Sunday, December 12, 2021

Where should soldiers be tried (and who should decide)?

Should armed forces personnel be tried in civilian court when the victims of their offenses are civilians? The question is being raised again in India's Nagaland State, as witness this Orissa Post column by Aakar Patel about the Armed Forces (Special Powers) Act.


  1. Certain confusion has been created in the said article. The legal position is as follows:

    1. Section 70 of Army Act, 1950, states that a person subject to the Act, who commits an offence of murder, culpable homicide not amounting to murder or rape against a civilian person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial. However, if he commits any of the said offences (a) while on active service, or (b) at any place outside India, or (c) at a frontier post specified by the Central Government by notification in this behalf, he shall be tried by a court martial.

    2. Section 125 of the Army Act dealing with choice between criminal court and court-martial states: “When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving to decide before which court the proceedings shall be instituted, and if that officer decides that they should be instituted before a court martial, to direct that the accused person shall be detained in military custody.”
    3. Therefore, where there is a dual jurisdiction as indicated above, the choice initially lies with the military officers to decide whether an accused should be dealt with by a court-martial or he should be handed over to the civil authorities for being dealt with according to civil law.
    4. Where a criminal court having jurisdiction considers that the accused should be tried before itself, it may, in writing, call upon the officer referred in section 125 above, to hand over the accused to it for trial, in which case the said officer should either hand over the accused as demanded or refer the case to the Central Government. The order of the Central Government on such reference, under Army Act section 126 shall be final.
    5. In the places where AFSPA is applicable, the decision of the Central Government as to the trial forum (court martial or civil court) of a military person remains final.
    Wg Cdr U C Jha (Retd)

  2. How often does the Central Government permit concurrent-jurisdiction cases to be tried in civilian court (under either the Army Act or the AFSPA)? I infer from the referenced article that this rarely if ever happens, but I'd value hard data on the actual practice over the last, say, 5-10 years.

  3. There have been few cases where such sanctions have been given by the government. Having said so, there are a large number of cases where military accused have been tried by court martial for civil offence and awarded exemplary punishment. But these are never highlighted by the media or NGOs. In one of the cases referred in the article (Kunan-Poshora rape), a false case of mass-rape was lodged against the military. Local media fuelled it and international media and NGOs were fed false information. In another case (Shopian rape and murder), local NGOs and media were instrumental in lodging false cases. In my book, “Indian Military Domestic Deployment: Armed Forces Special Powers Act and Human Rights” published in 2017, I have tried to cover these issue in greater details.

  4. What are the data? How many civilian cases are opened against military personnel and in what percentage of them does the Central Government agree to permit trial in civilian court to proceed?

  5. No hard data available. A chapter, "Protection of Good faith Acts from Abuse of the Process of Law" (by Alok Shukla, an officer of the Judge Advocate General branch of the Indian Army) in the recent book "March to Justice" by Navdeep Singh and Franklin D Rosenblantt perhaps holds the answer.
    Wg Cdr U C Jha (retd


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