Judicial independence in the Indian military justice system, by Wg Cdr (Dr) U C Jha

The Institute of Military Law (IML), New Delhi, under the supervision of the Army Training Command (ARTRAC), Indian Army, has recently entered an agreement with the National Law University School of India University, Bengaluru to undertake research study on “Reforms in the Military Justice System.” Earlier, the three services were trying to ‘draft’ a common military code for themselves, a subject on which they had no expertise.  

The military legal system of India is of 1860-vintage and was framed after the 1857 First War of Independence. Most of its provisions have remained unchanged. For instance, the summary court martial was introduced in the 1860s in the Native Army to enhance powers of British commanding officers (CO) over native soldiers. The Rules of Procedure (Native) Army, Rule 12 made under the Indian Articles of War, 1869 stated: 

"When a soldier or other native amenable to the Indian Articles of war has committed an offence which is ordinarily triable by a summary court-martial, commanding officers, when determining by what court the prisoner is to be tried, are to bear in mind that the legislature, in conferring upon them the powers of a summary court-martial, intends that they shall exercise these powers."

After Independence when the Army Act, 1950 was passed by Parliament, this provision should have been omitted. Instead, it has been included in the Regulations for the Army as para 447, as follows:   

"When a person subject to the Army Act has committed an offence which can be tried by summary court-martial, officers commanding units when determining by what court the accused will be tried, will bear in mind that the legislature, in conferring upon them the powers of summary court-martial, intends that they will exercise these powers."

The system of trial by summary court martial is still prevailing in the Indian Army where a CO acts as prosecutor and judge and can try persons of the rank of non-commissioned officer and below serving under his command. The accused has the right only to present evidence and cross-examine witnesses. The CO can consult the officers of the judicial branch before or during the trial, however, an accused has no such right.  The Delhi High Court in Lance Naik V.P. Singh v. Union of India, [WP (C) 2511/1992 decided on January 25, 2008], while comparing the powers of the summary court martial in India, with the US commented that the issue presents a sad picture, which portrays that the law in India remains a vestige of the colonial era.

The administration of justice plays an important role in the safeguarding and protection of rights. Having an impartial military judiciary that is free from interference and pressure from other branches of government and can guarantee the due process of law is crucial for the enjoyment and protection of rights. This blog post is mainly about the need of reforms in the judicial branch of the three services of the armed forces in India.

The concept of judicial independence requires that judges be free from any interference in the exercise of their judicial powers. Every judge must be independent of external influences that may seek to reduce his or her objectivity and impartiality. This requires independence from the other branches of government, as well as from any other influences that may affect the capacity of a judge to decide a case strictly on the basis of its legal merits. The department of the Judge Advocate General (JAG) in the Indian Army, Air Force and Navy represents the judiciary of the respective services. The JAG is the legal advisor to the service chief in matters of military, martial and international law. The JAG and his officers comprising the judicial branch of the armed forces are subordinate to the convening authority, who controls their service career. 

Unfortunately, the JAGs in the three services are subordinate to senior officers responsible for administration: to Adjutant General (AG) in the Army, to Air Officer-in-Charge Administration (AOA) in the Air Force, and to the Chief of Personnel (COP) in the Navy. At the Command HQs, the department of Judge Advocate is represented by the Command Judge Advocate General (CJAG) in the Army and by the Command Judge Advocate (CJA) in the Air Force. They are subordinate to the Commander-in-chief and report to him through a senior administrative executive.

The JAG plays an important role in courts-martial. A judge advocate is appointed for every general court-martial. His presence is not necessary at a summary general court-martial, where three officers untrained in law are empowered to award the sentence of death. His principal function at a court-martial is to sum up the evidence after the closing address of the prosecution and the defence and to advise the court on the law relating to the case. The judge advocate does not perform any function of an advocate or a judge. However, the court-martial deliberates on its findings (in the closed court) in his presence and the quality of his advice plays a crucial role in the trial. The judge advocate is in a position to sway the minds of the members of the court-martial, as the persons composing the court are untrained in law and cannot take his advice lightly. Thus, he plays an important role during the trial by court-martial and he is enjoined to maintain an impartial position. 

