The long-awaited appointment of a Chief of Defence Staff is a milestone in India’s military journey. The inception of the position of the CDS and the overall concept of ‘jointness’, raises a host of ancillary issues — some large and some small. One of the most important ones concerns the administration of justice in the Indian defence services. The opportunity presents itself for deep reform on this aspect and because these opportunities come along fairly rarely, the establishment must seize this opportunity and make the most of it.
We offer a few talking points and suggestions.
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A single disciplinary code
To begin, it is time to abandon the separate disciplinary codes for defence services. Without calling into question the value of esprit de corps and loyalty to one’s own branch, it is impossible to justify having separate and inevitably non-uniform disciplinary codes which, in most part, constitute criminal laws, especially in the era of joint operability.
The separate codes currently in force are a holdover from the British era. Other countries whose legal systems have common law roots have moved in the direction of a single disciplinary system. The United States made the change in 1951, when the Uniform Code of Military Justice superseded the Articles of War (for the Army and Air Force), the Articles for the Government of the Navy (for the Navy and Marine Corps), and the Disciplinary Laws of the Coast Guard. Australia did the same in 1982, and Canada in 1950. Tellingly, the United Kingdom itself moved to a single statute, the Armed Forces Act, in 2006. There might be some churning at the beginning with progressive reform but experience teaches that national military justice systems self-adjust in time.
Why make such a change? For one thing, it is critically needed to foster greater confidence in the administration of justice amongst service personnel in a ‘joint’ milieu. Arbitrary differences between service branches can contribute to an impression that one branch is less tough on certain kinds of misconduct than the others, besides resulting in chaos and confusion when serving side by side. Also, since the joint engagement of the Indian defence forces is bound to exponentially increase, it makes no sense for personnel who serve together to be amenable to disparate sanctions and procedures. A single statute will facilitate economising and harmonising the legal processes as well as training of uniformed lawyers and infrastructure. There is always the scope of having specific clauses within the common code to cater to certain service peculiarities, if so desired, but these should be kept to the absolute minimum.
Though a political judgment call, there are also strong reasons to bite the bullet and establish a single unified military justice system rather than just a common code. A unified system would provide fairness, and could iron out the creases of service-by-service discrepancies because of traditions and potent institutional centrifugal forces. India, in fact, already took the first step in this direction when it created the Armed Forces Tribunal, which is a unified appellate forum for courts-martial as well as some non-criminal personnel matters for all three defence services.
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A military justice overhaul
But as important as it is, simply enacting a single disciplinary statute is not enough. The government should use the occasion to enact a thorough modernisation of military justice in India. Being the world’s largest democracy, and a vibrant one at that, with a military committed to democratic values, the country is known for its steadfast principles of separation of powers and a robust judicial system that produces important decisions of high precedential value. The current military justice system may not be oppressive but it does not meet contemporary standards or best practices, mostly for the reason that serious thought has not gone into military justice reform. Meanwhile, other nations, including the United Kingdom from which India borrowed its military justice framework, have initiated major changes over the years.
There are even some basic issues that cry out for reform. The primary one is the need for an independent prosecutorial authority or a Director of Prosecutions without any link with the chain of command. A proper military trial bench should be established with the introduction of military trial judges. They should be afforded the protection of substantially fixed terms in office and from removal and command influence.
A standing court martial trial system with permanent infrastructure rather than ad hoc juries is also the need of the hour. Commanders should no longer have the power to decide who gets prosecuted for what. That power should be transferred to the legally-trained independent prosecutors. This is a step that numerous common-law democracies have taken, including the UK, Canada, Australia, New Zealand, Ireland, South Africa, and Israel, with no adverse effect on military readiness or discipline. On the contrary, fairness has encouraged discipline. The armed forces are resisting this change in the United States, but there is every reason to believe the Congress, focused on the persistence of sexual assault and harassment in the ranks, will shift to a lawyer-centric model in place of the commander-centric model the country inherited from George III.
There is really no need for commanders to be reviewing and approving or confirming the verdicts of courts-martial. If clemency is warranted, that should be done by a separate process, and if legal errors have occurred, they should be addressed by appellate fora.
