Impartiality of Military Courts Impartiality of Military Courts

Maj Gen (Prof) Nilendra KumarMaj Gen (Prof) Nilendra KumarDirectorDirector

Amity Law School, Noida Amity Law School, Noida

XXth Congress XXth Congress of the of the

International Society forInternational Society forMilitary Law and the Law of WarMilitary Law and the Law of War

Friday, 17 April 2015Friday, 17 April 2015PraguePrague

The meaning of the term “Impartiality”

A study in the context of military law in

India.

IMPARTIALITY IMPARTIALITY

1.1. What does it mean? What does it mean? 2.2. What does it imply?What does it imply?3.3. What is notion of an impartial court?What is notion of an impartial court?4. 4. Whose duty is it to ensure an Whose duty is it to ensure an

impartial trial? impartial trial? 5.5. Statutory and procedural base to Statutory and procedural base to

achieve neutrality.achieve neutrality.

Impartiality means not partial, or biased, Impartiality means not partial, or biased, un prejudicedun prejudiced

It means not favouring one party more It means not favouring one party more than anotherthan another

Impartial implies fair, just , neutral and Impartial implies fair, just , neutral and uninterested.uninterested.

An impartial military court would not be An impartial military court would not be tilted tilted

either towards the prosecutor or the either towards the prosecutor or the accused.accused.

How is impartiality inbuilt in the system?

MODE OF INCORPORATIONMODE OF INCORPORATION

1. Constitutional Base 1. Constitutional Base 2. Statutory Provisions 2. Statutory Provisions 3. Procedural safeguards 3. Procedural safeguards

Relevant DocumentsRelevant Documents

1.1. Constitution of India Constitution of India 2.2. Army Act, 1950Army Act, 19503.3. The Armed Forces Tribunal Act, The Armed Forces Tribunal Act, 200720074.4. The Army Rules, 1954The Army Rules, 1954

Not being Army centric !

The position under the Navy Act and the Air Force Act is similar.

EQUALITY OF ‘STATUS AND OF EQUALITY OF ‘STATUS AND OF OPPORTUNITYOPPORTUNITY’’

IN THE CONTEXT OF A MILITARY TRIAL IN THE CONTEXT OF A MILITARY TRIAL WOULD EXTEND TOWOULD EXTEND TO

Status (rank & post) of the accused. Status as regards accused vis a vis

witness/ authorities. Status as regards prosecutor and

defending officer. Opportunity to defend and address the

court.

CONSTITUTION OF INDIACONSTITUTION OF INDIA

Further it secures to all its citizens justice social, economic and political.

This assertion too would exclude any trace of partiality.

A court which is impartial would A court which is impartial would be open minded and even handed.be open minded and even handed.

STATUTORY PROVISIONSSTATUTORY PROVISIONS

Army Act and Army Rules provisions clearly articulate and demonstrate how the military justice is to be administered in an impartial manner.

Impartiality of the court martial is enshrined Impartiality of the court martial is enshrined and facilitated by providing the accused a and facilitated by providing the accused a right to challenge whereby he can object to right to challenge whereby he can object to be tried by any officer sitting on the court be tried by any officer sitting on the court martial.martial.

Army Act Section 130Army Act Section 130read with Army Rule 44read with Army Rule 44

NO ACCOMMODATION NO ACCOMMODATION FOR PARTIALITY FOR PARTIALITY

An officer who would not be impartial is An officer who would not be impartial is disqualified form serving on a court disqualified form serving on a court martial.martial.

Army Rule 39(2) read with Army Rule 39(2) read with Rule 42(1)(c) Rule 42(1)(c)

A few obvious officials or persons are kept

away from sitting as members.

DISQUALIFICATIONS DISQUALIFICATIONS Extend toExtend to1.1. Convening officerConvening officer2.2. Prosecutor / prosecution witness Prosecutor / prosecution witness 3.3. Investigating officer or officer who Investigating officer or officer who recorded the summary of vidence recorded the summary of vidence or a member of a previous court or a member of a previous court martial martial 4.4. CO of the accusedCO of the accused5.5. One who has a personal interest One who has a personal interest in the case Army Rule 39(2)in the case Army Rule 39(2)

Merely providing these stipulations may not be adequate !

