Maj Gen Nilendra
New Inter Services Law for the Military in India, Action in Haste

New Inter Services Law for the Military in India, Action in Haste

1. The successful passage of Inter-Services Organizations (Command, Control and Discipline) Bill, 2023 by the Parliament in its last session has been claimed as a major statutory step by the Union Government to make the theatre commands effective . The Bill after attaining the assent of the President formally comes to occupy a space in the India Code. It became the law governing the above category of military formations after its publication in the official Gazette on 15 Aug 2023 and coming into effect.

2 . Tri service establishments had been functioning in the military for over many decades. Examples can be cited of the National Defence Academy, Defence Services Staff College, College of Defence Management National Defence College in the training domain. These were logistical establishments like National Cadet Corps or Embarkation Headquarters. Such entities did not have any significand operational roles. Hence, their disciplinary and legal requirements were met by their placing them under geographical commands. The same approach was followed for Indian Peace keeping force deployed in SriLanka which functioned under the Pune based Southern Command.

3. The raising of Andaman and Nicobar Command with its Headquarters at Port Blair in Sep 2001 was the first major step towards setting up of integrated service commands in the India Armed Forces. Strategic Forces Command was soon to follow as the next entity towards creation of tri-service commands. There are also some tri-service organisations like the Defence Intelligence Agency, Defence Cyber Agency, Defence Space Agency, etc. A necessity was then felt for arming the operational commanders with the requisite administrative, financial and more importantly legal powers and authority over the men borne on the rolls of the units and formations under them. However, a law in the form of the new Act looks almost 22 years to be enacted. The dictionary meaning of the word ‘integrated’ is to join things so that they become one thing or work together. The word Tri Service in the context of military means the Army, Navy and the Act force.

4. Inter-service organizations, role or operations do not seem to have clear and definite definitions with any degree of legal precision. Various terms used are ‘combined’, ‘joint’, ‘integrated’, ‘tri-service’ and, ‘unified’ etc. These terms usually find mention in military literature. In operational context too. An exercise to clothe them with statutory sanctity is yet to be undertaken. The new law has used two terms, vis ‘inter-services organisations’ and ‘joint services command’ without defining them.

5. The entire exercise leading to the enactment of the new law apparently seems to have been carried out in haste. The legislative efforts did not see any worthwhile discussion during its passage in the two houses of parliament. It was also not deliberated upon by the Parliamentary Committee and nor were the comments of the domain experts or general public solicited. Such an approach would have denuded the law the benefits of requisite scrutiny while it was on the drawing board.

6. The statement of objects and reasons are often called a key to the concerned legislation. These in relation to the ISO Act stated that its purpose is to facilitate maintenance of proper discipline and proper discharge of their duties by the service personnel. The use of prefix ‘proper’ to discipline may be a trifle confusing if read with Article 33 of the Constitution Further, the above statements indicates taken care had been taken not to disturb “the unique service conditions” or ‘amending the service Acts’ . Undoubtedly the twin objectives are laudatory. But does the new law appear statutorily capable to achieve these objectives?

7. The statement of objects and reasons accompanying the Act (ISO) procced to underline the need to empower heads of inter service organizations to exercise effective discipline on all persons of the three services. However, such a dream appears to be illusory because of inherent specific legal regimes of the Army, Navy and Air Force. Their lack of uniformity in legal architecture may present dissimilar situations in tri-service context. This gives a meaningful scope to argue and project its defence. To illustrate, only Army has the system of Summary Courts Martial. Navy Act carries sections allowing their JAG to carry out a judicial review of the court’s martial verdict. Air Force law does not provide for any of the above. Such variations may at some stage draw dissatisfaction and criticism, to illustrate, in matters of conviction, the award of sentences and their executions etc.

8. The Act in its present form calls for a revisit of a few glaring discrepancies and notable omissions. To illustrate, ‘Chief of Defence Staff’ has been included in the ‘definitions’ but his role, powers and functions etc. are not mentioned. Such a position is contrary to the approach adopted in the Army Act. COAS stands defined under Sec 3 (iv) of the Army Act and status. The rank of the CDS has been left undefined. This may create legally unavoidable situations in furture in matters of inter-action with other service heads or even commanders -in-chief. The terms officer commanding the regular Army. ‘Commander-in-Chief’, ‘Commanding Officer’ and ‘Officer in Command’ have all been defined in Section 3 of the new Act and their powers indicated in Sec 4(2), 5 and 8. Thus, the authority of CDS over his subordinate commanders has little statutory base. Another major anomaly has been created due to the new Act using for key terms like ‘command’, ‘control’, ‘discipline’, ‘joint services command’ and ‘force’ without defining them.

