Introduction:
The laws governing the Army, Navy, and Air Force are known as military laws. These military regulations both constrain troops’ actions and grant them certain unique powers. Soldiers have some rights that are restricted and unique rights that are granted to them under military law. For example, the Indian Constitution states that individuals selected to carry out national service, such as soldiers or bureaucrats, are not eligible to petition the High Court or Supreme Court if certain specific acts, such as military regulations, impair their fundamental rights.
Navy Act:
The Indian Navy (Discipline) Act, 1934, which was enacted in accordance with section 66 of the Government of India Act, 1919, served as the legal representation of the Naval Forces before to India’s independence.
Later, the Naval Forces—which had been established in India—replaced the act with the Naval Discipline Act of 1866. Similarly, the U.K. The Indian Navy Discipline Act of 1934 was authorised, and the Maritime Discipline Act was modified. Numerous amendments to the constitution were made. It was thought necessary to alter the enactment identifying with the Naval Forces as a result.
It was impractical to change the legislation governing the Naval Forces since the Indian Navy (Discipline) Act, 1934, which was in effect at the time, was dependent on the corresponding British Act. In 1950, however, the modified Army Act and the Air Force Act were loosened.
Army Act:
India’s military is governed by several laws, the most significant of which being the Army Act. This Act, which was passed in 1950, is applicable to both soldiers enrolled under it and those who serve in the Indian Reserve Force.
Air Force Act:
The Air Force Act was started somewhere around 1950 and it applies to both Indian reserve force members and troops who are registered under it.
In India, several paramilitary groups are subject to laws similar to those governing those applying for the defence services. Among them are:
the coast guard act,
The indo-tibetan border police act,
The border private security power act,
The act on assam rifles.
The Military Act took the place of the Acts. After the 1857 Indian Mutiny, the British initially sought to instil discipline in the Indian population. The primary aim of the Indian Army Act 1950, the Navy Act 1957, and the Air Force Act 1950 was to achieve this.
Defects in Indian Military System:
Our military system is flawed in a number of ways. Our military law has certain flaws since it occasionally emulates the antiquated British legal system. In order to address these flaws, creating an appropriate judicial system is essential.
No Bail Provision:
There is no bail provision for a military official who has been arrested. Depending on their authority, a military official’s superior may grant bail. The Supreme Court has established a number of normative guidelines that govern the granting of bail. But granting bail appears to be based on someone’s authority, which is irrational.
According to military regulations, an offender cannot be represented by a defending official, an officer, or by a civil attorney. Due to this, there is a dearth of legal assistance services, which the Indian Constitution guarantees as well. (Indian Constitution, Article 21).
Double jeopardy:
Article 20(2) of the Indian Constitution strengthens the right to be free from prosecution. Although this argument is accessible under the military justice system, it cannot be used in a civil court to prevent a retrial for the same offence.
Trial during a summary court – martial:
The offender military workforce trial takes place at the same time as the Summary Court Martial, a Special Court. Since there is no prosecutor in the SCM trial, some aspects of the prosecutor’s role are played out, making it inconsistent with the standards of justice established by the High Court and the Apex Court. When the accused lacks the assistance of a legal counsel or a protection official to defend himself, there has been a violation of Article 22 of the Indian Constitution. The Supreme Court and higher courts have severely criticised SCMs for not passing fair and reasonable sensibility criteria.
No right of appeal:
The process for a condemned person to appeal to a higher court is non-existent. According to Section 164(2) of the Military Act, an individual who feels offended by a military court’s decision or sentence may file a request with the government, the military chief, or any other recommended higher official who oversaw the official who confirmed the decision or sentence. As a result, the government, the military chief, or the other official may grant such requests because the circumstances may also warrant it.
People from Court Martial Members are neither legally competent nor prepared to oversee the administration of justice. During a trial, they don’t exercise their individual judgement since they are subject to a different dominating influence.
Loopholes of Enforcement Mechanism:
Enforcement in a state made up of sovereign states is typically decentralised, which means that the state that has been violated or may become violated has a crucial role to play. States may choose to assist a state that has suffered harm based on their own interests, which should take into account the desire for every member of that society to have their legal system upheld.
For the following reasons, this decentralised method of execution is particularly inappropriate under International Humanitarian Law (IHL) as it applies to ongoing conflicts.
First of all, it would be astonishing if disputes arising from IHL violations were resolved amicably, as in international armed engagements. International humanitarian law undoubtedly applies when two states are fighting each other, indicating that they are unable to settle their differences amicably.
Second, third states may respond in one of two ways to an armed conflict between two states. They may support one side over another for purely political reasons or, in cases involving international law, because Jus ad Bellum is the source. They will, therefore, support the victim of the animosity regardless of who violates Bello’s Jus. Third states may choose not to support a certain side. They can help ensure respect for international humanitarian law because they are neutrals, but they will always take care to ensure that their dedication to upholding the law won’t sway their crucial choice to prefer no side.
Amendments implemented and scope for improvement:
It is evident from the vast number of cases brought before the higher civil courts that the military’s system for delivering justice has been operating at a glacial pace and is ill-equipped to meet the expectations of those serving in uniform. There are a lot more court cases being reviewed by the Ministry of Defence and, consequently, the soldiers’ headquarters.
Many consider that the system of the military is against the Constitution’s liberal soul and there emerges an essential need to find some kind of harmony between a democratic society’s pressures and military discipline’s prerequisites. The military justice system of India can be traced back to England’s military laws. After the Mutiny of 1857, it had been made by the British to control natives and has some significant flaws. They are-
- There are no plans to post bail for the military personnel who was arrested.
- Insufficient legal assistance provided to the accused in military trials.
- The convening officer will have a significant amount of influence over the court-martial and chairman.
- A comparable executive will be placed in charge and have functional supervision over the Judge Advocate General branch.
- A military court’s verdict and sentence are not subject to appeal.
- Air Force employees are not entitled to the double hazard constitutional protection provided by Article 20(2) of the Indian Constitution to prevent a second trial in a civil court.
BY – APARNA SINGH KSHATRIYA