0
0
What is Military Law?
Military justice (also military law) is the legal system (bodies of law and procedure) that governs the conduct of the active-duty personnel of the armed forces of a country. In some nation-states, civil law and military law are distinct bodies of law, which respectively govern the conduct of civil society and the conduct of the armed forces; each body of law has specific judicial procedures to enforce the law.
Military justice is different and distinct from martial law, which is the imposition of direct military authority upon a civilian population, in place of the civilian legal system of law that authorised the government to rule. Martial law is declared in times of emergency, civil unrest, and war, but its imposition can be restricted or even banned by civil law.
Military Laws and the Constitution of India
The rules governing the Indian military are mainly enumerated in the Constitution of India.
Article 33 permits the parliament by law to restrict or abrogate any of the fundamental rights of military men, with a view to maintain discipline and ensure proper discharge of their duties.
Article 136 and 227 restricts and curtails the jurisdiction of higher judiciary, over orders findings and sentences of court-martial.
Armed Forces (Special Powers) Act
Armed Forces (Special Powers) Act (AFSPA) is a Parliamentary act that grants special powers to the Indian Armed Forces and the state and paramilitary forces in areas classified as “disturbed areas”.
The objective to implement the AFSPA Act is to maintain law and order in disturbed areas.
AFSPA is invoked when a case of militancy or insurgency takes place and the territorial integrity of India is at risk.
Military Justice in India?
India has its own Army Act, the Air Force Act, and the Navy Act. These laws define the statutory provisions as being applicable to men and ladies in uniform. Of these three Acts are often found on the official website on search.
In India too, there are certain Para-military forces that have laws almost like people who apply to defense services. This includes the Border private security force Act, the Coast Guard Act, the Border police Act of Indo-Tibet and the Assam Rifles Act. All of those Acts are inspired by the Military Act.
The original motive with which the British developed military justice was to enable discipline in Indians after the Mutiny of 1857. The main objective for the Indian Army Act, 1950, the Navy Act, 1957 and the Air Force Act,1950. Before being adopted by independent India, only a couple of changes were made to British laws.
Defects in the Indian Military System
No Bail provision
An arrested military official has no provision related to bail. The superior of military officials may grant the bail but it depends on their authority. The Supreme Court has given various standard principles upon which bail may be granted. However, providing bail depends on someone’s authority, which looks unreasonable.
Double jeopardy
Under the Indian constitution Article 20(2) enriches constitutional protection against prosecution. It is available under the military justice system but this defence is not available before a civil court to stop a second trial on the same offence.
No right of appeal
There is no arrangement for the convicted to appeal to a higher court. The Military Act expresses that a person who sees himself as grieved by finding or sentence of a court-military may file a request with the central government, the head of the military, or any recommended superior official in charge of the one that confirmed the finding or sentence, and accordingly the central government, the head of the military or the other official may pass such requests because the case could likewise be (Section 164(2) of the Military Act).
