Understanding Court Martial

This article is written by Jeanie Mohanty, of KiiT School of Law, Bhubaneswar. This article describes court martial, its types, procedure and drawbacks.

The trial of a military personnel in military court  

The military personnel have different laws, rules and regulation for which they have different trials and procedure to impose punishment on the wrongdoer. The trial in the military court is known as a court martial. They have different court, different procedure and different members to execute the court martial other than the normal Indian judiciary.   

Court-martial is a procedure for trials of the military personnel for violating the military laws or making any military offences. It is similar to the civilians criminal trial proceedings but conducted in a military court. This is separately designed for the military personnel only (army, navy, marine, air force and at times coast guards), to try them for the violation of military discipline and other misconduct. There are twelve groups of people who can be trialled under court-martial or the military justice system namely the military personnel, members of a quasi-military organisation (public sectors working with the armed force), prisoner of military and war and even some specific civilians can be trialled under court martial despite the place of occurrence of the offence. Court-martial cannot trial civil proceedings.

When a person (in service) is accused to be an offender, the charges are investigated by his commander to find out the information regarding the offence, the culpability (severity) of the offence. Post-investigation the commander can let go of the accused, take action against him, give him non-judicial punishment, form charges against him or refer the case to the higher authority to form the charges. To try the charges of offences against a sailor and soldier, military or naval personnel are appointed by a commander.

The military personnel can be tried for all offences under the Army Act except for

1. Rape,
2. Murder and
3. Culpable homicide not amounting murder of a civilian

These are to be tried by the civilian courts. But there are few exceptions to which the court-martial has a jurisdiction to try the case if the above-mentioned offences are committed in the following way;

1. The course of employment or during an active service
2. Any place outside India
3. Any border or frontier post directed by the Central Government through notification.

Types of court martial

• General court martial

This is for the most grievous offence, which is a felony in a civilian system. Before the trial under the general court-martial, a pretrial hearing is done known as ‘Article 32 hearing’ which is in a civilian system is done by grand juries to ensure that the charges are formed properly and it is supporting them. The trial can be heard by a military judge alone or a military judge and a panel of 5 members.

• Only capital cases need a full agreement of all the deciding panel to pass the sentence.
• Cases in which the punishment awarded is confinement for more than 10 years requires a majority of three-fourths to pass the sentence.
• Any lesser crime needs two-thirds of a majority to convict the accused.
• General court-martial can pass any punishment including death or which is prescribed in the court-martial manual and it should be according to the seriousness of the crime or offence.

• District court martial  

A district court-martial can be initiated by any officer who has the power to initiate a general court-martial or any other authority who has been given the power to do so, as per the warrant prescribes issued under the Chief of Naval Staff. It must have an officer not less than a substantive rank of Lieutenant Commander as president and have the power to try any person who is subjected to the prescribed act of lieutenant rank or below or sailor. The deciding panel can pass any sentence under this but not exceeding the given authority against an officer for forfeiture of seniority in rank or forfeiture of time for promotion for a period and in case of a sailor only short imprisonment.  

• Summary general court martial

A summary general court-martial can be initiated by any officer who has the power to initiate a general court-martial or any other authority who has been given the power to do so in his behalf, as per the direction in the warrant issued under the Chief of Naval Staff. For an active service, the summary general court-martial will be called by an officer commanding a flotilla or a squadron who should not be below the substantive rank of Commander. The officer can do so only when he feels that it is not possible to try the accused under general or district court-martial. A summary general court must have an officer not less than a substantive rank of Lieutenant Commander as president and have the power to try any person who is subjected to the prescribed Act and for any offence which is punishable under the act. The deciding panel can pass any sentence which is authorised.

• Summary court martial

When the service holders are charged with minor offences it is reviewed by the summary court-martial, but cases of officers, cadets, midshipmen are not reviewed by summary court-martial. It is not reviewed by any military judge or attorney general rather by a commissioned officer who may not be a lawyer. The accused can deny for summary court-martial and request for any other type of court-martial. The accused can also appoint a civilian attorney general at his own expense to represent him. Except for Air Force, no other military personnel get a free representation of a military attorney. If the accused is found guilty, then he can be awarded a maximum punishment of 30 days confinement,  give up two third of his salary for a month or he may be decreased to the lowest grade salary.

Eligibility to conduct the trial under court martial

1. The no. of members must be five or more but less than nine.
2. All members must be a knowledge of the naval law.
3. All members must be of a rank of lieutenant and above.
4. All members must be of 21 years and above.

The Procedure of court martial  

• Initiating charges

When any person in service violates the rules and laws of the military, he is brought to his commanding officer for clarification. If the commanding officer has sufficient reasons to believe that the service person has violated the prescribed law then he may apprehend and confine the accused up to 72 hours while he decides how to proceed, it is a pretrial confinement. The commanding officer may also choose not to proceed with any court-martial against the accused instead impose any non-judicial punishment. If the serviceman (accused) feel that the punishment is unjust he can appeal.

If the commanding officer chooses to proceed with court-martial then he has to present the accused or proceed with the procedure within 120 days of apprehension. A court-martial can also be called by the President, Secretary of defence or the Secretary of the military branch (to which the accused belongs). The authority who orders for the court-martial is known as the convening authority. The court-martial begins with reading out the charges to the accused in the presence of the commanding officer and a third officer (who is supposed to be neutral to the case), this is known as ‘Preferring the charges’. Both the parties are assigned with a military judge and legal representative to represent them during the trial. Both the parties, that is the accused and the prosecution has the privilege to investigate the facts of the case, collect information and documents then submit them to the court as evidence of their argument. The investigation may continue during any stage of the court-martial, unlike in civilian trial system.

