Why India must get rid of

separate disciplinary
codes for Army, Navy &
Air Force
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.

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. 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.

A military justice overhauls

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

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.