Unlawful command influence under Indian military justice

The British military justice system, conceived to ‘discipline’ a mercenary force, is the progenitor of the Indian military justice system. This system was modified after the Mutiny of 1857 and the military officer, who had the power to convene a court-martial was given absolute power over a court-martial; be it of convening, appointing members, or the award of sentence. Nothing has changed in the Indian military justice system even after 78 years of Independence. Even today, the convening authority under the military justice system holds an authoritative and influential position under the military justice system.

Powers of Convening Officers

Under the three service Acts, viz, the Army Act, 1950, the Air Force Act, 1950, and the Navy Act 1957, the service Chiefs have been empowered by the Government by a warrant to convene court martial for trial of persons serving under their command and once trial is complete, to confirm the findings and sentence of such court martial. The service chiefs have further issued warrants to senior commanders for convening and confirming court martials for trial of persons under such commands. Any such warrant may contain any restrictions, reservations or conditions as the officer/ authority issuing it may think fit.

Under the Army Act and the Air Force Act, a general court martial (GCM) and summary general court martial (SGCM) can try any person subject to the Act. They have complete jurisdiction to try any offence, though certain restrictions are placed upon their power to try cases of murder, culpable homicide and rape, if committed against the civilians. They can award any punishment authorised by the Act including the punishment of death and imprisonment for life. A court martial can also try a person who has ceased to be subject to the Act provided that the trial for the offence committed by him while so subject, commences within a period of three years of his ceasing to be so subject.

The convening officer exercises the following powers under the military legal system:

(a) Making the decision to prosecute an accused. An application for assembling a GCM or DCM is sent by the commanding officer (CO) of the accused to the officer empowered to convene such a court martial. Such applications are accompanied by a summary of evidence, a charge-sheet, and certain other documents like copy of court of inquiry, if held in the matter. Before acceding to the application for a GCM or DCM, the convening officer considers the nature of the case and uses his discretion as to prosecute an accused by court martial.

(b) Deciding the charges against the accused. After considering the opinion of the judge advocate (JA) on the recorded summary of evidence, the convening officer approves the charges under the Act on which the accused be tried by the court martial.  

(c) Appointing the members of a court martial. The convening officer has full discretion in deciding as to who would constitute the court martial. The presiding officer of a court martial could be appointed by name or else the senior most member acts as such.

(d) Appointing a prosecutor.  The convening officer has the power to appoint a prosecutor for court martial, who must be a person subject to the Army Act. In complicated cases, he is expected to specially select an experienced officer as prosecutor.  

(e) Detailing a judge advocate for trial. The convening officer details a JA for every GCM; however, the presence of JA is not a must in SGCM. The JA, the prosecutor and the court members come under his authority in the chain of command.

(f) Suspension of Rules on the grounds of military exigencies or the necessities of discipline. It appears to the convening officer that military exigencies, or the necessities of discipline render it impossible or inexpedient to observe certain provisions of Army Rules during a court martial (for example the right of the accused to prepare his defence or allocating him a defending officer), he may make such declaration.   

(g) Considering the pre-confirmation petition of the accused. An accused, who considers himself aggrieved by any order passed by any court-martial may present a petition to the convening officer who would be confirming the finding or sentence of such court. The confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the proceedings.

(h) Confirming or not confirming the finding or sentence of court martial. No finding or sentence of a court martial shall be valid unless confirmed. The convening officer has the power to confirm or not to confirm proceedings of court martial.  Non-confirmation would mean that court martial has not taken place. 

(i) Revision of the finding and sentence awarded by the court-martial. The findings and sentence of every GCM and SGCM may be once revised by order of the confirming authority, even if an accused is acquitted by the court martial. The court on such revision consists of the same officers as were present when the original decision was passed.

It is evident that under the Army Act and the Air Force Act, the convening authority has a dominant position and control over every aspect of disciplinary proceedings. Incidentally, this power of ‘convening officer’ does not exist under the Indian Navy Act. Whenever a criminal justice system bestows an individual with prosecutorial discretionary power, there is a serious possibility of overreach. The states, such as the UK, Australia, Canada, Israel and South Africa have restricted the role of commanders in their military justice systems in order to limit actual bias as well as accusations and perceptions of unlawful command influence in judicial proceedings. An effective judicial review system balances the power of the convening authority in the USA. The British military justice system has itself undergone a series of amendments and modification in the last 20 years, culminating in the adoption of a single system of permanent court-martial under the tri-service Armed Forces Act 2006.

While a separate system of military justice is required to deal expeditiously, decisively and fairly with service offences, it is essential that the system respond to the requirements of the Constitution and meet the expectations of serving military personnel. Unfortunately, the military justice system has been criticized in recent years by the higher judiciary and has not kept up with the changes in the domestic criminal system as well as international standards of fairness. The Supreme Court of India in PPS Bedi v Union of India (1982) observed that military trials are subject to varying degrees of command influence and commended: “In the larger interest of national security and military discipline, Parliament in its wisdom may restrict or abrogate such rights in their application to the armed forces but this process  should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirits of the constitution.”

It is evident from the documents relating to the making of the Indian Constitution that the military legal system was never given serious thought by its framers.  There is an urgent need to restructure the military justice system based on the rule of law to promote greater accountability and transparency.  One method of handling the unlawful command influence of the commander would be to abolish the review process of court-martial, as in the UK. A random selection of court members, as is done in Canada and Israel, could do away with unlawful command influence over court members. The duties of the convening authority relating to convening a court-martial should be divided between two independent authorities–the prosecuting authority and the court administrative authority–as in the British military justice system. In addition, removing the judge advocate general from the chain of command would ensure that an independent judicial forum is available to ensure fairness.

A concerted effort has been made by the Indian Government to annul over 1500 laws/rules and regulations that were carried down from the British Era and had no relevance in the current context. The Government, while reforming criminal laws in 2024, has announced that the British colonial rulers introduced these laws with an intent to inflict punishment on Indian subjects, the new laws aim to render justice to citizens by overhauling the punishment and procedures applicable for the investigation and prosecution of crimes. However, this drive did not encompass the military legal system, which is still stuck in the British Era.