Military jurisprudence

COURTS MARTIAL UNDER SCRUTINY: Maj. Gen. Nilendra Kumar; Universal Law Publishing Co., Pvt. Ltd., C-FF-IA, Ansal's Dilkush Industrial Estate, G.T. Karnal Road, Delhi-110033. Rs. 195.

MILITARY LAW is a subject least understood outside the defence services largely because of the absence of teaching and research in mainstream legal education.

Of late, there has been a spate of constitutional challenges against standards and procedures of court martial and of service matters, which compelled a revision of colonial statutes on the subject. Adoption of a series of international conventions in respect of armed conflict is also added to an otherwise limited area of military jurisprudence.

Given the size of the army and the complexity of tasks in which it is involved in the defence of the country, it is natural that military discipline and operations will increasingly become the subject of legal scrutiny for perfecting standards of adjudication and justice. However, the statutes and occasional decisions by the superior courts are inadequate material to do academic research of any value.

In this context, scholarly writings by officers of the Judge Advocate General's office who give legal advice to the Army Chief and administer justice to the army personnel are an important source of instructive information both to the officers and men of the army as well as the concerned citizens outside.

The author has made a signal contribution in this regard by publishing a series of books on different aspects of military law of which, the one under review is the latest. The book is a compilation of 14 articles, apparently written on different occasions to critically examine emerging issues and challenges like prosecuting terrorists, enhancing disciplinary health and professional competence, proxy war and national security, U.N. peace keeping operations, military conflict and international humanitarian law, protection of basic human rights of army personnel and legal accountability mechanisms of defence procurements.

A great deal of research on law and comparative study of practices elsewhere has gone into the writings and they are presented in a style understandable to both the lawmen and the laymen. A widespread concern for rule of law and fairness in procedures is evident in the analysis, which displays a judicial approach comparable to those of the judiciary outside.

If this is indicative of the level of knowledge and approaches of the Judge Advocate Generals in the three Defence Services, one fails to understand why they are not being considered for elevation to the higher courts of the land where there is need for multiple talents and of persons with higher levels of integrity and discipline.

Reading the book one gets the impression that it will be mutually beneficial for the country's judiciary as well as Defence Services, if Judge Advocate Generals, with legal training and experience, are made eligible for positions in high courts, tribunals and even the apex court.

Taking a cue from the judgment in Vineet Narain case (AIR 1998 Sc. 889) on fighting corruption, the author pleads for an office of Inspector General at the Army Headquarters to assume the role that the Central Vigilance Commission plays in the government. According to him it will help prevent corruption and economic offences in the Armed Forces and help evolve checks and balances fair to all concerned.

The court of inquiry is found to be inadequate to deal with rising incidents of mala fide exercise of discretion on the part of commanders and their supporting staff.

Discussing about the protection of human rights in conflicts involving national and international security, the author makes an expert analysis of application of human rights treaties and constitutional guarantees in certain situations in the Punjab and the North-East.

He pleads for a mechanism to prevent malicious actions intended to harass ex-servicemen for an act done by him in the discharge of his official duties. He argues that human rights violations are military offences under the Army Act (Sections 54 to 68) and can be dealt with by military courts as well as by the ordinary courts.

However, the author, from experience, contends that the military law approach is better suited to deal with human rights violation for a variety of practical reasons like speed, efficiency and fairness consistent with discipline and accountability.

If a Court Martial Appellate Tribunal as in the U.K. can be instituted in the Indian Armed Forces it will satisfy needs of justice in case of human rights violations.

Given the fact that information warfare in modern times has war winning potential, the author wants a pro-active and transparent approach in dealing with human rights in situations involving national security. The most interesting part of the book is the four chapters dealing with the prosecution of terrorists for which the author emphatically advocates a "military justice apparatus".

He is impressed by the model presented by the U.S. administration after the September strike. The evidentiary modifications are welcome and military commissions are more appropriate for trial of terrorist acts. The trial procedures are so designed to render a balance between the rights of the accused, justice to victims and the need for protection of witnesses.

If terrorism remains a menace to life and security despite the normal provisions of law, the society might consider the author's proposal for POTA like legislations to deal with militant groups resorting to large-scale violence causing suffering of innocent people.

The scope of right to freedom of expression of men of the defence services is dealt with by the author in the final chapter of the book. Acting under the authority of Article 33 of the Constitution, the Central Government, under Section 21 of the Army Act, has restricted the exercise of fundamental rights by army persons.

There is prohibition in communicating to the media on "service information" and "service subject". According to the author such rigorous restrictions have discouraged the creative ability of service personnel. He argues for a review of the wide restriction imposed upon freedom of expression to enable them to enjoy fundamental rights in a meaningful manner.

The book is a welcome addition to legal literature and will generate thinking on the legal framework surrounding the defence services.


Recommended for you