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| Manoj Joshi |
We are indebted to
Manoj Joshi for
this Outlook column, calling for reform of military justice, especially the appellate aspects, in India. Excerpt:
"Over time, the infirmities of the system have been apparent, especially since it has no built-in right to appeal and, given its draconian nature, bears instances of its misuse. To deal with this, the government established the Armed Forces Tribunals (AFTs) in 2007. The members here are mixed—senior retired judges and senior retired military officers.
"The big problem, however, is that the AFTs come under the ministry of defence, instead of the law ministry. So the appeals system is run by the very outfit against whom the appeals are usually entered. The key powers to have their judgements and orders implemented have been withheld from the Tribunals, and their rulings are simply ignored, if found inconvenient."
With due respect to author of the article, my submission is:
ReplyDelete1. There is nothing wrong in Section 34 of the Army Act which deals with the offences in relation to the enemy and punishable with death. The author’s objection that “since no one has been hanged till date for violating these provisions, it must be antiquated and written a fresh” is baseless. Perhaps he has not read the provisions in detail. The punishment of “death” is not the only punishment for these offences, a court martial can award any punishment lower in scale as listed in section 71, depending upon the facts of the case.
2. Not only military justice system in India, but in almost all countries, it is command dominated. Because a commander in military has dual task. He has to win a war and ensure that his forces remain disciplined even in peace. Debates which we see in civil society are not permissible under a military set up.
3. The author is again wrong when he says that “Death sentence may not visit you if you desert, mutiny..” A person can be awarded death sentence for ‘mutiny’ and ‘desertion on active service’ under Army Act s. 37 and 38 (1) respectively.
4. There is nothing wrong in the composition and procedure followed in a trial by court martial. Yes, we need independence of judge advocate from the military chain of command.
5. The author is unaware of the fact. That the armed forces do not have “forensic dep-artment”, it may have to seek help from the civil forensic departments for any investigation.
6. The Armed Forces Tribunal was created to fulfil the need of an independent appellate forum against the finding and sentences awarded by court martial. It has additional jurisdiction in ‘service matters’ and a large number of armed forces personnel have benefited from the decisions of the Tribunal. There is a serious drawback that the Tribunal does not have power of civil contempt. The Government is seized of the matter. The fact that the Tribunal is under the “ministry of defence”, in no way affects its judicial functioning.
7. On Jury system of trial in India: Commander Nanavati, accused under section 302, was initially declared not guilty by a jury, but the verdict was dismissed by the Bombay High Court. The accused was re-tried as a bench trial. This was the last case to be heard as a jury trial in India. The government had already decided and abolished jury trials soon after this case.
Wg Cdr U C Jha (Retd)
I have to disagree that "in almost all countries, [military justice] is command dominated." It is in the US (very regrettably, thanks to George III and Congress), but it is not in numerous other democracies, such as the UK, Canada, Australia, New Zealand, Ireland, South Africa, The Netherlands, Brazil, and Israel. Other countries, of course, don't face the issue because they have either abandoned military courts or limited its scope to purely disciplinary matters. India should move away from a commander-centric system.
Delete"its scope" should read "their scope."
Delete