Published On: 3rd October 2026
Authored By: Anushka Shrivastava
GITARATTAN INTERNATIONAL BUSINESS SCHOOL, GGSIPU
INTRODUCTION
When we talk about justice in India, we generally think about regular courts – like district courts, high courts and supreme court, but there is another court system which functions very differently and separately for the armed forces. This is known as military justice system. this system works through a court called COURT MARTIAL. this system performs very differently from the normal civil courts there in the country.
the question is does the court martial system gives a fair trial to the defence personnels of army navy and air force or does it fail to follow the basic principle of natural justice given in the constitution of India
HISTORY OF MILITARY JUSTICE
Military justice is not a new thing in India. This has been started during the British colonial period and continued even after India became independent in 1947. The Army Act 1950 Airforce Act 1950 and Navy Act 1957 were the main commanding rules of this system. These laws were made to keep discipline, rules and regulation and uniformity in the armed forces that is very important for a country’s security.
the current military justice framework in India has its deep roots from the British military rules and laws from the 1911 which does not meet the present constitutional values of India.
WHAT IS COURT MARTIAL?
A court martial is like a court but for the armed forces. It is not a permanent court as it is made temporarily when any soldier, airman or sailor or any other defence personnel is accused of doing something wrong.
this can be anything like not obeying the orders of the senior commanding officer or deserting the army without any valid reason or mutiny or absence without leave. It can be for regular crime too like theft, assault etc. The court martial is started by a senior officer known as the convening officer he decides whether a court martial is needed or not.
all the people present during the court martial are military officers. They are not professional judges like the one in regular courts. Except the JAG officer, rest officer doesn’t all the people present during court martial are military officers.” even have a law degree or a legal training. This concerns that on what basis will the hearing will be done as none of them has any experience in the law field. this may raise concerns regarding the elements of article 14 such as fairness, equality and procedural impartiality
TYPES OF COURT MARTIAL
The army act 1950 outline 4 types of court martial each have a very different degree of power and jurisdiction based on the seriousness of the offence and the rank of the accused
- GENERAL COURT MARTIAL ( GCM)-
This is the highest tier of military court.
Jurisdiction- it can try any person subject in the army act including the officers for any offence
Power- A GCM has the authority to give any sentence prescribed by the army act 1950 including the death penalty and life sentence.
Composition- it consist of 5 or more officers, for the trial of the officer all the GCM must be officer.
- DISTRICT COURT MARTIAL (DCM)-
This is an intermediate level court for trying less severe offences.
Jurisdiction- it cannot try officers; it is meant for JCO’s (Junior Commissioned Officers) and other ranks.
Powers- its sentencing power is limited; it can only give imprisonment up to 2 years and can also dismiss the individual from services.
Composition- It consist of 3 or more officers.
- SUMMARY GENERAL COURT MARTIAL (SGCM)-
This is a special type of court that is convened under specific circumstances.
Jurisdiction- A SGCM is practiced / convened on active services like warzone or counter insurgency area when it is not feasible to hold GCM.
Power- it has similar powers to GCM including the authority to pass a death sentence. it is designed for delivering quick justice in the field.
Composition- it consists of three or more officers.
- SUMMARY COURT MARTIAL (SCM)-
this is the lowest level of court designed for quick disposal of minor offences.
Jurisdiction- it can only try JCO’s, Warrant Officers and NCO’s (Non-Commissioned Officers) and Sepoys. Officers cannot be tried under SCM.
Power- it has a very limited power. the maximum punishment it can reward is rigorous imprisonment for upto 1 year (only if the presiding officer is the commanding officer of the department or corps) or upto 3 months in other cases.
Presiding Officer- The SCM is held by the Commanding Officer (CO) of the accused unit.
THE PRINCIPLES OF NATURAL JUSTICE
When we study administrative law, we tend to study and know about the 3 principles of natural justice. India adopted the concept of Natural justice system from the UK (England) . Although Natural justice is not written somewhere or in any specific law, but still it’s a basic principle that our courts have developed.
Natural justice simply means “THE JUSTICE SHOULD BE FAIR”.
It consist of three main rules
1st Rule- NEMO JUDEX IN CAUSA SUA (also known as RULE AGAINST BIAS)
This means “no one should be a judge in his own case”. This is because if the person who is deciding the case should not have any bias or personal interest in the case. This may lead to unfair practice and injustice. The deciding judge should be independent and impartial.
2nd Rule- AUDI ALTERAM PARTEM (also known as THE RIGHT TO A FAIR HEARING)
This means hear the other side. No one should be left unheard. This means that the accused person should get a fair chance to represent his side of the case, to present evidence and to have a legal representation.
3rd Rule- SPEAKING ORDER or REASONED DECISION
A speaking order is a decision that clearly states the reasons and grounds on which it is based. It is an essential part of Natural Justice as it ensures fairness and prevents arbitrariness.
It helps the affected person understand the decision and exercise the right to appeal.
