India's Potemkin court -- was it worth the wait?

There are 34 authorized judgeships on India's Armed Forces Tribunal, 17 for retired judges and 17 for retired senior officers. Of these, only 11 are currently occupied. The AFT, established in 2009 in response to a 1999 recommendation of the Law Commission of India that in turn was prompted by a 1982 decision of the Supreme Court of India, has a backlog of, drumroll, nearly nineteen thousand cases. The Chandigarh Tribune reports on this indefensible situation here.

In the 1982 case, Lt. Col. Prithi Pal Singh Bedi v. Union of India & Ors, 1982 AIR 1413, 1983 SCR (1) 393 SCI, the court, per Desai, J., wrote:

Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of finding and/or sentence in confirmation proceeding under section 153 is provided for is poor solace. A hierarchy of courts with appellate powers each having its own power of judicial review has of course been found to be counterproductive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realised that an appeal from Caeser to Caeser's wife . . . confirmation proceeding under section 153 has been condemned as injudicious and merely a lip sympathy to form. The core question is whether at least there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged. Judicial approach by people well-versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacrificed at the alter of military discipline. Unjust decision would be subversive of discipline. There must be a iudicious admixture of both. And nothing revolutionary is being suggested. Our Army Act was more or less modelled on the U.K. Act. Three decades of its working with winds of change blowing over the world necessitate a second look so as to bring it in conformity with liberty oriented constitution and rule of law which is the uniting and integrating force in our political society. Even U.K. has taken a step of far reaching importance for rehabilitating the confidence of the Royal Forces in respect of judicial review of decisions of court-martial. U.K. had enacted a Court Martial (Appeals) Act of 1951 and it has been extensively amended in Court Martial (Appeals) Act, 1968. Merely providing an appeal by itself may not be very reassuring but the personnel of the appellate court must inspire confidence. The court martial appellate Court consists of the ex-officio and ordinary judges of the Court of Appeal, such of the judges of the Queen's Bench Division as the Lord Chief Justice may nominate after consultation with the Master of the Rolls, such of the Lords, Commissioners of Justiciary in Scotland as the Lord Chief Justice generally may nominate, such judges of the Supreme Court of the Northern Ireland as the Lord Chief Justice of Northern Ireland may nominate and such of the persons of legal experience as the Lord Chancellor may appoint. The court martial appellate court has power to determine any question necessary to be determined in order to do justice in the case before the court and may authorise a new trial where the conviction is quashed in the light of fresh evidence. The court also has power, inter alia, to order production of documents or exhibits connected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports and the like from the members of the court martial or the person who acted a Judge-Advocate, order a reference of any question to a Special Commissioner for Inquiry and appoint a person with special expert knowledge to act as an assessor. Frankly the appellate court has power of full judicial review unhampered by any procedural clap trap.

Turning towards the U.S.A., a reference to Uniform Code of Military Justice Act, 1950 would be instructive. A provision has been made for setting up of a court of military appeals. The Act contained many procedural reforms and due process safeguards not then guaranteed in civil courts. To cite one example, the right to legally qualified counsel was made mandatory in general court-martial cases 13 years before the decision of the Supreme Court in Gideon v. Wainwright. Between 1950 and 1968 when the [Military] Justice Act, 1968, was introduced, many advances were made in the administration of justice by civil courts but they were not reflected in military court proceedings. To correct these deficiencies the Congress enacted Military Justice Act, 1968, the salient features of which are: (I) a right to legally qualified counsel guaranteed to an accused before any special court martial; (2) a military judge can in certain circumstances conduct the trial alone and the accused in such a situation is given the option after learning the identity of the military judge of requesting for the trial by the judge alone. A ban has been imposed on command interference with military justice, etc. Ours is still an antiquated system The wind of change blowing over the country has not permeated the close and sacrosanct precincts of the Army. If in civil courts the universally accepted dictum is that justice must not only be done but it must seem to be done, the same holds good with all the greater vigour in case of court martial where the judge and the accused done the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremoveable. We, therefore, hope and believe that the changes all over the English speaking democracies will awaken our Parliament to the changed value system. In this behalf, we would like to draw pointed attention of the Government to the glaring anomaly that Courts Martial do not even write a brief reasoned order in support of their conclusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair play is denied to it. [Footnotes omitted.]