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

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

1. The successful passage of Inter-Service Organization (Command and Control) Bill, 2023 by the Parliament in its last session is a major statutory step by the Union Government to make the theatre commands effective1. The Bill after attaining the assent of the President would formally become the law governing the above category of military formations.

2. The statement of objects and reasons related to the ISO Bill have indicated that its purpose is to facilitate maintenance of proper discipline and proper discharge of their duties by the service personnel. Further, care had been taken not to disturb “the unique service conditions” or 'amending the service Acts'. Undoubtedly the twin objective are laudatory. But does the new law appear capable to achieve these?

3. The statement of objects and reasons accompanying the Bill 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 is unlikely to be attained because of peculiar specific legal regimes of the Army, Navy and Air Force. Their lack of uniformity may present dissimilar situations in tri-service context. To illustrate, only Army has the system of Summary Court 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 draw protests and criticism in matters of conviction and award of sentences etc.

4. The proposed 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. ‘Commander-in-Chief’, ‘Commanding Officer’ and ‘Officer in Command’ who all have been defined in Section 3 of the Bill and their powers indicated in Sec 4(2), (5) and 8. Another difficulty is felt when the Bill speaks about key terms like ‘command’, ‘control’, ‘discipline’, ‘joint services command’ and ‘force’ without defining them. Further, complication stands compounded by the use of words like ‘actual command’ as appearing in ‘Sec 3 (1) (d). The likelihood of 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.  

5. 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 Bill has completely left out any reference to the President.

6. The term ‘inter services organization’ has been defined under Sec 2 (1) (g) of the Bill 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. However, it appears baffling why the term ‘joint services command (JSC) has remained undefined? 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) where as an ISO would be under an ‘officer in Command (Sec 2(g).

7. The preamble to the Bill 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 therewith or incidental thereto. Viewed in that context, if any portion of the Bill or a matter outside does not contribute to such empowerment, the same should need a relook.                   

8. 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 manner of seeking reliefs etc. Strangely the ISO Bill has chosen to ignore them.

9. Another glaring omission is of services chiefs like Chief of the Army Staff. 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?

10. COAS stands defined under Sec 3 (v) of the Army Act. The term means the officer commanding the regular Army. 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. are nowhere to be seen in the ISO Bill. 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 under Sec 84, action as Superior Military Authority (Sec 88), directions on C of (Sec 90) (h), Pay & allowances of prisoner of war (Sec 96), convening of GCM (Sec 109), and numerous other provisions2. 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. Such a clause would, of course, be invoked in very special circumstances e.g. national security.     

11. Under the earlier scheme, COAS had a distinct role with regard to the presiding of a General Court Martial (GCM) or Summary General Court Martial (SGCM). He was not empowered to conform 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 holds or had held the rank of Colonel could be confirmed only by the COAS. The ISO Bill 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. However, the law is silent as to whom would the disciplinary matters travel beyond the Commander in Chief.

12. 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?

13. Two major short comings of the new law are its incapacity to bolster a soldier’s self-respect and confidence. The self-esteem would be hurt due to absence of inclusion of his status in the proposed Act. He may carry a feeling of hurt and the confidence may take a downslide because of absence of a right to seek remedy for 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) or to the theatre commander (where the Chief of Defence Staff does not hold authority to provide a redressal.)?

14. Two key legal tools helpful 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 composition of these two bodies mentioning the, eligibility and disqualifications to serve as their members. Their powers are also duly mentioned. However, the text of the proposed Act has not dealt with this issue. Resultantly it would create doubts whether a matter relating to a mixed force functioning under the ISO can be dealt by an all Army Court?

15. 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 proposed 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 working carries the potential of legal mischief or the risk of being held ultra vires.

16. Despite the tri service formations existing in India for over two decades, little has been done to frame 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 carry separate legislations for them.

17.  What are the pressing challenges at this juncture? The delay in disposal of pending disciplinary cases coupled with a substantial number of Armed Forces decision being upturned by the Supreme Court underlines a need for a thorough overhaul of military legal system. The figures about number of AFT decisions upturned by the Supreme Court is also not insignificant. Such a state calls for urgent measures to reform military legal system, particularly having regard to noticeable 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.

1The Bill was passed by the Lok Sabha on 4 Aug 2023 and by the Rajya Sabha on 8 Aug 2023

2Sections 109, 112, 162, 164, 165 and 182.

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