Overall, the entire system and appellate process must meet the standards of Article 14 of the International Covenant on Civil and Political Rights, 1966, also applicable to the military, which provides that every person shall be entitled to a fair and public hearing by a “competent, independent and impartial” body. These are indeed the golden keywords for any justice system- competent, independent and impartial!
To reiterate, nations with common law traditions and military systems similar to India have initiated open-minded reform, but much was also forced by judicial intervention. Two landmark decisions — R vs Généreux (1992) decided by the Supreme Court of Canada and Findlay vs The United Kingdom (1997) pronounced by the European Court of Human Rights — come to mind that address and mirror the areas of concerns under the Indian system. However, rather than waiting for courts, the Government of India has presented itself with a golden opportunity for reform.
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Reform already initiated
It would come as a surprise to many readers and even members of the official establishment that the late Manohar Parrikar, former defence minister in 2015, much before the creation of the CDS, had, on the Prime Minister’s approval, constituted a Committee of Experts for examining Service and Pension matters and systems of Redressal of Grievances (of which one of us—Navdeep Singh—was a Member). He had also, in perhaps a visionary move, requested the Committee to closely look at Military Justice Reform.
In Chapter 5 of the Report, the Committee made a slew of recommendations on the subject, one of which was to institute a High-Level Study Group to kickstart the process of reform. The first point of this recommendation was to examine the desirability of a Common Code. The following extract from the Committee is worth reproducing:
“The Committee recommends that a high-level Study Group on Military Justice be directed to be constituted by the Ministry of Defence with at least 7 Members, that is, the three Judge Advocates General, one officer of the rank of Lt Gen or equivalent to be nominated by the Chiefs of Staff Committee (COSC), one officer of the rank of Joint Secretary/Additional Secretary to Govt of India to be nominated by the Defence Secretary and two law qualified independent experts not being former or current government counsel or officers. The Study Group may render its report within a period of 6 months which should be followed by time-bound initiation of consultations with the Ministry of Law & Justice to set the legislative process in motion. The Study Group must not shy away from interacting with institutions concerned with judicial reform or research or seeking views from the public. The Study Group, besides other issues, inter alia, must definitely consider the following:
(a) The desirability of introducing a common code for all Services with service specific offences and a cadre of proper independent Military Judges rather than ad hoc juries with Members who are not legally or judicially trained.
(b) Introducing provisions making military justice independent and totally insulted from influence, with Courts Martial not functioning in the line of perceivably interested parties/authorities.
(c) The desirability of retaining the provisions of SCM in this time and age and the desirability of rationalizing the types and kinds of Courts Martial. The system of Summary punishments in the Navy may also be analysed.
(d) The ways of strengthening of the JAG cadre, its expansion to cater to provisioning of at least one officer till a Brigade level formation, or its commonality amongst the three services.
(e) Introduction of permanent Standing Courts Martial in the statute.
(f) Desirability of bifurcating the JAG Branch into one performing traditional functions and the other concerning prosecution by formulation of a ‘Department of Military Prosecution’ or trifurcating it to provide for proper military Judges in addition, as prevalent in many democracies.”
This recommendation was accepted in principle by the defence minister on 8 August 2016 and was to be implemented within 45 days, but seems to have gotten lost in the labyrinth of files.
The officialdom, therefore, has everything on a silver platter, including an existing order from the political executive to trigger the process. Of course, minor attempts at comparatively junior levels have been made to study the commonality of justice, but this rocky road cannot be traversed unless the study group is sufficiently senior, independent, progressive and backed by political will, as observed by the Committee.
The creation of a CDS is an important step in the continuing modernisation of India’s defence setup, but more often than not, as is the case in most defence reforms, the areas other than strategy and operations get ignored by default, if not by design. The military is much more than warfare, and its legal dimension should not be neglected. This golden opportunity must be grabbed with both hands.
Eugene R Fidell is President Emeritus of the National Institute of Military Justice and teaches at the NYU Law School. He has taught at Yale Law School in the past. He is also the former Chair of the Committee on Military Justice of the International Society for Military Law and the Law of War.
Navdeep Singh is a practising lawyer at the Punjab & Haryana High Court and a former member of the Committee of Experts constituted by the Government to reduce litigation in the Defence Ministry and reform the system of Redressal of Grievances. He is also a Member of the International Society for Military Law and the Law of War.
Views are personal.
(Edited by Srinjoy Dey)