"UNIFORM CODE OF MILITARY JUSTICE NEED OF THE DAY"
UNIFORM CODE OF MILITARY JUSTICE : NEED OF THE DAY Col Indra Sen Singh This paper deals with the basic differences which exist in the Army, Navy and Air Force Act and their impact on the functioning of joint commands. It also highlights the efforts which were undertaken to bring in a common code of military justice. The paper projects that unless we agree and create a Uniform code of Military Justice we as the Armed Forces will face problems when we enhance jointness and create joint organizations. Introduction separate codes of discipline. After independence, it was decided to have The aim of this article is to examine separate Commanders-in-Chief for each the need of a common Code for all the wing of the defence forces, each with its three Services. At present they are own HQs dealing directly with the Defence governed by separate disciplinary codes, Minister. Experiences of the Allied Nations i.e. the Army Act 1950, the Air Force Act - during the 2 nd World War, such as the 1950 and the Navy Act-1957. These United States, Canada and the United enactments trace their origin to British Kingdom, compelled them to amend their India and are by and far modelled on the laws and have a single code for all the then existing British laws. Originally, the three Services so that their rights and Army Act and the Air Force Act, which liabilities may be readily ascertained by came into force simultaneously on 22 Jul referring to a single, rather than multiple, 1950, contained identical provisions statute. barring a few exceptions. The Army Act 1950 has since undergone several In India, the Government of the day significant amendments, but the Air Force in its wisdom chose to continue to govern Act 1950 has more or less remained static. the three Services by separate codes of The Navy Act 1957, on the other hand, discipline as it was then thought that each contains distinctly different provisions than of the Services should be allowed to those in the Army Act 1950 and the Air develop in its own way. However, it was Force Act 1950. soon realized that this necessary separation should not be pushed too far. The Historical Backdrop A civil servant who was Secretary in the new Ministry has in his Kale Memorial Until India gained independence, lecture of 1983 described how, “While the there was only one ‘Commander-in-Chief’ Government was convinced of the for all the three Services. Although bulk undoubted importance of allowing the of the defence forces of British India three Services to develop, each in its comprised of the Army (strength of Indian own way in matters which are distinctly Air Force and the Indian Navy being very its own, it was no less convinced that small), yet following the British tradition, this necessary separation should not the three Services were governed by by pushed too far, for matters in which The Purple Pages 92 A HQ IDS Journal common organization was possible and the idea was permanently shelved. could obviously be dealt with efficiency and economy if so organized, and what Joint Services Command and is more important, would in the process Integration of Service Headquarters assist in building up a feeling of the with the MoD essential oneness of the defence organizations”. War time experiences of some of the Western countries, particularly the United The linking of the Services through States underlines the importance of joint common organizations was progressively operations under a unified command. achieved through the setting up of such Even in India it is widely believed that the tri-services institutions as the National unified command structure, put in place Defence Academy (NDA), Defence in the Eastern theatre during the Services Staff College (DSSC) etc, to train Bangladesh liberation war, played a officers belonging to all the three Services. crucial role in the victory of the Indian However, essential common Services Armed Forces. The need of integration of such as the medical organization and the the Services Headquarters with the medical cadres was kept centrally under Ministry of Defence (MoD) to improve the the ministry. The Govt also established Services’ efficiency was thought by the and maintained under the control of the Govt to be necessary for the first time in Defence Ministry the manufacturing the year 1991, but no steps were taken in enterprises, such as those for the that direction until the year 1999. manufacture of military hardware, aircraft, Experience of the Kargil War in 1999 again naval shipbuilding and dockyards and brought the issue into sharp forces. The factories for a wide range of military Review Committee was set up by the Govt supplies. It also provided a common in the aftermath of the Kargil War organization for research and recommended integration of the Service development. With this background, in the HQs with the MoD and creation of the post year 1965, following the pattern set up by of Chief of Defence Staff (CDS). the United States, Canada and the United Subsequently, the Govt approved the Kingdom, the Govt of India too thought of setting up of four task forces. Raising of the necessity to have a uniform Armed unified command structures such as the Forces code for the three Services. Andaman Nicobar Command, Strategic Accordingly, a high power committee Task Force, as also the creation of the post comprising of a Joint Secretary (the of ‘Chief of Integrated Staff to Chairman Chairman) in the MOD and a COSC’ (CISC), were right steps in the representative each of the Ministry of Law same direction. and Judge Advocate General branch of the three Services, was set up to draft out Basic Differences amongst the Army a common code to be uniformly applicable Act, Air Force Act and the Navy Act to all the Services. The committee so set up did present a draft of the desired Major areas of difference between uniform code but the same could not the Army Act and