Thursday, June 21, 2018

Armed Forces Tribunal -- is broader jurisdiction needed?

Writing in Daily News & Analysis, Global Military Justice Reform contributor Wing Cdr (R) U C Jha usefully suggests that the jurisdiction of India's Armed Forces Tribunal should be broader. He notes these shortcomings:
The AFT is not empowered to intervene in matters relating to summary trials, leave, and transfers and postings. As regard to its appellate jurisdiction, the tribunal is devoid of its jurisdiction in cases of summary court martial where punishment awarded by the court is less than three months of imprisonment or dismissal.

The AFT Act does not make any provision for legal aid. Insufficiency of legal aid poses a serious handicap for the Armed Forces personnel approaching the tribunal. The question of legal aid becomes more pertinent in the context of the Armed Forces because the fundamental rights of those serving in the forces have been abrogated by the Constitution. Under Section 15 (6) of the AFT Act, the Tribunal has the power ‘to enhance the punishment awarded by a court-martial’. It is against the fundamental principles of natural justice as such ‘coercive’ power is not exercised by the military appellate courts in other democracies.

The AFT has been given the power to punish people for committing contempt of proceedings in the court (ie, criminal contempt). However, if any order has not been followed by the government officials, the AFT lacks the power to get their orders executed by way of civil contempt. This is a serious lacuna.

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