Outlook has an important article -- "A Just Wind is Blowing" -- on the recent report recommending, among other things, possible reforms in the Indian military justice system. The article reports, in part:
The committee . . . has stayed true to its brief and made observations that are staggering, coming as they do from top brass wont to exert control. The former faujis—Lt Gen Mukesh Sabharwal, Lt Gen Richard Khare, Maj Gen T. Parshad—and Maj D.P. Singh and [Global Military Justice Reform contributor Maj. (ret)] Navdeep Singh, a lawyer, want an overhaul of a colonial hand-me-down that is downright unfair on soldiers of a modern democracy. Risking the ire of the uniformed frat, which guards its systems with ferocity, they’ve said: “Fairplay and justice cannot be sacrificed at the altar of military discipline.”
They’ve raised questions resisted by the system so far: How impartial is the military justice system? And how insulated is it from command influence? Making a case for far-reaching changes in the dispensation of military justice, the committee says, “Gone are the days when defence establishments could invoke the veil of confidentiality or fear psychosis in all matters in the name of national security. This is understandable in operational and strategic matters, but cannot be allowed to impact administrative, personnel, pensionary issues.”
Military trials have often been challenged in courts on the ground that they lack in independence and are under the influence of the convening authorities. Superior military authorities even have the power to revise the sentences or findings of courts martial. The committee found that, in the military justice system, there was no clear separation of the powers of the executive and the judiciary. No wonder when these verdicts are challenged in higher, civilian courts, they have often resulted in strictures.
Progressive democracies like the US and Canada have already created impartial, independent military justice systems, but in India, as the committee noted, “all main organs of a court martial continue to be subordinates of the convening authority, which puts a doubt on their impartiality” and “visible and invisible strings of the military justice system are intertwined with the chain of command”. Agreeing on the need for reforms, former army chief Gen V.P. Malik says, “As our society and systems evolve, old rules and laws are amended. Our military laws are archaic, the structures and procedures should become more impartial. But it has to be done with care, without affecting discipline.”
One major suggestion from the committee is that, in all three services, the presiding officer and others on a court martial should be from a formation outside the influence of the convening authority. It also says a standing court martial system with suitable infrastructure must be created at two or three military stations under all commands so as to do away with the ad hoc courts martial convened in remote military locations.Things can move slowly in India (as in any democracy) -- it took decades before suggestions for an Armed Forces Tribunal came to fruition. The report that has been submitted is a very good sign, but the country's leadership has to take ownership of the reform issue and take the necessary next steps. Overhauling the military justice system and shedding pre-Independence features that Britain herself has abandoned is long overdue. A truly fresh start may be asking a lot, but India has the opportunity if it chooses to accept the report's challenge.
Meanwhile, tension continues to mount as U.S. military justice mavens anxiously await the release of the first report of the Pentagon's Military Justice Review Group. Will it be under the tree on Christmas? How profound will its recommended changes be?