Home / Opinion / Time to court martial the court martial?

New Delhi: As far as bad summers go, Kashmir has had more than its fair share. But the one in 2010 when incessant stone pelting brought the valley to a standstill for almost four months would rank high up, especially since it followed a relatively peaceful time. Almost five years later, justice in the case that sparked off the violent Machil agitation case was served, albeit partly.

Six army men, including a colonel and a captain were sentenced to life imprisonment for the cold-blooded killing of three local youths passed off as militants. According to The Hindu, this is perhaps the first time that Army personnel are being punished for human rights abuse in the valley. But how does the Army go about deciding punishment for its men, whether it is for this act or even for minor offences?

In countries across the world, including India, forces submit men to their own law as laid down in their military laws. Military personnel in India are tried under the army, navy or air force law if the crimes committed fall under three different criterion; either while in active service, at any place outside India or at a notified frontier post or against any person subject to the law. The military law’s roster of punishments range from reprimand to death penalty.

“They (military personnel) can be tried by civil (criminal) courts if they commit serious crimes like rape, murder and culpable homicide not amounting to murder," explains retired wing commander U.C. Jha who has authored several books on the subject of military law. However, if the offence is in relation to a civilian, then military courts have no jurisdiction.

“Machil killings were an act against civilians but the area of operation was active service and hence the army’s court martial," explains retired major general Neelendra Kumar, who was judge advocate general (JAG) of the Indian Army during 2001-08. JAG is the legal and judicial chief of the Army.

As Kumar says, “it’s a substantial and procedural law that takes care of everyone from the sepoy to the chief." As is the case with much of India’s Penal Code, even the Military Act has remained by and large unchanged from its colonial days. The proceedings, for instance, are recorded in English. The majority of the troops and junior commissioned officers are not fluent in the language, making their access to case papers difficult. During the course of the court martial, the accused is denied bail and not even allowed to meet his family, provisions that are available in the trial stage in civil courts.

A trial in the services is usually referred to as a court martial and the laws for conducting this are as those laid out in the Acts of the three service arms. Before a case goes to court martial, a court of inquiry may be conducted in which the evidence is examined. This is done under the command of a senior officer known as the convening authority.

“A court martial is a temporary body assumed by a ...senior military officer after looking into the charges against an accused solider," writes Sailesh Rai of Amnesty International in a blog on the subject. A court martial usually consists of five members, the prosecutor and a lawyer. An officer of JAG is deputed as judge advocate, a legal necessity. Interestingly, none of the officers who constitute a court martial save the officer from JAG are trained in law. They are simply men in uniform.

There are, however, certain rank protocols to be followed when convening a court martial with the lowest rank of a presiding officer being a full colonel. “If the accused is an officer, then members have to be of that rank or above," explains Kumar. The accused is allowed a “suitable counsel" and the trial is conducted with a proper examination of proof and witnesses. The quantum of punishment awarded by the court martial has to be signed upon by the convening officer who also has the power to send back the sentence if not satisfied. A trial can be spread over some months with the court martial being convened from time to time.

“The accused has the right to go to the Armed Forces Tribunal if he is not happy with the sentence. And in case he is not happy with the ruling of the AFT also, he can approach the Supreme Court," says Kumar.

The problems with this system, experts argue, are manifold. First and foremost, none of the officers are legally qualified. Secondly, since the convening officer is of the highest rank, there is the question of whether the other officers who constitute the court martial can act in an independent manner. “Most army officers will tell you that the rank of the convening officer plays no role in determining the outcome. The reason why a board of odd numbers (usually 5) is constituted is so that if there is dissent, then the ayes gain sway over the nays. The officer who is not happy or satisfied is required to attach a dissent note," explains a serving brigadier who has served on a court martial.

But Jha says that officers cannot be clear of “command influence and cannot be completely independent while exercising their judgment. " In some cases before court martial, a court of inquiry is set up in which it is determined whether the evidence supports the charges. The convening officer of a court of inquiry appoints the court martial’s members and has the final say in the sentence which points to a clear conflict of interest.

According to Rai’s blog post, the European Court has ruled that service officers’ lack of legal qualification or experience makes it impossible for them to act in an independent or impartial manner. But Jha argues that in a court martial, the legal qualification of its members is not necessary. “In most court martials, members may not be law-qualified. However, for a general court martial, a JAG must be detailed," explains Jha. Interestingly, JAG’s presence, according to Jha, is not necessary in a summary general court martial which can award death sentences. There is also no criterion for appointing officers. It is, as Jha explains, the prerogative of the convening officer.

When it comes to disciplinary action within its ranks, perhaps the services are justified in sticking to their laws, but in cases like Machil or involving other allegations of human rights violations, the forces need to be more open. Making the system more open so that the forces are not suspected of shielding the accused would be the first step in reforms in this direction. Jha suggests making court martial proceedings available to the public.

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