• Entering pleas

After initiating and preferring the charges, the accused is given a chance to give statements in support of him or against the allegations on him to prove his innocence. If the accused pleads guilty then the military judge will accept that only after he makes sure that the accused have properly understood the charges against him and the consequences. Provided the prosecution is not seeking the death penalty. Once the guilty plea is accepted by the military judge, the accused will be sentenced.

• Proceeding to trial

If the accused is proved to be not guilty of the offence, then a panel will be chosen by the convening authority to decide the facts, mostly they are commissioned officers of a different unit and of a higher rank than the accused. The accused may also make a request for an enlisted member to join the panel. The panel takes an oath before the trial begins that their decision will be free from any kind of biasness and impartiality or any kind of influence from their commanding officers. Similar to civilian criminal trial, each side is given an opportunity to present their argument, witness and cross-examination of witnesses. The military judge asks the panel to apply the law and come to a decision. If the accused is declared guilty then either the military judge or the panel will pass the sentence according to the sentencing guideline in the manual.  

Appeals

• In Summary court-martial, if the accused is not satisfied with the judgement or finds it to be unjust then he may appeal to the judge advocate to look into the legal and factual findings and the correctness of the sentence or if he refuses then the accused can appeal to the convening authority, if they also disapprove then the accuse may send the case to judge advocate general to review the case.  
• In a General court-martial, when the sentence includes the death penalty, dismissal from the service or confinement for at least one year the accused can appeal in the Branch’s Court of Criminal Appeals. To review the fact, the correctness of the sentence and legal errors. When a sentence includes death penalty it is mandatory for the accused to appeal. If the branch court of criminal accepts the prevailing sentence then the accused can appeal in the Court of Appeals for Armed Forces and after that in the supreme court. The power to review the appeals is discretionary.

Territorial jurisdiction

Armed Forces Tribunal 2007, was passed by the parliament to empower the Armed Forces Tribunal to resolve the disputes and complaints of the people who are subjected to Army Act, 1950, The Navy Act, 1957 and The Air Force Act,1950. It also allowed this tribunal to provide appeals in case of miscarriage of justice.

Chandigarh and Lucknow Regional Benches have three benches each, whereas other Regional Bench has single bench each consisting of a Judicial member and an Administrative Member. A Judicial member is a retired High Court Judges and an Administrative member is a retired Armed Forces member who must have been in a rank of Major General or above that for three years and more. The tribunal proceeding will be in English and mostly follows the procedure practised in High Courts of India.

Rights of the accused

1. The accused have the right to be informed of the charges against him.
2. The accused have the right to be silent if he thinks that saying so will put him in trouble or held him guilty. No person can force him to appear guilty or ask him to prove himself guilty against his will.
3. The accused have the right to defence counsel in case of General court-martial when the accused may face bad conduct discharge.  
4. The accused have the right to protection against double jeopardy, that means the accused cannot be tried twice for the same offence. But the accused may be court-martialed and can again be tried under the civilian court for the same.

Drawbacks of court martial

1. When a person in service commits murder or rape against a civilian under the specific circumstance the court-martial has the jurisdiction to try the case. At times the Commanding Officer or any higher authority impose very minimal punishment as compared to the offence up to the rank of Major.
2. The accused has no legal aid during the trial due to which he can not appeal against an unjust punishment. If a Commanding Officer is awarding an imprisonment up to 42 days to havildar, he has no right to appeal against this punishment.
3. The members of a court-martial or the deciding panel of the trial are not legally qualified nor trained regarding the sentencing of an offence.
4. In summary general court-martial the former accused can be denied from a formal charge and legal assistance.
5. The higher authorities conducting court-martial have unrestricted power to impose, cancel or decrease the punishment of the accused even in civil matters.
6. The Judge Advocate is assigned under the administrative and functional control who are the same members who have called and reviewed the court-martial proceeding. Therefore a Judge Advocate is not an individual head from whom we can expect much justice.
7. The court-martial has no jurisdiction to trial related to leave, posting and transfer problems, which is the core issue of the military personnel.
8. The Armed Forces Tribunal has no jurisdiction to trial civil contempt, there have been many cases where the military as well the government authority have failed to take any action against the decision of the tribunal.

Can you go to Supreme Court against a court martial order?

In a landmark judgement, Armed Force Tribunal (AFT) ordered the defence ministry to pay a compensation of Rs. 4 crores to an officer who was court-martialed 26 years ago, the AFT also asked the Army to pay Rs. 1 crore in Army central Welfare Fund within four months and to restore the service of lieutenant SS Chauhan. The petitioner was in the Sixth Rajput Battalion, posted in Srinagar when he was court-martialed on November 4, 1991, after being declared as deserted and mentally disturbed. The order was approved by the General Officer Commanding-in-Chief, Srinagar then.

Chauhan was falsely dismissed on the ground of desertion and ill mental condition because during his service he had recovered 147 gold biscuits weighing 27.5kg in a search operation from a house in the presence of other soldiers. He handed over the biscuits to his senior officers but in return, the officers initiated a false case against him and dismissed him from service to make sure that the recovery of gold should be concealed from the government. Justice DP Singh and Air Marshal Anil Chopra quashed the court-martial of Chauhan and asked the defence ministry to restore Chauhan’s service and provide him promotional avenue up to the stage of lieutenant colonel to compensate the arrear of salary, pension benefit and rank. Keeping in mind the mental pain, loss and humiliation suffered by Chauhan (Petitioner).

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