  • Though there is no lack of determination or dearth of talent within the military set-up on the subject, there is a lack of collective will, administrative lethargy and inertia wherein the thought of systemic progressive change brings in an unexplained fear of the unknown, despite judicial intervention on a number of issues. Reform in the true sense will only be initiated when there is a clear-cut strong direction by the political executive by overruling any exaggerated claims of any such reform perceivably affecting ‘discipline’ or ‘national security.’ Rather, it must be realised that fair-play, justice and judiciousness promote discipline. 

A fresh opportunity

The recent creation of the appointment of Chief of Defence Staff in India, as mentioned above, presents a new and fresh opportunity to finally kickstart the process of reform of military justice, along with the creation of a common military justice code for all defence services, in India. The issues and challenges faced by most democracies in this field are common, and we must be open to considering the best practices of varied jurisdictions. 

The women and men defending the cause of democracy deserve the very best.

Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court, Member of the International Society of Military Law and the Law of War at Brussels and International Fellow at the National Institute of Military Justice, Washington DC. He is also the author of “March to Justice: Global Military Law Landmarks” and was part of the Yale Draft (2018) at the Yale Law School- an improvement of the UN Principles on administration of justice through military tribunals. He is also a member of the five-member military justice advisory committee of the Commonwealth Secretariat. 

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