Analysis on the 169th Law Commission report- “Amendment of Army, Navy and Air Force Act”

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Published On: 29th August, 2024

Authored By: Raisa Gupta

The Law school, University of Jammu

ABSTRACT

The Law Commission of India is a non-statutory organization that was created by a notification from the Ministry of Law & Justice, Department of Legal Affairs, and the Government of India. It is an executive body which is established by an order given by the Government of India. Its purpose is to carry out legal research, and it reports to the Government on its findings in the form of reports. The Law Commission of India gives a vital and thought-provoking review of Indian legislation.

Report no. 169 of the Fifteenth Law Commission mentioned about the amendment of the Army, Navy and Air Force Act. Army, Navy and Air Force are included in Army forces. An army is a large, organized group of people who are guarded and trained to fight on land in a war. Armies are organized and controlled by governments. The Navy is the sector of a nation’s armed forces that engages in war at sea with aircraft, ships, submarines, etc. The Air Force is the branch of the military that is responsible for fighting in the air. It is imperative to guarantee that the Armed Forces receive the top talent from society and that brave and intelligent individuals do not turn away due to insufficient mechanisms for enforcing justice inside the Armed Forces. It must be remembered that military discipline cannot be based only upon domination and constant obedience to the orders of the superiors. Many democratic nations have felt it necessary to recast their military laws to provide greater protection against arbitrary action. This article mainly deals with a comprehensive analysis of the 169th Law Commission report, focusing on the proposed amendments to the Army, Navy, and Air Force Acts.

KEYWORDS

Law Commission, Charter Act, Criminal Procedure Code, Penal Code, Pre-Constitutional Laws, Fundamental Rights, Suo Motu, Non-statutory organization, esprit-de-corps.

INTRODUCTION

In Indian history, law reform has been a continuous process, especially over the last 300 years or more. The process of reform had been spontaneous and had not been formalized through properly constituted law reform institutions throughout the ancient era when religious and customary law dominated the sector. But starting in the third decade of the nineteenth century, the government frequently established Law Commissions, which have the authority to suggest legislative changes aimed at simplifying, combining, and establishing specific legal areas where the government considered it necessary.

The Law Commission of India is a non-statutory organization that was created by a notification from the Ministry of Law & Justice, Department of Legal Affairs, and the Government of India. It is an executive body which is established by an order given by the Government of India. Its purpose is to carry out legal research, and it reports to the Government on its findings in the form of reports. The Law Commission of India gives a vital and thought-provoking review of Indian legislation.

RESEARCH METHODOLOGY

This paper is of an explanatory and descriptive nature. It mainly focuses upon a comprehensive analysis of the 169th Law Commission report and the Amendment of the Army, Navy and Air Force Act which happened in the recent past. For a scrupulous examination of these subjects, the research uses secondary sources, which include various online platforms.

REVIEW OF LITERATURE

Under the Charter Act of 1833, the East India Company established the first Law Commission in India in 1834. Lord Macaulay served as its chairman. The Criminal Procedure Code, the Penal Code, and a few other issues were suggested to be codified under Lord Macaulay’s chairmanship. Three further commissions were created in British India following that. For a three-year tenure beginning in 1955, the first Law Commission of independent India was established. Twenty-one more other commissions have been constituted since then.

After independence, the Indian Constitution, with its Declaration of Fundamental Rights and guiding principles of state policy gave a new direction to law reform geared to the needs of a democratic legal order in a plural society. Even though Article 372 of the Constitution mandates that pre-Constitutional laws remain in effect until they are amended or revoked. there have been demands in Parliament and outside for the creation of a Central Law Commission to provide recommendations for modifying and amending the legacy laws to better meet the nation’s constantly changing requirements. In 1955, the Indian government took a positive response and appointed Mr. M. C. Setalvad, the country’s Attorney General at the time, as Chairman of the First Law Commission of Independent India. Then, twenty-one other Law Commissions have been appointed, having different terms of reference and a three-year tenure.

Report no. 169 of the Fifteenth Law Commission mentions about the amendment of the Army, Navy and Air Force Act. The topic was taken up suo motu considering the Hon’ble Supreme Court’s observations in Lt. Col. Prithi Pal Singh v. Union of India, 1982 (3) SCC 140 highlighting two glaring deficiencies in the Army Act: the need for courts martial to record reasons supporting their rulings and decisions, and the lack of an appeals procedure against such orders. While drafting its recommendations, the court in this case also considered developments in other nations, including the United States and the United Kingdom. The report’s main concept is that individual dignity must be respected in the Armed Forces while discipline is respected. It is necessary to make sure that the Armed Forces are not losing the services of brilliant and brave young men from the community due to insufficient mechanisms for enforcing justice within the Armed Forces, or fear of punishment for no wrongdoing on their part or the imposition of excessive punishment for a violation. To protect military commanders’ interests and maintain higher levels of discipline and behaviour within the Armed Forces, an efficient justice system must be developed. Discipline and justice are complementary. The Law Commission decided it needed to evaluate the current rules on the subject because Parliament has not yet taken any action in response to the ruling in Prithi Pal Singh’s case. Before coming to its final conclusions, the Law Commission held lengthy discussions with officers from all three of the armed forces, both retired and currently serving. By suggesting actions for quick resolution of appeals against court martial orders, the proposals in this study aim to address the shortcomings highlighted by the Honourable Supreme Court in its rulings on the matter. The report also suggests a few actions to speed up the resolution of complaints about the working conditions of military personnel.