9. Further, complication is compounded by the use of words ‘actual command’ as appearing in Sec 3 (1) (d). It may give rise to a contingency that an officer in ‘command’ is not in ‘actual command’. It would run contrary to the centuries old practice of the soldiers (including officers) being attached to other units or formations on disciplinary grounds. In those situations, they cannot be viewed to be under commanding officers ‘in actual command’. However, such a notion is contradicted by the long title of the statute which has words in relation to service personnel who are serving under or attached to his command emphasis added. The two opposing meanings would require to be resolved. Otherwise, such a position may result in a charge for an offence of ‘disobedience of a lawful command’ running into a challenge by an accused and cannot be ruled out.

10. The President of India is the Supreme Commander of the Armed Forces. As such, the exalted office of President finds mention in the military law at a number of places like Section 18 of the Army Act. However, the ISO Act is bereft of any reference to the President.

11. The term ‘inter services organization’ has been defined under Sec 2 (1) (g) of the Act to mean a body of troops including a joint services command consisting of persons subject to the Air Force Act, Army Act or the Navy Act, as the case may be. This is an inclusive definition but not an exhaustive one. It appears baffling why the term ‘joint services command’ (JSC) has remained undefined? Be that as it may, by implication, a joint services command is superior and a higher body than an ‘inter services organization’. This is so because a JSC is commanded by a commander in chief (Sec 3(c) whereas an ISO would be under an ‘officer in Command’ (Sec 2(g).

12. The preamble to the Act professes that it is meant to empower the Commander-in-chief or the officer in Command of Inter services Organizations in respect of service personnel who are subject to the Act Force Act, 1950, the Army Act 1950 and the Navy Act, 1957 who are serving under or attached to his command for the maintenance of discipline and proper discharge of their duties and for matters connected there with or incidental thereto. Viewed in that context, if any portion of the Act or a matter outside does not contribute to such empowerment, the same should does not need a to be mentioned in the Act.

13. The service Acts contain specific provisions about junior commissioned officers, warrant officers, petty officers, non-commissioned officers and enrolled persons, etc. These relate to mode of their entry, privileges, service tenures, disciplinary sanctions and laid down manner of seeking reliefs by them, etc. Strangely the ISO Act has chosen to ignore them.

14. Another glaring omission is of service chiefs like ‘Chief of the Army Staff’ from the text of the new law. Such an absence negates the provisions of the Army Act releasing to redressal of grievances, grant of maintenance and relief to a person of that service who is part of an inter service organization. Who would exercise the powers of COAS and CNS in their cases?

15. COAS has been vested with distinct powers under the statute. To illustrate, dismissal or removal from service of any person other than an officer (Sec 20(2), reduction to a lower grade or rank or the ranks any warrant officer or any non-commissioned officer (Sec 20 (2); decision on any complaint of any aggrieved person other than officer (Sec 26), etc. This authority is nowhere to be seen in the ISO Act. Hence, the authority of COAS may appear questionable with regard to relevant aspects like control on tenure (Sec 20), redress of grievances (Sec 26), specification (Sec 84), action as superior military authority (Sec 88), directions on C of I (Sec 90) (h), Pay & allowances of prisoner of war (Sec 96), convening of General Court Martial (GCM) (Sec 109), and numerous other provisions . Where he so decides in writing, using his powers under Army Rule 184 he is vested with a power to order that the copies and statements forming part of a court of inquiring are not to be furnished to person even though these may have a bearing on his character or military reputation. Requirement of Such a clause may, of course, arise in very special circumstances eg national security. Would such an authority be exercisable under the new law, and if so by whom?

16. Under the earlier scheme, COAS had a distinct role with regard to the conversing of a GCM or Summary General Court Martial (SGCM). He was not empowered to confirm death sentence which was within the domain of the Central Government. Further, all cases of sentence passed on officers of dismissal or higher, and any sentence to an officer who holds or had held the rank of Colonel could be confirmed only by the COAS. The ISO Act does not contain any provisions in this regard. What then would be the disposal of cases relating to ISOs? Their cases cannot be forwarded to their service heads because superintendence of the ISO shall vest in the Central Government CDS is not armed with any authority in this regard. The law is silent as to whom would the disciplinary matters travel beyond the Commander in Chief?

