Post on 18-Aug-2015
Presentation byMaj Gen Nilendra Kumar
DirectorAmity Law School, Noida
andDirector General
Amity Directorate on Research & Innovation in Law & Allied Areas
This presentation discusses a few issues relating to dispensation of justice to the armed forces personnel in India.
Validity and strength to Military Law Mechanism is provided by Article 21 to the Constitution of India.
Article 21 underlines two prime objectives concerning functioning of the Armed Forces and other forces:-
1. Maintenance of discipline.2. Proper discharge of their duties.
Reference to these two objectives could justify restriction or abrogation of any of the fundamental rights included in Part III.
Constitutional Base
A right to a fair trial includes the right for legal assistance. This is part of the right to life enshrined under Article 21 of the Constitution of India.
APPROACHIn each case where a person complains of the deprivation of his life or personal liberty, the court in the exercise of its constitutional power of judicial review has to decide whether there is a law authorises such deprivation. Also whether in the given case the procedure prescribed is just, fair and reasonable as opposed to arbitrary, whimsical or fanciful.
What is meant by Fair Trial?
A trial which is fair and proper in the eyes of law viz. that which the law secures to the party before an impartial jury. It is held in accordance with the procedure laid down by law.
Element of a Fair Trial
1. The right to counsel.2. The right to prepare defence (including right
to present witnesses and evidence).3. The right to be informed of charges.4. The right to have a judgment by an
independent and impartial court.5. The length of the trial.
Inbuilt Mechanism
The features of military law application process that go to comply fair trial doctrine.
1. Challenge2. Voting by members3. Annulment4. Power to pardon etc.5. Responsibility of Presiding Officer6. Attachment
ChallengeSection 130
The accused at the assembly of a court martial (GCM, DCM or SGCM) is asked whether he objects to being tried by any officer sitting in the court.
Voting by MembersSection 132
Army Rule 87(2)The opinion of the members of the court shall be taken in succession beginning with the member lowest in rank.
A person aggrieved by any decision of the court is afforded a statutory right to seek a remedy either prior to, or after confirmation of the proceedings.
Annulment of ProceedingsSection 165
Grounds of illegality or unjust
The proceedings may be annulled, by the authorities empowered, on the ground that they are illegal or unjust.
Power to pardon, remission and suspension
Sections 179 to 190
The provisions are thus fair and reasonable.
ARMY RULE 76(2)Responsibility of Presiding Officer
It is the duty of the presiding officer to see that the justice is administered and that the accused has a fair trial.
Attachment to Another Unit
The purpose is that the disciplinary proceedings can be speedily and satisfactorily completed without any interference.
COAS V Chadha EP, Maj; AIR 1991 SC 460
PRE TRIAL JUDICIAL CUSTODYis enforced
on the commission or discovery of any serious offence.
RA Para 392(d)
Arrest of an accused before, during and after trial is provided for under the Regulations
RA Para 292 (k)
FACTORS TO BE CONSIDERED BEFORE PLACING A PERSON UNDER ARREST
1. Nature of the offence2. Rank of the accused3. His character4. Provisions of various regulations
POWERS TO ARRESTWHO CAN ARREST
1. Any superior officerSection 101 (2)
2. Any officer, whether superior or notSection 101 (3)Section 105 (2)
5. Any Police OfficerSection 105 (2)
6. Provost MarshalSection 107 (3)
7. A Court Martial Army Rule 150
However, the provisions relating to release from ‘arrest without prejudice to re-arrest’ be applied more commonly.
RIGHTS OF THE ACCUSED
1. Uncensored correspondence with legal advisers; AR 33(1)
2. To interview any witness in his defence; AR 33(2)
3. To obtain through his CO written statements of witnesses, AR 33(3)
4. To have conversation with his legal advisers and witnesses unheard by others; AR 33(3)
5. To address an application to the DJAG of the command, if he is kept under arrest longer than 48 days without being brought to trial, or if not given full liberty for preparing his defence, AR 33(6).
1. Give him access to books magazines and newspapers.
2. Access to visits by family.3. Religious, psychological and moral
support.4. Need to treat him with greater sympathy
and compassion.
Legal Aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system.
The consequences of absence of an opportunity to obtain legal aid may be severe and result in loss f reputation, liberty or means of livelihood.
Absence of legal aid during
• Court of Inquiry• Hearing of Charge• Summary Trial• Summary of Evidence• Summary Disposal• Summary Court Martial
Summary Court Martial
Vested with powers to award upto one year imprisonment coupled with dismissal from service.