Landmark case

Lt. Col. Prithi Pal Singh’s case-

Lt. Col. Prithi Pal Singh v. Union of India[1]

In the Prithi Pal Singh v. Union of India, the appellant was working as a staff car driver in the Ministry of Surface Transport (Transport wing), Government of India. He was informed that he was due to retire on November 30, 1989, on completion of his 58 years of age. But on May 19, 1989, he filed representation claiming that he could not be retired at the age of 58 years as in terms of Fundamental Rule 56(b) his age of superannuation was 60 years. The representation was rejected. On the rejection, he challenged the order dated December 28, 1988, before the Central Administrative Tribunal. The Tribunal too dismissed the application by its judgement dated 30TH November,1989. The appeal via special leave petition is against the judgement of the tribunal.

S.N. Mukherjee’s case-

S.N. Mukherjee v. Union of India[2]

In the case of S.N. Mukherjee v. Union of India, a Constitution Bench of Judges of the Supreme Court addressed or conveyed the issue of recording reasons in proceedings under the Army Act. The Supreme Court while recognizing the undisputable desirability of recording reasons as a principle of natural justice, ruled that such insistence cannot be applied to proceedings under the Army Act. It focused that the Army Act and its accompanying rules mandated the recording of reasons in only two specific circumstances:

  1. When the court martial recommends mercy, and
  2. When the proceedings of the summary court-martial are set aside or its imposed sentence is reduced.

The court expressly mentioned that the reasons need not be recorded for orders made by the confirming authority, confirming the findings and sentence established by the court-martial. In addition, the court shed light on orders issued by the Central Government dissolving post-confirmation petitions also do not necessitate the recording of reasons. This ruling gave clarity on the limited scenarios where the recording of reasons is mandatory under the Army Act, streamlining the procedural requirements in such military proceedings.

Rights of the Armed Forces

By providing a secure environment that enables everyone to enjoy their basic human rights and fundamental freedoms, the armed forces continue to play a crucial role in protecting a democratic state and society. Personnel in the armed forces are required to uphold international humanitarian law and human rights as representatives of the state system while performing their jobs. All ranks naturally respect human rights. Secularism, discipline, loyalty, integrity, esprit-de-corps, and an impartial viewpoint are other fundamental principles ingrained in the military. Their behaviour is more polite because of these values. Every Indian citizen has the right to fundamental rights under Article 13 of the Indian Constitution. It prohibits measures that “may take away or abridge the fundamental rights” that the nation’s people are granted from being passed by the Parliament or state legislatures.

Fundamental Rights:

  • Right to equality
  • Right to freedom
  • Right against exploitation
  • Right to freedom of religion
  • Cultural and educational rights
  • Right to constitutional remedies.

Article 33 is an objection to the Fundamental Rights in the Constitution of India. The previously mentioned legislation confers authority upon the Parliament to limit or completely suspend the implementation of fundamental rights concerning the Armed Forces, Paramilitary Forces, Police, Individuals working in intelligence or counterintelligence, and the communication networks established for those organizations. Certain Acts, such as the Air Forces Act 1950, the Navy Act 1957, and the Army Act 1950, were only passed according to this clause. Rights such as the freedom of assembly, speech, and expression, as well as the right to organize unions and groups, have been restricted by this legislation.

The Articles of War

  • Government of India Act, 1833

Section 73 of the Government of India Act, 1833 (3 and 4 Will. IV, C. 85) limited the Governor-General of Council’s authority to enact regulations that applied to the entire Indian Army. These rules were applicable to all Indian officers and forces, irrespective of where they were implemented. The Governor General in Council issued the “Articles of War” for the Indian officers and forces in 1845, Act XX, on the authority granted to the Indian Legislature by the Act of 1833. This represented the first time the Indian Legislature had created a single code for them. Act XIX of 1847 replaced this Act shortly after it was cancelled. Act XXXVI of 1861 repealed Act XIX of 1861 after it had been frequently amended (Acts of Governor General in Council VI of 1850, XXXVI of 1850, III of 1854, X of 1856, VIII of 1857, XII of 1857, and VI of 1860 in the intervening period). Act V of 1869 (“The Indian Articles of War”) replaced this and abolished it. According to the preamble of this Act, Act V was equally applicable to what are usually referred to as “followers” for the first time.

  • Amendment of “Articles” IN 1894

The “Indian Articles of War” had to undergo major changes when the three armies that the Presidencies had maintained were combined into one in 1895. The Indian Military Code’s statutory basis was provided until 1911 by Act XII of 1894, the Indian Articles of War as modified by this Act, and several minor amending Acts (Acts of Governor-General in Council, XII of 1891, I of 1900, I of 1901, IX of 1901, XIII of 1904, and V of 1905). But over time, as the Indian Army started to shoulder more of the British Army’s imperial duties, it became clear that the Act, which had been written initially for three distinct local forces, each acting as a ruler within its own Presidency, was insufficient to support the discipline and management of that army in the modern era. The numerous revisions that were placed on top of the original articles made them difficult to read and at times even contradictory.

