Armed Forces Litigation in India: Legal Framework, Tribunal and Court-Martial Appeals

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, differ from the Army Act, 1950, and are more focused on rules and regulations governing duties, including provisions for misconduct and offenses.
  • 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, establish a legal framework similar to the Army Rules, 1954, which regulate Air Force personnel.
  • The Navy Act, 1957: It defines the legal framework for the Indian Navy. The Act comprises rules and regulations governing commissions, appointments, and enrolments, as well as procedures for service, and provisions regarding punishments for misconduct and offenses. 
• Other Laws that Govern the 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, the Navy Act, and the Air Force Act. The special Tribunal established 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.

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 rules 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 global peace and security.

Significant Amendments

• The Army Act, 1950: The Army (Amendment) Act, 1992, improved court-martial procedures.
• The Navy Act, 1957: The Navy (Amendment) Act, 2005, restructured naval courts and disciplinary mechanisms.
• The Air Force Act, 1950: The Air Force (Amendment) Act, 1975, introduced the broadened scope of disciplinary action and judicial procedures.
• The Armed Forces Tribunal Act, 2007: It 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.

Penalties for Violating Armed Forces Laws

• 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: It can lead to punishment ranging from imprisonment to death during active service or orders for active deployment, and up to seven years under other circumstances.
  • Disobeying Orders: This can lead to punishment up to fourteen years during active service or under orders for active deployment, and a punishment of up to five years under other circumstances.
  • Ill-treating a subordinate: Imprisonment for up to seven years.
  • Betrayal and Criminal Offenses: If someone betrays or commits a heinous criminal offense in the discharge of their duty, or engages in any of the acts mentioned above, they can be tried by a court-martial.
• Procedure: Military courts initiate court-martial proceedings against personnel in the armed forces for violating military laws and regulations. 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. It can be categorized into four types: General Court-Martial (GCM), District Court-Martial (DCM), Summary General Court-Martial (SGCM), and Summary Court-Martial (SCM). The convicted person has the right to appeal against the decision of the Court-Martial to the Armed Forces Tribunal (AFT) and can file an appeal under section 15 of the Armed Forces Tribunal Act, 2007.

How to Report a Violation by Armed Forces?

• Reporting a Violation by a Civilian Against Armed Forces Personnel
  • Local Jurisdiction: If the violation involves a crime (such as theft or assault) committed by a member of the armed forces against a civilian, you can file a First Information Report (FIR) with the local police station or the relevant court. 
• Reporting a Violation by Armed Forces Personnel
  • Internal Mechanisms: Initially, aggrieved personnel are required to approach internal redress mechanisms, which are meant to solve grievances governed by applicable service rules. Section 21 of the Armed Forces Tribunal Act, 2007, itself mandates that a person must first seek relief through an internal mechanism. If he is denied relief or is dissatisfied with the relief granted to him, he may then approach the Armed Forces Tribunal (AFT). Hence, they cannot directly approach AFT. Failing to follow the procedure mentioned above, as prescribed under section 21 of the AFT Act, 2007, can lead to dismissal of the petition by the AFT. 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. Aggrieved military personnel can submit written representations to their immediate superior officer or the relevant authority in their chain of command. Generally, the time limit for responding to such a representation is within 24 hours; however, this may vary depending on the type of armed force.
    • Complaints Cell: Many units have internal complaints cells where grievances can be reported.
    • Armed Forces Grievances Redressal Portal (Online): The government has introduced an online grievance platform for ex-servicemen and their families, allowing them to submit online complaints regarding ECHS issues, pension and disability benefits, CSD grievances, etc.
  • Armed Forces Tribunal: The tribunal has original jurisdiction over service matters and appellate jurisdiction over court-martial decisions. In the case where AFT does not have jurisdiction or the matter pertains to an individual’s fundamental rights, he can file a writ petition under Article 226 or 32 of the Constitution of India before the HC or SC, respectively.
• Reporting Alleged Human Rights Violations
  • National Human Rights Commission (NHRC): If the alleged violation involves human rights abuses by the armed forces, you can file a complaint with the National Human Rights Commission (NHRC) at https://nhrc.nic.in. The NHRC has a specific process for investigating such complaints against the armed forces.

Conclusion

In essence, the laws mentioned above are not only specific but also critical in practical aspects to deal with. If you are entangled in a violation of any armed forces law, you need a representative from the department, as per the procedure, to defend you. Their expertise and experience can significantly increase your chances of a successful outcome. To know more, contact us.

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