How is compliance achieved?

Whose duty and responsibility is it to ensure impartiality at the trial?

Such a duty is cast upon :-

1. Confirming and superior authorities2. Convening authority3. Presiding officer of the CM4. Member of the CM5. Judge Advocate

Responsibility of Presiding officer Responsibility of Presiding officer

1.1. Conduct of trial in proper order Conduct of trial in proper order and and befitting a court of justice.befitting a court of justice.2.2. To see that the accused has a fair To see that the accused has a fair trial. trial.

Army Rule 76Army Rule 76

The two obligations have to co-exist.

The members of the court are formally

cautioned to discharge their duties in an

impartial manner.

This is evident from the wording of the oath/ affirmation administered.

Oath/affirmation by members of the Court Oath/affirmation by members of the Court

“I will duly administer justice without “I will duly administer justice without partiality, favour or affection.”partiality, favour or affection.”

Army Rule 45 Army Rule 45

Mechanism to achieveMechanism to achieve

Within the court an impartial stance is maintained so that the views or opinion of senior members do not influence the mind of juniors. Voting is done in succession beginning with the member lowest in rank.

Army Rule 87(2)

Obligation upon the Judge Advocate.

In fulfilling his duties, the Judge Advocate must be careful to maintain an entirely impartial position.

Army Rule 105(8)

Court Martials to be public. Court Martials to be public. Army Rule 80A Army Rule 80A

Justice should not merely be done. It Justice should not merely be done. It must be seen to have been done.must be seen to have been done.

Court is not to be a mere silent spectator. What if efforts are made to subvert justice by prosecuting a false case?

False evidence is punishable with False evidence is punishable with imprisonment upto seven years. imprisonment upto seven years.

Army Act Section 60Army Act Section 60

Punishment Punishment

Causing any interference or Causing any interference or disturbance in the proceedings of court disturbance in the proceedings of court martial punishable by upto three years martial punishable by upto three years imprisonment. imprisonment.

Army Act Section 59(e) Army Act Section 59(e)

The handling of the case beyond the court should also be in an impartial manner.

Member or Prosecutor not to Member or Prosecutor not to confirm proceeding. confirm proceeding.

Army Rule 78Army Rule 78

The system and higher authorities are also duty bound to complete the process in an impartial manner.

The proceedings are liable to be annulled The proceedings are liable to be annulled on the ground that they are illegal or on the ground that they are illegal or

unjust. unjust.

Section 165Section 165

A major change introduced to bring in impartiality.

Court martial is required to record brief reasons in support of its findings.

Army Rule 62(1)

There are thus adequate provisions in military law, both substantive and procedural, to provide for trial of an offender in an impartial manner.

Despite countless persons having approached the Supreme Court against their conviction under military law, the Army Act provisions have been found to be fair and impartial.

Yet the system is not totally flawless

SUMMARY TRIALSUMMARY TRIAL

Improvements Needed

1. Accused is not entitled to legal help during a summary trial.

2. Law of evidence does not apply.

3. Proceedings are not open to public.

4. An accused has no right to demand his trial by a court martial except in one situation.

OTHER COURTS MARTIALOTHER COURTS MARTIALASPECTS IMPACTING IMPARTIALITYASPECTS IMPACTING IMPARTIALITY

1. The members are detailed by the Convening Authority.

2. Judge Advocate must only in GCM.

3. No right to accused to physically participate in consideration of pre and post confirmation petitions.

Lack of impartiality by the tribunals may result into miscarriage of justice, further leading to disgruntlement and frustration. It may turn soldiers into rebels. Such a contingency would be contrary to good governance, peace and tranquility.

RecommendationsRecommendations

1. ISML & LW may wish to undertake this study further to evolve a model law.

2. The model law may be linked to best practices.

CONCLUSION