The JAG or one of his deputies frames the charges, advises the prosecution of the accused and conducts the court-martial.  Subsequently, another subordinate officer of the JAG reviews the proceedings. Thus, in a sense, the same set of officers act as the accuser/prosecutor, the judge and then also review the judgement. This in all probability would lead to a natural tendency on the part of the trial judge advocate or the officer reviewing the proceedings to willingly or unwillingly uphold the charges framed by his superior officer, who decides on his promotion and perks. In the discharge of his judicial and other functions, the JAG is subordinate to the AG, an officer who heads the prosecution in the Army. Thus, due to the organizational position of the JAG and his officers, there would always remain in the mind of the accused a lurking suspicion of bias.  

The judicial branch of the military justice system in most democracies is outside the military chain of command. India is the only exception, though independence of the judiciary is a cornerstone of the Indian Constitution.  It has been repeatedly held by the Supreme Court to be a basic feature of the Constitution. The general concept of judicial independence is that an individual performing judicial functions should not be under any pressure from the executive or any other authority regarding the decisions in any particular case. 

The British formulated the Indian military system to serve their own end. Hence, the office of the JAG, though held by a civilian judge in the British Army and Air Force, was always held by a military officer placed under the convening authority in India. The continuation of this system, instituted to keep a colony under control is not justified.

In August 2025, the Supreme Court of India ruled that reserving JAG vacancies for men is unconstitutional, reinforcing gender equality and merit-based selection in the Army. The Supreme Court struck down the Indian Army’s policy of reserving six out of nine JAG branch vacancies for men and only three for women, calling it “arbitrary”, unconstitutional and contrary to the principle of gender neutrality. Further, the Army and the Union government could not impose a ceiling on the number of women in the JAG cadre once they had been permitted entry under Section 12 of the Army Act, 1950. It directed that future recruitment be conducted through a common merit list for all candidates, with the list and individual marks made public. The Court said, “there is no explanation why gender-based vacancy allocation is necessary for a legal branch where the duties, training, and performance expectations are identical for all officers regardless of gender, and a merit-based process would only improve the branch’s efficiency.” 

In my opinion, keeping in view the responsibilities of the post and the likely susceptibility to command influence, it is necessary that an independent cadre of the officers of the judge advocates be created for the three services. The judicial branch may be headed by Chief Judge Advocate General (CJAG), of the rank of Lieutenant General under the Ministry of Defence.  The President of India, in consultation with the Chief Justice of India, appoints the CJAG. There must be a common pool of Judge Advocates for the three services. The necessary qualification for the post of CJAG and his deputies must be prescribed. The minimum qualification for the appointment of a judge advocate may also be prescribed. The CJAG must be legally required to report annually to the Minister of Defence on the administration of justice, as in the US and Canada. The Minister should ensure that the copy of this annual report is laid before each House of Parliament. 

The officers of the CJAG department should not be associated with preferring of charges or examination of summary of evidence, which may be looked after by an officer from the administrative department under the AG/ AOA or COP. The judge advocate should not retire when the court is considering the findings, as the members of the court may not be competent to decide upon questions of law. The judge advocate should be vested with the power of deciding questions of law instead of merely advising the court on these questions. This is necessary because the court martial consists of officers who are not acquainted with law. The judge advocates should be authorized to decide on the punishment in a court-martial as the issues relate to the principles of penology and jurisprudence. The members of a court-martial are untrained in law and not competent to decide such issues. 

The officers of JAG branch who retire in the rank of major general could be appointed as ‘administrative members’ in the Armed Forces Tribunal (AFT). They cannot function as ‘judicial members’ in AFT, a post reserved for retired High Court judges. This discrimination needs to be resolved by the Government. Further, there is a need for advanced training of the JAG officers in complex legal issues pertaining to lawfare, information and cognitive warfare, modern weapons systems like autonomous weapons and space warfare. 

The independence of the judiciary and legal profession is a fundamental principle recognized by the international community as indispensable to achieving a civilized society. It is a prerequisite for ensuring that the rule of law is upheld and for guarding against violations of rights and freedoms. The actions of military courts are all too often associated with miscarriages of justice and denial of the basic right to a fair trial. The proposed changes will result in a structure that will be more consistent with the newly reformed civilian criminal legal system in India. The military justice system of a country must satisfy the international standards that require judicial officers to be independent and impartial.