Armed Forces Litigations

Legal Framework of Armed Forces' Litigations in India

• Three specific laws govern the Army, Navy, and Air Force in India:
  • The Army Act, 1950: This Act mainly forms the foundation, outlining the structure and functioning of court-martial, offenses, and punishments for service personnel in the Indian Army. The Army Rules, 1954 is different from the Army Act, 1950, and it is more focused on rules and regulations for duties with provisions for misconduct and offenses also.
  • The Air Force Act, 1950: Similar to the Army Act, this act governs the service personnel in the Indian Air Force with specific provisions. The Air Force Rules, 1969 has the legal framework in a similar manner as in the Army Rules, 1954, regulating Air Force personnel.
  • The Navy Act, 1957: Defines the legal framework for the Indian Navy. The act comprises rules and regulations for the commissions, appointments, and enrolments to the procedures of service, and provisions as to punishments in case of misconduct and offense. 
• Other Laws that Govern Armed Forces are described as under:
  • Armed Forces Tribunal Act, 2007: The Armed Forces Tribunal Act was enacted to provide a judicial forum for adjudication of disputes and complaints concerning the commission, appointments, enrolments, and conditions of service in the armed forces, and for the trial of offenses punishable under the Army Act, Navy Act, and Air Force Act. The special Tribunal created under the Act is mandated to hear appeals from court-martial decisions and handle certain service-related disputes.
  • Armed Forces (Special Powers) Act, 1958: This act grants special powers to armed forces in "disturbed areas" to maintain public order. However, AFSPA is controversial due to concerns about human rights violations.
  • The Sashastra Seema Bal Act, 2007: This act deals with the regulation of armed forces in the border areas.
• There are a few other laws and acts that also relate to the armed forces. Some of them are: 
  • The Cantonments Act, 2006
  • The Central Reserve Police Force Act, 1949
  • The Border Security Force Act, 1968
  • The National Security Guard Act 1986 

This comprehensive legal framework ensures the structured functioning, discipline, and administration of the Indian armed forces and paramilitary forces, aligning with the constitutional provisions and requirements of national security.

International Framework 

• International Criminal Court (ICC): Established by the Rome Statute, the ICC investigates and prosecutes individuals for war crimes, crimes against humanity, and genocide. However, the ICC's jurisdiction is limited. India is not a member of the ICC, but it can still cooperate with the court in investigations.
• Geneva Conventions and Additional Protocols: The Geneva Conventions (1949) consist of four treaties: the First Geneva Convention protects wounded and sick soldiers on land during war, the Second Geneva Convention protects wounded, sick, and shipwrecked military personnel at sea during war, the Third Geneva Convention addresses the treatment of prisoners of war, and the Fourth Geneva Convention focuses on the protection of civilian persons in time of war. The Additional Protocols (1977) expand these protections, with Protocol I covering international armed conflicts, Protocol II addressing non-international armed conflicts, and Protocol III (2005) introducing an additional distinctive emblem, the Red Cross.
• Hague Conventions: The Hague Conventions of 1899 and 1907 established laws of war and war crimes, including the Hague Convention IV (1907) which outlines regulations on the laws and customs of war on land, and the Hague Convention for the Protection of Cultural Property (1954) which protects cultural property during armed conflict.
• Arms Control and Disarmament Treaties: Arms control and disarmament treaties aim to regulate arms and prevent their proliferation, including the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) (1968), the Chemical Weapons Convention (CWC) (1993), the Biological Weapons Convention (BWC) (1975), and the Arms Trade Treaty (ATT) (2013).
• Humanitarian Organisations: Several international and non-governmental organizations play critical roles in implementing and enforcing international laws, including the International Committee of the Red Cross (ICRC), The United Nations High Commissioner for Refugees (UNHCR), Human Rights Watch (HRW), and Amnesty International.
• International Court of Justice (ICJ): The ICJ, the principal judicial organ of the UN, settles disputes between states and provides advisory opinions on international legal issues, contributing to the maintenance of international peace and security.