the Air Force Act may become a reality due to lack of consensus be enumerated as under:- on certain issues within the three Services The Purple Pages 93 A HQ IDS Journal Persons subject to the Army Army and Air Force, as also because the Act now enjoy the protection of the pre-existing Naval Discipline Act contained Constitutional guarantee of ‘double different provisions than those applicable jeopardy’, which means that a to the Army and Air Force personnel. About person once tried under the Army the same time, the British Government had Act cannot be subsequently retried appointed a special committee (Pilcher by a civil (criminal) court. But this Committee) to revise the British Naval constitutional protection is not yet Code. It was therefore decided to wait for available to Air Force Personnel. the Pilcher Committee report before the new Naval Act could be enacted. The Under the Army Act, the Navy Act was finally passed by the Indian accused has the privilege of being Parliament in 1957, wherein most of the a competent witness in his own case provisions of the British Naval Code were which benefit is not available to an incorporated. The Act was last amended accused under the Air Force Act. in 2005 whereby most of the progressive The Army Act and the Air and liberal amendments carried out in the Force Act lay down different Army Act in 1992-93 were imbibed. Yet parameters for computing the period differences remain. Some of the of limitation for trial under the said significant differences between the Navy Acts. Act vis-à-vis the Army Act and the Air The benefit of ‘set-off’ in Force Act are as follows :- respect of the pre-trial and under- trial custody period, as available The Navy Act, like the Air under the Army Act, is not available Force Act, contains no provisions to Air Force personnel. relating to summary court martial, although under the Navy Act a Provisions’ relating to person may be summarily punished Summary Court Martial (SCM), for upto three months of rigorous which is unique to the Army Act, imprisonment, which is limited to 28 does not exist in the Air Force Act days under the Army Act and the Air (or even in the Navy Act for that Force Act. A person may also matter). be summarily dismissed under the A court-martial held under the Navy Act, but not so under the Air Army Act is obliged to record a Force/ Army Act. reasoned finding but no such Under the Navy Act, an obligation exists for a court martial accused person may elect to be tried held under the Air Force Act. by the Judge Advocate alone, but no so under the Army Act or the Air The Navy Act, 1957 is slightly more Force Act. progressive than the Army Act and the Air Force Act. After independence, A court-martial credit under consolidation and passage of the Navy Act the Navy Act, unlike the Army/ Air was kept on hold because it was thought Force Act, requires no confirmation that the conditions of service in the Navy before it may be put into effect, significantly differed from those in the except that a sentence of RI The Purple Pages 94 A HQ IDS Journal awarded to an officer needs to be Legal problems facing the Joint approved by the Chief of Naval staff Command Structure (CNS) before execution. As noted hereinabove, the three A finding of ‘not guilty’ arrived Services are presently governed by three at by a court-martial held under the separate laws, each varying with one Navy Act, unlike the Army or Air another in significant measures. Even Force law, cannot be sent for where there is a similarity of the revision, or otherwise interfered provisions amongst the three Acts, at with, howsoever perverse it may be. times each is interpreted and applied A court-martial under the Navy differently by the respective Service. In Act, unlike the Army Act, is not a tri-service command set-up e.g. bound to record a reasoned finding. Andaman and Nicobar Command, the The Navy Act permits commanders have to refer to three personal hearing to the accused separate statues while dealing with before the JAG, Navy during the disciplinary and other legal cases. The judicial review of the court-martial anomalous provisions of the three Acts proceedings. The Army and the Air potentially provide a huge scope for Force Act have no such provision. discrimination amongst members of the three Services as they are liable to be A court-martial under the Navy dealt with differently even under the similar Act has to have majority of its facts & circumstances. This bound to lead members (including the Presiding to a feeling of injustice and Officer) drawn from the ‘Executive discontentment. Besides, an officer of a Branch’ of the Navy but no such particular service would normally have no stipulation exists under the Army or knowledge of, as he received no formal the Air Force Act. training in, the law applicable to the other Unlike the Army and the Air two Services. Force Act, the Naval law does not grant reciprocal mutual disciplinary The problem does not end here. In powers to the Army and the Air a tri-services command scenario, a Naval Force Officers over the Naval Officer may be required to exercise personnel who may be, for the time disciplinary powers in respect of Air Force being, serving under the com- and Army personnel and the vice-versa. mand of such Army/Air Force officer. Though the Army Act and Air Force Act empower a naval officer to exercise All court-martial proceedings disciplinary powers over the Air Force / under the Navy Act, unlike the Army/ Army personnel placed under his Air Force Act, are reviewed by the command, but the Navy Act does not CNS and lower formation permit the Army/Air Force officers to commanders have no power of exercise full disciplinary powers over review. the Naval personnel. Even the Army Act, or the Air Force act, which empowers the The Purple Pages 95 A HQ IDS Journal inter service mutual command over a 8 has no application for the tri-services person belonging to the