Consequences appear to be quiet harsh as it implies loss of job and liberty for one year. Also stigma that would operate as a bar for future employment.
A punishment (such as reprimand, reduction to the next lower grade etc.) imposed by the commanding officer to officers and men of his command for minor offences and infractions of discipline.
TYPES OF PUNISHMENTS OR ADVERSE ACTION
1. By Courts Martial2. Summary Trial; Sections 83 to 85.3. Summary Disposal; Sections 80 to 82.
4. Administrative Actiona) Presidential Pleasure;
Section 18b) Termination of Service by
Central Govt.; Section 19
c) Dismissal, removal or reduction by COAS and other officers; Section
20.d) Censure
i) Recordable ii) Non recordable
The instances where serious offences have been dealt by award of censure (recordable or otherwise) are not uncommon.
Such a practice not only amounts to abuse of authority but erodes the high standard of discipline by allowing the offenders to get away.
Presently, an accused has no right to demand a trial for court martial, except in limited situation of Sec 84(a).
A witness statement is a document recording the evidence of a person, which is signed by that person to confirm that its contents are true.
STATEMENT OF WITNESS AT DIFFERENT STAGES
1. C of 12. Hearing of Charge3. Summary of Evidence4. Trial
Court of inquiry involves a point of discipline. Hence, is almost always likely to bring out a lapse affecting character and military reputation of one or more soldier.
ISSUE 8
GENERAL RULES OF EVIDENCESection 133
Indian Evidence Act provisions apply to all proceedings before a court martial.
PRE TRIAL INFORMATION
Right of Accused to prepare Defence
1. Summary of evidence2. Charge sheet3. His rights under the Army Rules4. A list of name, rank and corps of the
officers who are to form the court.
The term ‘review’ mean a judicial re-examination of the case in certain specified and prescribed circumstances.
It is a process under which a court in certain circumstances can reconsider its own judgment.
REVIEW OF PUNISHMENT
1. Summary Trial; Section 86 to 882. Summary Court Martial
AR 133, Section 1623. Other Court Martial
AR 69; Section 164
Appeal
It is the right of entering a superior court and invoking its aid and interposition to redress the error of court below.
Right to Appealnow stands incorporated in military law process with the setting up of Armed Forces Tribunal.
CONVENING AUTHORITY
Is the person authorised under military law to set up a court martial by assigning members and referring charges to it.
Role of Convening Authority
1. To forward document to Dy. JAG of the commanding corps for pre trial advice.
2. To satisfya) That the charges to be tried by the Court are for offences within the meaning of the Act.b) That the evidence justifies a trial on those charges.
3. If not satisfieda) Order the release of the
accused; or b) Refer the case to superior
officer4. To satisfy that the case is proper one to be
tried by kind of court martial proposes.
5. To detail the officers to form the court and waiting members.
6. Furnish the documents as laid down toa) the Presiding Officerb) the accused
Command Influence
is the action on the part of a senior officer, willingly or unwillingly, to influence court members, officials or witnesses participating in military justice processes.
COMMAND INFLUENCE
The improper influence by a superior in command with the independent judgment of persons responsible for judicial decisions.Unlawful command influence can be Either actual or apparent.
Effect of Defect in Procedure
It cannot be said that every kind of defect in the procedure before a GCM renders its verdict invalid. However, if there is any violation of mandatory rules, the necessary benefit of the same is to be given to the delinquent.
Judiciary
A term applied to a co-ordinate department of the government, which construes and applies the laws, the officers of that department of government that expounds and administers the law.
Tribunal
A person or a body, other than a court set up by the state for deciding rights between contending parties in accordance with the rules having the force of law.
CONSIDER
1. Video recording of entire trial.2. Representation by a legal practitioner, ‘where
feasible’.3. Empower friend of accused a right of
audience.
DISCIPLINARY COURTS
a) Only for trial of officersb) During war or active servicec) Between three or five officers as
membersd) The presiding officer and majority of
the members from the Executive Branch.
e.At least one officer be senior in rank to the accused and be of rank Commander (Actg. Or substantive).
f) Limited jurisdiction as to offence and punishment
g) Any punishment inferior to detention
h) Presence of JA not necessary
FINALLYTHE QUESTIONS THAT NEED
CONSIDERATION
1. Can the different types of courts martial be abolished and replaced with a single court martial?
2. Can DCM be done away with?3. Can plea bargaining be introduced?4. Can the JA alone decide the
punishment?
5. Can there be standing courts?6. Should the accused be given an option to
elect trial by a court martial or military judge.