Military Laws Should it be a part of Legal Education

Manish Arora

Ours is a nation founded on core values of democracy, secularism and peaceful international co-existence, and has held firm taking all sorts of criticism and oppositions - both internal and external in its stride earning all kinds of enemies. It has to be, therefore, zealously defended against the onslaughts of myriad kind. It is, thus, not surprising that our Constitution casts upon every citizen a fundamental duty to “defend the country and render national service when called upon to do so”. There have been times, and, no matter how hard we try to avoid, there will be occasions when plain brute force will have to be summoned in defence of the country. And it is no secret that in such times the strongest pillar to hold onto has always been the armed forces. However, what needs never to be lost sight of is the undeniable fact that even when it is about using brute force laws have to be respected, be they peacetime laws as applicable to conflict situations or the international conventions pertaining to wars. We, in India, have known since time immemorial that no battle is fought without laws, for even our ancient scriptures lay down laws of war quite clearly. Why else would Lord Krishna have to hide the sun and then make it reappear to have Jaidrath slain by Arjun, if it were not for the express wartime law of those days that the battle had to stop at sunset and nobody could be killed thenafter. Arjun could not have killed Jaidrath. Laws have always been respected even in wartime, for if they are disrespected the war turns unjust and popular support wears away sooner or later. Military laws are, however, not only concerned with wartime alone, but also deal with peacetime violations by military personnel, indiscipline and the like. The Military Law and Regulations spells out rules and procedures for the investigation, prosecution, and punishment of military offences and crimes in the armed forces deriving its authority from the Constitution, the Army Act of 1954, the Air Force Act of 1950, the Navy Act of 1957, the Border Security Force Act of 1968 and other Para-Military Laws.

The strategical spread of India in relation to continental Asia as well as the Indian Ocean together with apprehension of internal and external unrest makes it imperative for us to maintain a credible land, air and maritime force to ensure the safety of our borders and all that they hold within. Besides, we are constantly at war with destructive ideologies that inspire militancy and terrorism, which further adds to the necessity of having our forces fit and kicking at all times.

Law’s purpose is not merely to resolve disputes but creation of a dispute free society as far as possible. No society or civilization can appear and exist without certain corpus of law. Military regime is not an exception. Article 33 (which was extensively amended in 1984), of the Constitution empowers Parliament to restrict or abrogate the application of fundamental rights in relation to armed forces, para military forces, the police etc. Its operation is dependent on Parliamentary legislation. Such legislation may restrict the operation of any fundamental right e.g., equality, freedom of expression or association, personal liberty etc. Articles 136(2) and 227(4) exclude the appellate jurisdiction of the Supreme Court and the supervisory jurisdiction in relation to Court Martial. But they do not exclude the operation of Articles 32 and 226. Thus the general principles for grant of relief in writ and grounds for interference, as generally applicable to quasi-judicial proceedings, apply in relation to Courts Martial also. The High Courts and the Supreme Court may interfere if the sentence imposed by the Courts Martial is disproportionate to the crime or unjust. The Army Act, the Air Force Act and the Navy Act consolidates and amends the law relating to the government of regular Army, Air Force and Indian Navy respectively.

Before the laws are actually followed they have to be effectively communicated to the masses.

Law is a concept like theology or religion with social purpose. It cannot be developed and applied mechanically and demands a broad social vision, which comes from nothing but deep thought and understanding of social norms in fitting perspective of its past, present and future. To do it one needs to be quite an expert in the art of abstraction, which is different from application. Universities are universally accepted as the most appropriate place for such a learning. Their main objective is the development of the science of law in the service of society. This is the reason for incorporation of some of the basic civil as well as criminal laws e.g., law of contracts, law of evidence, criminal law, constitutional law, administrative law, international law etc with its application, in the very initial phase of getting into the field of law. With the advancement of science and technology and also the growing awareness, cyber law, environmental law, corporate law, trademarks, copyright and patents have been introduced.

Now the need is also to incorporate the military law. Experts of military law are expected to assume the role of training personnel. Services of Military law advisers can be utilised to advise and instruct the commanders besides participating in general dissemination activities. Military legal advisers can be gainfully employed in translating International Humanitarian Law instruments in domestic languages and drafting military manuals. They may also be assigned to gather relevant information and provide legal opinion with regard to allegations about breaches. Science has transformed the world in almost all areas of society. It follows that the corresponding economic, political, demographic and technological changes would also affect the military factor and the law relating to it. In fact, the demonstrated relationship between the advancement of science and technology and defence is so strong that the future of warfare has been revolutionised. It has changed radically due to the advent of information revolution. Thus the need of the hour is also to impart knowledge of military law to the students for steering into the next millennium.

The Army Institute of Law (AIL), Mohali established in 1999 under the aegis of Army Welfare Education Society (AWES) runs 5-year degree course in law after 10+2, primarily for the wards of serving and ex-servicemen of Army but makes available 20 percent seats for the civilians. Social science subjects viz. Literature, Sociology, Economics, Political Science and History are taught during the 10 semesters which is advantageous in the study of law and prepares the students on strong footing for undertaking professional legal education.

The military personnel must not be confined to the knowledge of military training only. They must be made aware of military laws and other civil laws affecting their rights and duties e.g., the law relating to government contracts, service laws relating to discharge and termination of services, Intellectual property rights governing the patents to the defence inventions, cyber laws etc. With the use of computers and modern communications, it has become increasingly important to ensure acquisition and security of information. The rapid growth of technologies to acquire and store information and the promise of improved command and control have generated the idea of “dominance in the field of information’. The information revolution and its related technologies are affecting all the pillars of national power i.e., political, military and economic thereby creating the need for the most updated law to deal with the most recent developments.

India with its vast talented scientific population needs to overcome potential vulnerabilities, tame the microchip, incorporate the necessary provisions of law and use it to sustain tactical and strategic advantages that are available in information warfare, nuclear warfare, satellite technology, missile technology, chemical and biological warfare, high altitude warfare, desert, air and naval, mobile warfares, underwater technology and cyber warfare. Steps must also be taken to educate its personnel on human rights awareness and correct procedures to be followed. Human rights awareness must be promoted by running various training courses at the level of pre-commission training, young officers’ courses and training courses at every level including senior officer courses. Situational courses must run in counter insurgency areas taking into consideration on-the spot factors that could vary from one situation to another. Army must deal with human rights violation with a very heavy hand and where army person is found guilty he must be awarded severe punishment. Acts and omissions of military nature are to be dealt by military justice system. A person in uniform is liable under the Army/Air Force/Navy Acts as the local law, which is applicable to all citizens. There are adequate provisions to resolve the jurisdictional conflict between the Court Martial and criminal court. System of Court Martial does not have the benefit of precedents and there is no appellate tribunal to provide personal hearing against a Court Martial verdict. Thus a military lawyer need to be well versed in other laws applicable to the personnel in uniform.

National interests demand close rapport and understanding between the statesman and the soldier. The four important ingredients of a functioning democracy — free and fair elections, an independent judiciary, a free press and an apolitical army — have taken deep roots in the Indian system. The Acts relating to the armed forces must be made self sufficient by incorporating the relevant provisions from certain other related enactments, bridge the gap between military laws and civil laws as far as possible in the matter of punishments for offences and to adapt the existing provisions to suit the new constitutional setup and present day requirements.