Even from afar, it is easy to see that Indian military justice is entering a new phase. What are the pertinent facts, and where should the path lead?
The most salient fact has two aspects. On the one hand, Indian military justice – the body of criminal and disciplinary law that seeks to ensure good order and discipline and thereby contribute to national security, has been remarkably stable. This is good because it means that Indian military, air and naval personnel, both subordinates and officers up and down the chain of command, will know the rules of the road and what is expected of them. A less desirable aspect of stability is that sensible ideas that reflect experience both in India and elsewhere may be overlooked or, worse yet, encounter resistance.
That there has been significant change cannot be denied. Of particular note is the creation of the Armed Forces Tribunal (AFT). It took decades from the time the Supreme Court recommended creation of some kind of an appellate court for military verdicts and the time legislation was enacted in 2007. The AFT has already made its mark and one must think the Ministry of Defense and armed forces have taken due note of its existence and, more importantly, its work product. Time and again the AFT has handed down decisions overturning personnel actions and occasionally courts-martial for reasons that seem so perfectly obvious that one cannot help but wonder why the matter was not adjusted before it reached the tribunal.
The AFT has only been in operation for a few years, so its jurisprudence is far from fully fleshed out. Still, some suggestions can be made that could foster increased public confidence in the administration of military justice.
First, attention could usefully be paid to whether the AFT would benefit from greater guarantees of independence. Countries around the world have adopted a remarkable variety of frameworks for providing appellate review of military cases. Some rely on a purpose-built court, staffed by civilian judges; others assign civilian judges of the regular higher courts to the military court by rotation as part of their judicial duties; yet others have entirely military appellate courts; some have a mixture of military and civilian judges, with some of the military judges being lawyers, some retirees, and every combination.
Questions have recently been raised about the arrangements governing the AFT. Should it be constituted as it presently is, with a blend of civilian jurists who sit full-time and retired senior military officers, or would a different staffing concept be an improvement? It can be argued that since the function performed is a legal one, only those with legal training should sit, and that the provision of any necessary special background information on the military context of a case is the job not of the judges but of the attorneys who appear before them.
Caseload is another issue. Indian courts have long been clogged with challenges to military personnel and military justice cases. Given that, and the fact that full justice is tremendously hard to achieve long years after the underlying circumstances, it is surprising that not all of the AFT judgeships have been filled even now.
Equally concerning is the fact that the defense ministry is responsible for filling the vacancies. A recent decision seems to require that the AFT be moved over to the Ministry of Law and Justice. That is certainly an improvement over having it located under the very department that is a party to every single case. The current arrangement is self-defeating if one of the goals is to assure serving and former military personnel that they will get a fair shake. Even better, however, than simply shifting the AFT to the law ministry would be to establish a true court, totally outside the executive branch of government. Only in this way, I would suggest, can public confidence be cemented.
Related to this is the need to clarify appellate review of the AFT’s decisions. The legislation ought to make completely clear what the remedy is for litigants who believe the AFT has erred in a decision. Should such cases go directly to the Supreme Court, or should the parties have to approach the High Court? How this issue is most sensibly resolved is a function over the overall structure of the Indian judicial system, but whatever the correct answer, it should be made clear. Additional tiers in the appellate structure can detract from, rather than, improve public confidence if the result is simply further expense and delay. If anything, the need for prompt justice is even more urgent in the military setting than in civilian life – but that promptness should not be achieved at the expense of litigants’ rights.
Indians concerned with the administration of military justice might want to consider two further steps, one of which requires legislation and one of which does not. The statutes governing military justice remain service specific and do not take into account the many new insights provided by accelerating human rights developments and the practice of democratic states around the globe in recent decades. One significant trend is the transfer of the power to decide who shall be criminally charged from commanders to a director of military or service prosecutions. Numerous common law democracies have moved in this direction, with no discernible adverse impact on good order and discipline.
A second development that Indian policy makers might wish to explore is creating the office of military judge, so that courts-martial would more closely resemble the courts with which Indians are very familiar and which have earned a reputation for independence.
A step that would not require government action would be creation of an Indian Institute of Military Justice, bringing together practitioners and law teachers committed to improving the administration of justice within the armed forces. I helped to found such an entity over twenty years ago in the United States. It has contributed significantly to improved public understanding of military justice as well as to a variety of worthwhile changes, with more to come. It is critical that such an organization – a real “NGO” – be truly independent of government. An Indian Institute would be a very useful partner to the AFT Bar Association, which already exists but whose membership and functions are necessarily limited.
Military justice is of concern in any democracy. Where and how the boundary should be drawn between the military and civilian spheres can be a political and social fault line. No system is perfect or beyond improvement. A nation that casts as long a shadow as India does, can and should be a role model for other democracies, and restless in its search for ways to improve its military justice system.