Major Amendments

• The Army Act, 1950, has changed, such as The Army (Amendment) Act, 1992, which improved court-martial procedures
• The Navy Act, 1957, has seen amendments like The Navy (Amendment) Act, 2005, which restructured naval courts and disciplinary mechanisms.
• The Air Force Act, 1950, was updated with the Air Force (Amendment) Act, 1975.
• The Armed Forces Tribunal Act, 2007, established a crucial judicial forum for military personnel, with the Amendment Act, 2012, enhancing its powers and functions. Recent efforts aim to expand the tribunal's jurisdiction to include a broader range of service-related grievances.
• The Legislation of Paramilitary Forces, including The Border Security Force Act, 1968, the Central Reserve Police Force Act, 1949, and the Sashastra Seema Bal Act, 2007, has been updated to address modern security challenges and improve operational effectiveness.

Penalties for Violating Armed Forces Laws

The penalties for violating Indian armed forces laws depend on the specific offense and the relevant act under which the charge falls. Here's a breakdown:

• Army Act, 1950 (and similar acts for Navy and Air Force): This act outlines various offenses and corresponding punishments. Some examples include:
  • Mutiny: This can lead to punishment ranging from imprisonment to death (depending on severity).
  • Desertion:  Can lead to punishment ranging from imprisonment to death on active service or under orders for active service, and up to seven years under other circumstances.
  • Disobeying orders: This can lead to punishment extending to fourteen years on active service or under orders for active service, and up to five years under other circumstances.
  • Ill-treating a subordinate: Imprisonment for up to seven years.
• Court-Martial: Court-martial proceedings are initiated by the military courts against the armed forces personnel for violating the laws of the military. There are different types of court-martial proceedings in India governed under the framework of The Army Act, 1950, The Air Force Act, 1950, and the Navy Act, 1957.

Reporting a violation of armed force law in India can be a complex process depending on the nature of the violation and who is involved. 

How to Report a Violation by Armed Forces?

• Reporting a Violation by a Civilian Against Armed Forces Personnel:
  • Regular Crime: If the violation involves a regular crime (theft, assault, etc.) committed by a member of the armed forces against a civilian, you can file a First Information Report (FIR) with the local police station.
• Reporting a Violation by Armed Forces Personnel:
  • Internal Mechanisms: For violations concerning service conditions or misconduct within the military, the preferred approach is to use internal mechanisms:
    • Chain of Command: The most direct route is to report the violation through the soldier's chain of command. This allows the military to handle the issue internally.
    • Complaints Cell: Many units have internal complaints cells where grievances can be reported.
• Reporting Alleged Human Rights Violations:
  • National Human Rights Commission (NHRC): If the violation involves alleged human rights abuses by the armed forces, you can file a complaint with the National Human Rights Commission (NHRC): https://nhrc.nic.in/. The NHRC has a specific process for investigating such complaints against the armed forces.

How Can Seasoned Advocates Help You?

A seasoned lawyer can be invaluable in navigating the complexities of armed force law violations for several reasons:

• Deep Legal Knowledge: Military law is a specialized area, and experienced lawyers have a thorough understanding of the relevant Acts (Army Act, Navy Act, Air Force Act), court-martial procedures, and legal precedents related to the armed forces.
• Strategic Guidance: They can advise you on the best course of action based on the specifics of your case. Whether it's reporting a violation through the chain of command, filing a complaint with the NHRC, or pursuing legal action, a seasoned lawyer can guide you through the appropriate channels.
• Evidence Gathering and Case Building: They can assist in gathering and presenting evidence to support your claim. This is especially important in cases involving human rights violations or complex legal issues.
• Negotiation and Representation: Lawyers can negotiate with the authorities on your behalf and represent you in court-martial proceedings or before the Armed Forces Tribunal (AFT). Their experience with military legal procedures can be a significant asset.
• Understanding AFSPA: If your case involves AFSPA, a seasoned lawyer can explain its implications and advise on the most effective way to proceed within the limitations set by this act.

Conclusion

In essence, the above-mentioned laws are not just specific, they are critical in practical aspects to deal with. If you are entangled with the violation of any of the armed forces laws, you need a seasoned lawyer who acts as your advocate within the legal framework of armed forces law. Their expertise and experience can significantly increase your chances of a successful outcome. To know more, contact us.