Army/Air Force, command scenario. In other words, even does so only under the specified an Army Officer, leave alone Naval or Air circumstances as enumerated below :- Force officer, for the time being in command of a tri-services formation/ When he (Army/Air Force establishment, cannot be delegated the person personnel] is on active disciplinary powers under the Army Act. service; Similar is the position under the Air Force Act as well. When he is being conveyed on any vessel or aircraft employed No Legal Recognition to CISC/CDS as a transport or troop ship; When he is serving in or is a The contemplated appointment of patient in any hospital or medical ‘Chief of Defence Staff’ (CDS), or that of unit; the ‘Chief of Integrated Staff to Chairman When an emergency exists COSC’ CISC as presently in existence, and a declaration is made by a has no statutory recognition either under competent authority permitting the Army, the Navy or the Air Force Act. exercise of power of mutual Consequently the CISC/ CDS have no command. legal role to play in the administration of justice in the three Services. The lack of When the Central Govern- legal/statutory sanctity for the post of ment by special order declares that CISC/CDS is bound to create legal it is necessary for officers of the complications in times to come. other two Services to exercise the Therefore, it is necessary to clothe the power of mutual command. appointment of CISC/CDS with enabling statutory provisions which none of the Section 8 of the Army Act provides three Acts presently caters for. for delegation of disciplinary powers to certain ‘officers’ not designated as Bde/ Situation Arising Out of the Sub Area/Div/Area/Corps/Army Contemplated ‘Armed Forces Tribunal’ Commanders. The term ‘officer’ as defined under the Army Act sec 3 (XVIII), Following the recommendations of would include officers of the Air Force and the Honourable Supreme Court in the case the Navy only if the conditions specified of PPS Bedi versus Union of India., the above have been met. Further, the Central Govt has already accepted the delegation of disciplinary powers under joint proposal of the three Services to set this provision can be done only when the up an Armed Forces Tribunal to primarily officer is commanding a ‘military’ exercise appellate jurisdiction over the organization and not otherwise. The term courts-martial held under the Army, the ‘military’ has been used in the Army Act, Navy and the Air Force Act. The draft ‘Bill’ as also in the Air Force Act and the Navy in this regard, as approved by the Cabinet Act, as synonymous with ‘the Army’, and Committee, has been sent to the Standing does not include the Navy and the Air Committee of Parliament for scrutiny. The Force. This implies that Army Act Section ‘Bill’ is likely to be introduced in the The Purple Pages 96 A HQ IDS Journal parliament and is expected to become a circulated to the other two Services for law soon. Members of the proposed their approval. However, the JAG-Navy Armed Forces Tribunal are to be drawn expressed reservations to certain from amongst the retired service officers provisions of the draft and no consensus and Supreme Court/High Court judges. It could be reached. Subsequently, as would be highly inexpedient for members desired by the JAG-Army, another daft of the Tribunal to refer to three different code titled ‘Tri-Services Bill – 2002’, Acts and the Rules/Regulations made meant only for the tri-services situations, there under while deciding the appeals. was prepared in consultation with the representatives of the Navy and Air Force, Steps Recently Taken Towards Uniform but no consensus could be reached even Code on this draft code. Besides the ‘Chief of Integrated Staff Conclusion to Chairman COSC’ (CISC), the Andaman & Nicobar (ANC) and Strategic Force Jointness and integration of the Command (SFC), there are a number of three Services being the ‘mantra’ of the other establishments such as the National day, there is no reason why they should Defence Academy (NDA, Defence be governed by separate laws. This is Services Staff College (DSSC), National even more surprising that the countries Defence College (NDC), College of from where our Services laws have been Defence Management (CDM) etc which adopted, have already achieved the are presently functioning as tri-services uniformity of the law for their own Services. establishments. These establishments are A common code for all the three already facing legal complications in Services, besides being expedient and effectively dealing with disciplinary cases easy to refer to, will help to foster a pertaining to the personnel posted to or feeling of one-ness and dispel the working therein. Many more such tri- notion of separatism or discrimination. services formations/establishments are Objections of the individual Services likely to come up in time to come. A projected on the previous draft uniform committee was set up in the year 2002 code and their specific requirements have under the chairmanship of the JAG-Army been adequately addressed in the new to address the legal issues arising out of draft titled ‘Uniform code of Military tri-services situation. This author, who Justice Bill, 2002. This needs to be re- was then posted at the Army activated and reconsidered. Reservations Headquarters, was tasked by the JAG- and objections of the individual Services, Army to put up a draft uniform code if any, on specific provisions of the new acceptable to all the three Services. A draft may be sorted out and a consensus comprehensive draft titled ‘The Uniform reached through discussions at Code of Military Justice Bill, 2002”, was appropriate levels. accordingly put up and the same was Col Indra Sen Singh is the Deputy Advocate General of a Corps in the Eastern Theatre. He has had a varied experience in the Judge Advocate General’s Branch including a tenure at Army HQs. The Purple Pages 97 A HQ IDS Journal