  • The Indian Army Act, 1911

The Indian Articles of War were therefore amended once more in 1908; however, after careful consideration, it was determined that a newly established and amending Act would be required and that any further amendment to the Articles of 1869 would only serve to further contribute to the already-existing confusion. Thus, the Indian Army statute was enacted in March 1911 and went into effect on January 1st, 1912, combining all previous made laws pertaining to the Indian Army into a comprehensive statute and adding provisions that experience had proven to be required. Section 127 of the Act cancelled all earlier Acts pertaining to the topic. This Act was later amended by several amending Acts.

  • The Indian Army Act, 1920

To allow for sentence suspension, provisional Acts (Acts of Governor General in Council IV of 1917 and XVII of 1918) were passed between 1914 and 1918. These steps appeared to be helpful, and on March 23, 1920, a permanent Act abolishing the temporary Acts and enabling courts-martial to suspend sentences of imprisonment or transportation for individuals under the Indian Army Act went into effect. This Act was intended to be read together with the Indian Army Act and is referred to as the “Indian Army (Suspension of Sentences) Act” (Act of Governor-General in Council XX of 1920).

  • Army Act, 1950

The laws pertaining to the regular Army are combined and modified by the Army Act, of 1950. The Army Act of 1950 came into force on July 22, 1950. In the Army Act, there are 196 sections and the XV chapter. According to the terms of the Army Act of 1950, personnel below the rank of Junior Commissioned Officer may be tried by a Summary Court-Martial. In addition, the summary-martial court has the authority to impose a year-long jail sentence and termination of employment.

Difference in Navy Act and Army Act Procedures

In examining the procedures outlined in the Navy Act of 1957, a departure from those in the Army Act is perceivable. Differences include:

  • Confirmation Requirement:

The Navy Act does not need confirmation of the order recorded by the courts-martial as is required by the Army Act. The only exception arises when an officer receives a prison sentence, requiring communication to the Chief of Naval Staff for subsequent orders. It is the responsibility of the convening authority to execute the sentence (Regulation 194 of the Regulations for the Navy, Part II).

  • Non-Interference with Acquittal:

As per sub-section (2) of section 161, orders of acquittal made by court-martial cannot be interfered with either by the Judge Advocate General or the Chief of the Naval Staff.

  • Judicial Review Provision:

The Navy Act issues for judicial review of the proceedings of trials held by court-martial.  This authority of judicial review is vested in the Judge Advocate-General, who can initiate the review either suo motu or upon application by the aggrieved party. According to Section 160, a report is submitted to the Chief of Naval Staff for appropriate action whereas Section 161 edict that certain cases be forwarded to the Central Government with recommendations.

  • Multiple Avenues for Redress:

It is open to a person aggrieved with the finding or sentence of any court-martial to present a petition to the Central Government or the Chief of Naval Staff (section 162). Additionally, Section 163 enumerates that upon filing such a petition, the Central Government or the Chief of Naval Staff may issue any of the specified orders, excluding an order to enhance the sentence.

CONCLUSION AND SUGGESTIONS

To sum up, the Law Commission made the following recommendations:

  • The Army Act, 1950 be amended providing for the creation of an armed forces appellate tribunal which shall entertain appeals against the order of the courts-martial under the Army Act. The final orders of the court martial may be appealed against. The person in question may choose to use the first option under section 164(2) and subsequently approach the appellate tribunal, or they may choose to submit an appeal right away with the tribunal against the final decision, finding, or punishment of the courts-martial. The aggrieved party ought to make the decision. Indeed, it would be more appropriate to delete section 164(2) of the Army Act and the corresponding provision in the Air Force Act. Likewise, the provisions in the Navy Act relating to judicial review by the Judge Advocate General too may be removed.
  • The Navy and Air Force Acts may be so rectified as to adopt the appellate tribunal created by the Army Act for their purposes.

The Law Commission upholds the formulation of an appellate forum to entertain appeals against final orders issued by courts-martial. While the Army and Air Force Acts involve confirmation procedures for sentences or findings, the Navy Act dearth such provisions. Military law provisions that preside over the role of the Indian Army during the formulation of peace and war in the form of Rules, Statutes and Regulations. The legal and justice system of the army is entirely contrasting from the normal judicial system. The difference in the legal and judicial systems of the armed forces is to sustain discipline and avoid the prolonged absence of military officers and men from their duties. The appeals system is included in the civil system instead of the military justice system.

The Army Act, of 1950 has succeeded in prolonging the resemblance of order in the military for years since Independence.  The Army Act, of 1950 urgently needs to be amended according to the country’s needs.

REFERENCES

[1] Col. Prithi Pal Singh Bedi v. Union of India & Ors., [1982] 3 SCC 140

[2]  S.N. Mukherjee v. Union of India,(1990) 4 SCC 564

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