These principles are the part of the Article 21 given under the Indian constitution , it guarantees the fundamental right to life and personal liberty, stating that no person can be deprived of these rights except according to a procedure established by law. The supreme court has said that this procedure must not be arbitrary , unfair or unreasonable and it must follow the principles of natural justice .
CONSTITUIONAL PROVISION AND MILITARY LAW
Our constitution does recognize that armed force members are very different from the ordinary citizens. The article 33 of the Indian constitution gives the parliament the power to restrict or remove the fundamental rights of the armed force members. It is done to ensure that they can perform their duties properly and the discipline is maintained. Article 136 sub clause 2 and 227 of the constitution also limit the power of the supreme court and high court to review the court martial orders. This somewhat means that army personnel cannot challenge the decision made by the court martial in the ordinary court. Although judicial review remains available under Articles 226 and 32.
The Supreme Court have stated that even if the article 33 allows restriction on fundamental rights of the armed member, this restriction should not be unlimited. The military justice system should still have to follow the basic principle of fairness.
MAJOR PRBLEMS IN THE COURT MARTIAL SYSTEM
- NO RIGHT TO BAIL
When a defence personnel is arrested, they do not have any automatic right to bail. The commanding officer or the most superior officer or authority can decide whether to give bail or not. This decision Is based on their own discretion and there’s no such fixed rule for it. This clearly violated the article 21 of the constitution. The supreme court have given certain guidelines on when the bail should be given but in the military system these guidelines are not follow. It shows a sense of arbitrariness and unfairness toward the individual and violates the Article 21 of the constitution.
- LIMITED PRACTICAL ACCESS TO CIVILIAN LAWYERS
Although Indian military law permits an accused person to hire a civilian lawyer during the court martial proceedings there arise some practical difficulties to do so such as deployment location, military procedure and limited preparation time which may affect the effective legal representation.
in many cases the accused relies on the defending officer provided by the unit who may not have formal legal knowledge , training or degree . this raises a concern about fairness and quality defence.
- SUMMARY COURT MARTIAL VOILATE THE NATURAL JUSTICE
The SCM is simpler and less formal than GCM/DCM. It combines multiple procedural roles in a compressed manner, which raises concerns about neutrality. The trial is not professional because the member lacks the formal judicial/legal training which may affect adjudicatory quality. In case of UNION OF INDIA VS CHARANJIT S. GILL (2000) the Supreme Court and High Court have criticized the SCM system for failing the “ just and fair reasonableness test”.
- INDEPENDENCE OF COURT MARTIAL MEMEBERS
For a court to be fair, the judges should be independent. they should not be under the control of anyone who has an interest in the case, nor the judge should have any interest in the case. But in court martial-
– the members of the court are military officers
– they all are often subordinates in rank to the convening officers.
-The convening officer has the control over the promotions, posting, leave and appraisals of those officers.
– this means possibility of institutional influence may lead to a fear of affecting their future hence the court members may not be able to decide freely.
- THE CONVENING OFFICER HAS TOO MUCH POWER
The same person who starts the case (convening authority) also appoints the court members, defence office and controls the constitution of proceedings. After the courts make decision the convening authority must confirm the decision. if he’s not happy then he has the authority to change it. This is the clear violation of the principle of natural justice “nemo judex in causa Sua” i.e. no one should be judge in his own case. The convening officer is involved in each and every step of the proceeding. this creates a conflict of interest and threatens the right to a fair trial.
- MEMBERS ARE NOT TRAINED TO ADMINISTER JUSTICE
The members of the court martial are military officers. They are serving officers primarily trained for military command, not judicial adjudication. But now they are required to do the job of a judge which regular courts require a law degree and year of practice and experience. These officers are expected to asses evidence decide if someone is guilty and give punishment. but they do not have any legal training to do this properly. Even with the advice of a JAG officer, they may not be able to make a fair decision.
- NO RIGHT TO APPEAL
Indian military law historically does not provide a conventional appellate court structure like civilian courts. If an individual is no satisfied with the decision they can appeal to higher court but in court martial there’s no such right. Section 164(2) of the army act says that a person can file a petition with the central government or superior officer only after the sentence is confirmed.
- HUMAN RIGHTS CONCERN
One of the major criticism of the court martial system is that it arises case involving allegations of serious human right violations such as encounters, custodial tortures etc. in such cases the concern is often raised regarding whether the military courts can provide sufficient transparency and impartiality specially when the accused person belongs to the same unit institution conducting the trial.
Laws such as the ARMED FORCE ( SPECIAL POWERS) ACT 1958 provide certain legal protection to the defence personnels for actions taken during the active duty in disturbed area. Though these protections are intended to support operational effectiveness but have often been criticized for creating procedural barriers.
Cases like the Machil fake encounter case demonstrate that accountability within the military justice system is possible, but they also highlight the larger debate on balancing military discipline with constitutional values and human rights protections.
WHAT HAVE OTHER COUNTRIES HAVE DONE.
