Saturday, August 12, 2023

Editorial in The Telegraph (India) on the desirability of changes in military law in India in view of the reforms in the US

The Telegraph (India) has carried an insightful opinion piece attributed to its editorial board on the desirability of replicating in India the recent changes initiated by President Biden in the US through an Executive Order to implement military justice reform to strengthen the system of how the military handles sexual assault cases. 

The write-up crucially (and rightly) raises concerns on the independence of
the military justice process and the prosecution under the Indian system. While there is no dearth of voices within and outside the system for progressive changes in military justice in India, especially to make it more independent, the accompanying ground-work is lacking and very lethargic, although (minor) steps have been taken to conceptualize a common military justice code. Currently, the three defence services have separate Acts governing them.

However, one point which is not common knowledge amongst legal minds, both within and outside the country, is that military courts cannot try all offences committed by defence personnel against civilians, and in certain cases it is mandatory to process the case through a regular criminal court. Meaning thereby, that the law bars the trial of certain offences by a court martial. In case a person subject to military laws commits the offence of murder or culpable homicide or rape against a civilian, that person cannot be tried by a court martial unless the said offence is committed while on “active service” (practically in an operational area), outside India or “at a frontier post specified by the central government by notification in this behalf”.

The editorial can be accessed here.

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