The right to a fair trial in India's military legal system

The disciplinary process under the military law begins after a charge has been preferred by the Commanding Officer (CO) of the accused.  In the case of trial by a court-martial, the officer who convenes the court is equally responsible for its correctness.  The procedure for hearing of charge is contained under Army Rule 22, which was amended in 1993. Before amendment, the Army Rule 22 read as follows: 

Hearing of Charge: (1) Every charge against a person subject to the Act other than an officer, shall be heard in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call any witnesses and make any statement in his defence.

 

(2) The commanding officer shall dismiss a charge brought before him if, in his opinion the evidence does not show that some offence under the Act has been committed, and may do so if, in his discretion, he is satisfied that the charge ought not to be proceeded with.

 

(3) At the conclusion of the hearing of a charge, if the commanding officer is of opinion that the charge ought to be proceeded with, he shall, without unnecessary delay:

 

(a) dispose of the case summarily under section 80 in accordance with the manner and form in Appendix III; or

(b) refer the case to the proper superior military authority; or

(c) adjourn the case for the purpose of having the evidence reduced to writing; or

(d) if the accused is under the rank of warrant officer, order his trial by summary court-martial.

 

Provided that the commanding officer shall not order trial by summary court-martial without reference to the officer empowered to convene a district court-martial or on active service a summary general court martial for the trial of the alleged offender unless either:

 

a) the offence is one which he can try by summary court-martial without reference to that officer; or

(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.

1993 Amendment

In 1993, few changes were made in the Army Rules 1954. The Army Rule 22 dealing with the hearing of charge, after amendment, reads as follows:

 

Hearing of Charge: (1) Every charge against a person subject to the Act shall be heard by the Commanding Officer in the presence of the accused. The accused shall have full liberty to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence:

 

Provided that where the charge against the accused arises as a result of investigation by a court of inquiry, wherein the provisions of the rule 180 have been complied with in respect of that accused, the commanding officer may dispense with the procedure in sub-rule (1).

(2) The commanding officer shall dismiss a charge brought before him, if, in his opinion, the evidence does not show that an offence under the Act has been committed, and may do so if, in his discretion, he is satisfied that the charge ought not to be proceeded with.

Provided that the commanding officer shall not dismiss a charge which he is debarred to try under sub-section (2) of section 120 without reference to superior authority as specified therein.

 

(3) After compliance of sub-rule (1), if the commanding officer is of opinion that the charge ought to be proceeded with, he shall within a reasonable time –

 

(a) dispose of the case under section 80 in accordance with the manner and form in Appendix III; or

(b) refer the case to proper superior military authority; or

(c) adjourn the case for the purpose of having the evidence reduced to writing; or

(d) if the accused is below the rank of warrant officer, order his trial by summary court martial:

Provided that the commanding officer shall not order trial by summary court martial without a reference to the officer empowered to convene a district court-martial or on active service a summary general court-martial for the trial of the alleged offender unless:

 

(a) the offence is one which he can try by a summary court-martial without any reference to that officer.

 

(b) he considers that there is grave reason for immediate action and such reference cannot be made without detriment to discipline.

 

(4) Where the evidence taken in accordance with sub-rule (3) of this discloses an offender other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge. 

Two new provisions added in Army Rule 22 [shown in italics above] are violative of the right to a fair trial, enshrined under the Constitution of India as well as Article 14 of the International Covenant on the Civil and Political Rights, ratified by India in 1979. Analysis of two new provisions inserted in Army Rule 22 is as follows. 

I. Proviso to Army Rule 22(1): Proviso to AR 22(1) states that in case a charge has been preferred on the basis on the findings (result of investigation by a court of inquiry), where in the individual has been afforded an opportunity under Army Rule 180, the CO during hearing the charge may dispense with procedure stated in AR 22(1). It means that a CO under the proviso to Rule 22(1), while hearing the charge, could deny the said individual who is now stands as an accused before him, the right to cross-examine any witness against him, and to call such witness and make such statement as may be necessary for his defence.