Many countries have realized that their military system needs reform. Countries like UK have significantly reformed their systems over time. In the case of FINDLAY VS UNITED KINGDOM (1977) where the European court of human right held that the British court martial system lacked the independency and impartiality was been done because of the excessive power was given to the convening officer. The court observed that when the same authority controls the constitution and functioning of the court, it creates a serious concern regarding the fairness.
After this decision, the United Kingdom introduced the major reforms in the military justice system. Same reforms were also made by the other countries like Canada and New Zealand.
This reform included
- Reducing the powers of the convening authority.
- Strengthening the independence of military judges.
- Establishing permanent military courts instead of temporary ones.
- Expanding access to independent legal representation.
- Improving procedural safeguards for accused personnel.
These reforms provide and important example for India to reconsider and modernize its own court martial system in a systematic order in accordance with the constitutional principles of fairness and justice.
JUDICIAL CRITICISM OF THE COURT MARTIAL SYSTEM
The supreme court have made several important decisions about the military law.
- RAM SARUP VS UNION OF INDIA (1965)- The supreme court said that every clause of the Army act is a law made by the parliament. So even if a clause seems to violate the fundamental rights, it is still legal because the Parliament has the power under Article 33 to make such changes, but the court also said that Section 125 of the act was not discriminatory and did not violate Article 14.
- OUS KUTILINGAL ACHUDAN NAIR VS UNION OF INDIA (1976)- The supreme court said that the Article 33 creates an exemption to fundamental rights including the right to form associations under Article 19(1)(c)
- LT. COL. PRITHI PAL SINGH BEDI V. UNION OF INDIA (1982)- This case showed that although the Supreme Court upheld military law, it recognized that court-martial must still follow fairness and cannot remain completely insulated from constitutional scrutiny,
WHY REFORMS ARE NEEDED?
The issues discussed above shows that although the military justice system is necessary for maintaining discipline, certain procedural and structural weaknesses continue to exist. Judicial observations, comparative reforms in other countries and concerns regarding natural justice indicate that reform is necessary to ensure fairness without affecting military discipline.
WHAT REFORMS SHOULD BE MADE
To make the military justice and court martial procedure more systematic and fairer, transparent and consistent with constitutional principles, certain reforms are necessary.
- Strengthening the Right to Bail: Military law should provide clear and more structured safeguards regarding detention and release of a defence personnel. The grant of bail should not depend solely on the discretion of superior officers.
- Ensuring Effective Legal Representation: Although civilian lawyers are allowed in court-martial proceedings, practical access to legal representation should be made easier and more effective, especially in SCM proceedings.
- Reforming the Summary Court Martial System: The Summary Court Martial system should be reviewed and reformed by introducing stronger procedural safeguards to prevent misuse of power and ensure fairness.
- Making Court Martial More Independent: The power of the convening officer should be reduced so that the members of the court can function independently without institutional influence or pressure or any kind of fear.
- Inclusion of Professionally Trained Judicial Members: Court Martial proceedings should include legally trained judicial officers or professional judges to improve the quality of legal reasoning and decision-making.
- Creating a Stronger Appellate Mechanism: A proper and independent appellate system should be established so that accused personnel have a meaningful opportunity to challenge court-martial decisions.
- Increasing Transparency in Proceedings: Transparency should be introduced by making important court-martial decisions and outcomes more accessible, while maintaining necessary military confidentiality.
- Limiting Military Jurisdiction in Certain Cases: In cases involving serious human rights violations or ordinary criminal offences, greater civilian judicial oversight should be considered to ensure impartial justice.
CONCLUSION
The court martial system remains one of the important parts of the military justice system in India. It helps in maintaining the discipline order and efficiency within the armed forces. However, there are some structural and procedural concerns that raise the question of fairness and it compliance with the principles of natural justice. Issues such as excessive power to the convening officer limited independence of court member and procedural concerns in SCM. reforming the military justice system does not mean that it will weaken the discipline rather it will help in strengthening the trust of the armed force personnel in the justice system. A fair and transparent system is necessary not only for the discipline but also preserving the constitutional principles on which the nation stands.
REFRENCES
- Avinash Raj David, “Military Justice System in India,” Journal of Emerging Technologies and Innovative Research (JETIR), March 2019, Volume 6, Issue 3.
- Shailesh Rai, “India’s court-martial system fails on all counts: competence, independence, impartiality,” Scroll.in, 2015.
- Diva Rai, “Military Justice System and Armed Forces Tribunal in India,” iPleaders, June 6, 2019.
- Snehil Sharma, “Military Justice System in India, “Legal Bites, November 12, 2022.
- Ram Sarup vs. Union of India, AIR 1965 SC 247.
- Ous Kutilingal Achudan Nair vs. Union of India, AIR 1976 SC 1179.
- Col. Prithi Pal Singh Bedi v. Union of India & Ors.(1982) 3 SCC 140
- The Army Act, 1950.
- The Constitution of India, Articles 14, 20, 21, 22, 33, 136, and 227.
