Under the title of "Time to court-martial the court-martial?," Livemint has this timely run-down of issues relating to the administration of Indian military justice. Here are excerpts:
The problems with this system, experts argue, are manifold. First and foremost, none of the officers are legally qualified. Secondly, since the convening officer is of the highest rank, there is the question of whether the other officers who constitute the court martial can act in an independent manner. “Most army officers will tell you that the rank of the convening officer plays no role in determining the outcome. The reason why a board of odd numbers (usually 5) is constituted is so that if there is dissent, then the ayes gain sway over the nays. The officer who is not happy or satisfied is required to attach a dissent note,” explains a serving brigadier who has served on a court martial.
But [Wing Cdr. (ret) U.C.] Jha says that officers cannot be clear of “command influence and cannot be completely independent while exercising their judgment. ” In some cases before court martial, a court of inquiry is set up in which it is determined whether the evidence supports the charges. The convening officer of a court of inquiry appoints the court martial’s members and has the final say in the sentence which points to a clear conflict of interest.
According to [Sailesh] Rai’s blog post, the European Court [of Human Rights] has ruled that service officers’ lack of legal qualification or experience makes it impossible for them to act in an independent or impartial manner. But Jha argues that in a court martial, the legal qualification of its members is not necessary. “In most court martials, members may not be law-qualified. However, for a general court martial, a JAG must be detailed,” explains Jha. Interestingly, JAG’s presence, according to Jha, is not necessary in a summary general court martial which can award death sentences. There is also no criterion for appointing officers. It is, as Jha explains, the prerogative of the convening officer.
When it comes to disciplinary action within its ranks, perhaps the services are justified in sticking to their laws, but in cases like Machil or involving other allegations of human rights violations, the forces need to be more open. Making the system more open so that the forces are not suspected of shielding the accused would be the first step in reforms in this direction. Jha suggests making court martial proceedings available to the public.
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