Let’s see what Army Rule 180 is? It deals with the procedure when the character of a person subject to the Army Act is involved during an investigation by a court of inquiry. It states that whenever any inquiry affects the character or military reputation of a person subject to the Army Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and of cross-examining any witness whose evidence in his opinion, affects his character or military reputation and producing any witnesses in defence of his character or military reputation.

A court of inquiry is a fact-finding body appointed by the CO or any superior officer. It merely collects evidence based on the terms of reference specified by the officer who assembled it. In a court of inquiry there is no charge-sheet and there is no accused. Therefore, mere allegations against character or military reputation by a witness while making a statement in a court of inquiry does not necessarily mean that it would result in framing a charge under the Army Act against the affected person. The rights under Army Rules 180 are part of natural justice and based on the Latin term Audi Alteram Partem meaning. “no one should be condemned in his absence.” An affected person may not like to make any statement or cross-examine a witness under Army Rule 180. The rights under the Army Rule 180 should not be treated at par with the rights under the Army Rule 22(1), where an individual is facing a charge under the specified provisions of the Army Act. Therefore, denying accused an opportunity to cross-examine witnesses against him, or to give evidence in his favour during hearing of charge on the grounds that he has availed similar rights in a court of inquiry would violate his right to a fair trial. The proviso to AR 22(1) thus is violative of a fundamental right to a fair trial.

It is not that the Army authorities are not aware of this shortcoming after the amended AR 22 became effective in 1993. In order to cover up this ‘defective provision’, an Army Order (03/2018/DV) was issued by the Chief of the Army Staff in 2018. Well knowing that an Army Order cannot alter the statute, the Order stated: “In case of any doubt regarding non-compliance of Army Rule 180 in letter and spirit, the CO shall not dispense with the procedure prescribed in Army Rule 22(1).” Here again the option whether to allow or deny a legitimate right to an alleged offender, discretion has been given to the CO and not to the person who is facing a charge.  An affected person might not have visualized that an allegation during the recording of evidence in court of inquiry would result in framing a charge against him at a later stage.

Looking from the perspective of the right to a fair trial, the presumption of innocence is one of the most ancient and important principles of criminal justice and the most fundamental of fair trial guarantees, and a prerequisite for any system based on the rule of law. Therefore, denying the right to cross-examine witnesses or produce evidence in his defence under the proviso to Army Rule 22(1); only because the alleged offender has already availed them during the investigation by a court of inquiry, shows that he has already been considered ‘guilty’ by the commanding officer and his right to be ‘presumed innocent’ has been violated. More so when the Army Rule 182 specifically states that the proceedings of a court of inquiry or any statement or answer to question shall not be admissible in evidence against a person subject to Army Act. The protection under Army Rule 22(1) is intended to limit the risk of an unfair trial of a military person and protect his reputation before his conviction for an offence. The ‘proviso’ to the Army Rule 22(1) violates it.

The right to be presumed innocent prohibits convictions that are predetermined or based on flimsy grounds. Respect for the right means that it is better to let the crime of a guilty person go unpunished than to condemn the innocent. Unlike some other components of the right to a fair trial, it is absolute: it is not subject to exceptions and cannot be restricted even in times of emergency or armed conflict. In cases where a conviction is based on non-existent, insufficient, or unreliable evidence, the presumption of innocence is violated and amounts to a miscarriage of justice.

II. Army Rule 22(4): The Army Rule 22 (4) provides that where the evidence taken in accordance with Army Rule 22(3)(c), [i.e., summary of evidence] discloses an offence other than the offence which was the subject of the investigation, the commanding officer may frame suitable charge(s) on the basis of the evidence so taken as well as the investigation of the original charge. 