17. The persons affected by, or being proceeded against, under above provisions shall stand deprived of requisite scrutiny and/or relief by the COAS or at his office.

18. Two major short comings of the new law are their incapacity to bolster a soldier’s self-respect and confidence. The self-esteem would be hurt due to absence of inclusion his of (or her) status in the proposed Act. Further, the person may carry a feeling of hurt and the confidence may take a downslide because of absence of a right to seek remedy or relief even if he has reasons to harbor genuine grievances. Whom would he turn to? Would it be the chief of the service to which he belongs (but doesn’t serve under him) or to the theatre commander (where the Chief of Defence Staff does not hold authority to provide a redressal.)?

19. Two key legal tools indispensable for maintenance of discipline in the Army are courts of inquiry, which is meant to be utilized for investigations, and secondly courts martial that are convened for violators of the stern military code. There are clear cut provisions in the service Acts about the purposes of these two bodies mentioning the composition, utility as well as the eligibility and disqualifications of persons to serve as their members. Their powers are also duly indicated. However, the text of the new Act has not dealt with this issue. Resultantly it would create doubts as to how a matter relating to a mixed force forming part of an ISO would be legal dealt with, and also if the final decision would inspire confidence amongst the rank and file for its impartiality and fairly treatment? Would an accused facing trial of the court martial having majority of the members belonging to other two service be confident of getting just treatment on being dealt by an all Army Court?

20. Usually all statutory legislations carry rule making powers which are vested in the Government at the Union, or the State, as the case may be. The specific reach and parameters of such powers are also enumerated in Army Act Sec 191 (2). Ironically, the new Act empowers the Central Government with such powers but does so without spelling out contours of such authority by merely providing, “the central government may make rules for the purposes of carrying out the provisions of this Act. " Such an imprecise wording carries the potential of legal mischief or the risk of being held ultra vires.

21. Complication may be also arise in matters of seeking remedy under the Armed Forces Tribunal Act, 2007 (Act No 55 of 2007) till such the proposed Act is suitably linked with the AFT Act.

22. Despite the tri service formations existing in India for over two decades, little progress has been made in drafting a Uniform Code of Military Justice. Such a code has been able to effectively provide a common and seamless legal regime in the USA for three wings of their defence forces who no longer require separate legislations for them. A uniform code encompassing issues like women entry, Agniveer mode of induction, cyber-crimes, environmental norms and disregard of human rights and use of social media etc. is the need of the hour.

23. In tune with increasing strategic clout that India is now poised to wield by transnational deployments may soon become common place. In the wake of QUAD alliances, hostile posture of the Chinese, and having regard to the emergence of AI, introduction of other sophisticated armaments, use of outer space and a contingency warranting recourse to use of greater lethal force may among other implications may pose unprecedented issues about culpability and jurisdiction of domestic courts. Such a possibility may warrant an initiative capable of exhibiting catapulting the country’s ability to maintain a disciplined combat effective force. The ability expects it to show requisite adherence to rule of law in the current eco-system of security imperatives. The same would depict confidence of securing a profile of being second to none.

24. What are the pressing challenges at this juncture? The delay in disposal of pending disciplinary cases is often seen coupled with a diverse variety of military matters being taken to the Supreme Court after their cognizance. It underlines a need for a thorough overhaul of military legal system. The figures about number of AFT decisions being upturned by the Supreme Court is also not insignificant. Such a state calls for urgent measures for reform of military legal system. The situation is compounded by a higher number of suicide cases on one hand, and reports of military’s high handedness in the cases pertaining to areas where provisions of Armed Forces (Special Powers) Act stand invoked.

25. With the strength of over 1.4 million active personnel and a total budget of INR 5.94 trillion, Indian armed forces are ranked world’s second largest military force. They are tasked to unfailingly vigil about 15200 KMs of land boundary and more than 7000 KMs of maritime borders. The national aspirations coupled with a geostrategic vision compatible with its third largest economy would expect its soldiers to be led by legally flawless and democratically robust laws.

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