This provision comes into force once a summary of evidence has been recorded under Army Rule 23; and therefore, it should not have been inserted under AR 22, which deals with hearing of charge. It should have been added as Rule 23A in the Army Rules.

In practice, an alleged offender is provided with a tentative charge-sheet under the relevant section(s) of the Army Act, at least 24-hours before the hearing of charge under Army Rule 22. When a CO, after hearing of charge, orders for recording of evidence, entire evidence against the alleged offender in put in writing as stated under Army Rule 23. A summary of evidence is not recorded on oath under Army Act/ Rules.

Let’s see what happens after a summary of evidence is recorded. Army Rule 24 (1) provides that the evidence taken down in writing in pursuance of Army Rule 23 (summary of evidence), shall be considered by the CO, who thereupon shall either (a)  remand the accused for trial by a court-martial; or (b)  refer the case to the proper superior military authority; or (c)  if he thinks it desirable, re-hear the case and either dismiss the charge or dispose of it summarily. Army Rule 24(2) states, “If the accused is remanded for trial by a court-martial, the CO shall without unnecessary delay either assemble a summary court-martial (after referring to the officer empowered to convene a district court-martial or on active service a summary general court-martial when such reference is necessary) or apply to the proper military authority to convene a court-martial, as the case may require.

Let’s discuss this issue with a hypothetical case. A junior commissioned officer (JCO) Subedar Mike, while on active service, is handed over a tentative charge-sheet for an offence under the Army Act section 63: Violation of Good Order and Military Discipline; for which maximum punishment is seven years of imprisonment. The CO after hearing the charge, orders for recording of evidence in writing under Army Rule 22(3)(c). After a summary of evidence is recorded, the CO forwards it, together with a tentative charge-sheet to the higher authority with an application for a trial by a general court martial (GCM), the power which is exercised by his superior, say the Corps Commander.

The Corps Commander is bound to seek advice of the judge advocate (JA) for all the cases for a trial by GCM under paragraph 459 of the Regulations for the Army. The JA examines the summary of evidence. According to JA, enough evidence is available in the summary of evidence to try the JCO for two offences under the Army Act: (i) First charge under section 40(b) for using threatening language to his superior officer, and (ii) Second charge under section 41(2) for disobeying a lawful command given by his superior officer. The JA recommends that in pace of charge under section 63, JCO to be tried under sections 40(b) and 41(2) of the Army Act. The punishment for both of these offences is 14 years of imprisonment. Surprisingly, Paragraph 471 of the Regulations for the Army (RA), a British-era provision, states, “The reports by the officers of the Judge Advocate General department are confidential and will not be communicated directly or indirectly and any authority lower than the authority to whom they are addressed. When proceedings are forwarded to lower formation or to the units, such reports will be removed.”

The CO, based on the recommendations of JA, will now be asked to make a new charge-sheet containing charges under sections 40(b) and 41(2) of the Army Act, which will be forwarded to the Corps Commander; who will make his order for trial by GCM at the foot of charge-sheet and signs it. The Cops Commander will also sign a Convening Order for trial by GCM detailing the members and other officials of GCM. The new charge-sheet, Convening Order and copy of summary of evidence is required to be handed over to the accused at least 24 hours in advance of the beginning of trial, since he is serving on active service. All this while JCO, the alleged offender would be unaware that the charges against him have now been preferred under different sections of the Act. This new charge-sheet may come as a shock to JCO.

The right to a fair trial demands that a defendant must be informed promptly of the nature and cause of the charge against him and also have adequate time and facilities for the preparation of his defence. The right to be informed of the charges ‘in detail’ is part of the right to a fair trial that applies to all cases of criminal charges. Information about the charges must be sufficiently detailed to enable the defendant ‘to understand fully the extent of the charges against him with a view to preparing an adequate defence’. The information must include both the facts— the defendant’s alleged acts or omissions— and the legal characterization given to those facts. Therefore, it is necessary that the copy of the report of the JA addressed to the Corps Commander be made available to the JCO to understand the basis on which he has now been charged under sections 40(b) and 41(2), instead of section 63 of the Army Act. However, RA 471 prohibits this.

The right to a fair trial is a fundamental safeguard to ensure that individuals are protected from unlawful or arbitrary deprivation of their human rights and freedoms, most importantly of the right to liberty and security of person. The right to a fair trial also envisages that a defendant must be provided with information about the ‘cause’ of the charge—meaning the facts underlying the allegations. The extent of the information that must be disclosed depends on the circumstances of each case; but must include the defendant’s alleged acts or omissions that ‘support each of the legal elements of the crime charged’.  For instance, charges under section 63 can be based on ‘vague’ acts that were not ‘specific’ or ‘clearly identified’ whereas the charges under sections 40(b) and 41(2), are for specific wrongs committed by a defendant. Therefore, the provisions of Army Rule 22(4) are discriminatory and violate the right to a fair trial. Additionally, Paragraph 471 of the Regulations which states the reports by the officers of the Judge Advocate General department are confidential and will not be communicated directly or indirectly … and will be removed when … forwarded to lower formations; is against the principles of natural justice. A fair trial is not possible if the defendant is not able to fully prepare and present a defence. This means that a defendant must know the charges and the facts related to those charges and have adequate time and facilities to prepare his defence to those charges. These twin components of the right to a defence are also closely linked to the defendant’s right to cross-examine witnesses. Fair trial requires that the accused person is given adequate opportunity to defend himself. But this opportunity will have no meaning if the accused person is not informed of the accusation against him

There is usual practice in the military hierarchy to claim that our laws are time tested. Another view is taken that the rights of military personnel could be abrogated or restricted under Article 33 of the Constitution. The Parliament has enacted section 21 of the Army Act, 1950, under the authority of Article 33 of the Constitution, which states that the Central Government may make rules restricting the right of persons subject to the Act. The Central Government has accordingly made Army Rules 19 to 21 under which military personnel cannot associate with trade unions, participate in political activities and communicate with the press. 

Thus, the right to cross-examine a witness against him cannot be denied to an alleged offender under ‘proviso’ to Army Rule 22(1), even if these are based on the findings of a court of inquiry, where similar rights have been availed by the alleged offender. The Supreme Court of India has held (Moti Lal Saraf v. Union of India, 2007) that the concept of fair trial flows directly from the Article 21 of the Constitution of India--the fundamental right to protection of life and personal liberty. Procedural justice, according to Mechelle Maiese (2020), demands (i) those carrying out the procedures must be impartial and neutral, (ii) those directly affected by the decisions should have a voice and representation in the process, and (iii) the processes that are implemented should be transparent. People feel affirmed if the procedures that are adopted treat them with respect and dignity, making it easier to accept even outcomes they do not like. The ‘proviso’ to the Army Rules 22(1) and Army Rule 22(4) are violative of fundamental right to fair trial in a criminal proceeding and must be deleted. Such provisions do not exist under the Air Force Act 1950 and the Navy Act 1957 and the rules/regulations made thereunder.

The Army Act 1950, the Air Force Act 1950, the Navy Act 1957 and related legislations need to be reviewed in view of the development in the international human rights law, changes made in domestic laws and judicial pronouncements. An expert committee should be constituted to review the service legislations and create a common code of justice for the armed forces to bring uniformity in the dispensation of justice. A large number of Indians have been subject to the military justice system in the past 80 years, and more will be in the future. This makes it all the more necessary to examine the extent of the applicability of Article 33 of the Constitution to this section of the population and to protect their Fundamental Rights. Encroachment of the Fundamental Rights of the members of the Armed Forces is not permissible in matters which do not relate to the discharge of their duties or to the maintenance of discipline. It is the responsibility of the parliament and the executives to provide a justice system that will ensure an impartial and fair outcome.

-Wg Cdr U C Jha (Retd)