New Inter Services Law For The Military In India: Action In Haste

Tri service establishments have been part of the military for long. National Defence Academy, Defence Services Staff College, College of Defence Management and National Defence College exist in the training domain. Logistical establishments function like National Cadet Corps or Embarkation Headquarters. Devoid of any operational roles, their disciplinary and legal requirements were met by the geographical commands. Indian Peace Keeping Force deployed in Sri Lanka had likewise functioned under the Pune based Southern Command.

The raising of Andaman and Nicobar Command with its Headquarters at Port Blair in Sep 2001 was the first integrated service command. Strategic Forces Command came next, followed by Defence Intelligence, Cyber and Space Agencies. A necessity then arose for arming the operational commanders with the requisite administrative, financial, legal powers and authority. The new Act took 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 Air Force. Military uses words like ‘combined’, ‘joint’, ‘integrated’, ‘tri-service’ and, ‘unified’ etc. They have little statutory precision and even the new law does not illuminate. The term ‘inter services organization’ is 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 but not an exhaustive definition. The term ‘joint services command’ (JSC) has remained undefined? By implication, a joint services command is to an ‘inter services organization’ because it is commanded by a commander in chief (Sec 3(c) whereas an ISO would be under an ‘officer in Command’ (Sec 2(g).

The exercise for the enactment of the new law seems to have been hastily done. The legislative efforts didn’t see any worthwhile discussion in the parliament. It did not come before the Parliamentary Committee.

The statement of objects and reasons of the ISO Act state its purpose as facilitating maintenance of discipline and proper discharge of their duties by the service personnel^[2]. It claims to have not disturbed “the unique service conditions” or ‘amending the service Acts’^[3]. One may wonder if the twin objectives would be actually attained! The objects and reasons underline the need to empower heads of inter service organizations to exercise ‘effective’ discipline on all persons of the three services. Such a dream may be illusory because of inherent dissimilar provisions in the three services. To illustrate, only Army holds Summary Courts Martial. Navy Act allows their JAG to judicially review court’s martial verdict. Air Force law does not provide the two. Such variations may appear discriminatory in matters of conviction, award of sentences and their executions, etc.

The Act shows a few glaring discrepancies and omissions. To illustrate, ‘Chief of Defence Staff’ has been included in the ‘definitions’ but without mention of his stature, rank, powers and functions etc. Such a position is contrary to the approach adopted in the Army Act were COAS stands defined under Sec 3 (iv). The anomaly may lead to unavoidable situations in matters of inter-action with other service heads or with commanders -in-chief. The terms ‘officer commanding the regular Army’ ‘Commander-in-Chief’, ‘Commanding Officer’ and ‘Officer in Command’ have been defined in Section 3 of the new Act with their powers indicated in Sec 4(2), 5 and 8. The authority of CDS over his subordinate commanders remains unattended. The new Act has used key terms like ‘command’, ‘control’, ‘discipline’, ‘joint services command’ and ‘force’ without defining them.

The President of India as the Supreme Commander finds mention in the military law at a number of places like Section 18 of the Army Act but has been ignored in the ISO Act. Another omission is of service chiefs like ‘Chief of the Army Staff’ in the new law. COAS holds distinct powers under the Army Act. To illustrate, dismissal or removal from service of any person other than an officer (Sec 20(2), bringing down in rank any warrant officer or non-commissioned officer (Sec 20 (2); disposal of complaints by aggrieved persons below officers (Sec 26), specification (Sec 84), action as superior military authority (Sec 88), directions on C of I (Sec 90) (h), grant of maintenance, Pay & allowances of prisoner of war (Sec 96), convening of General Court Martial (GCM) (Sec 109), etc.^[4] Would such powers be exercisable under the new law, and if so by whom? Such matters would not travel to their service heads because superintendence of the ISO shall vest in the Central Government. CDS is not armed with any powers in this regard. The law is silent as to whom would the disciplinary matters travel beyond the Commander in Chief? The affected persons shall stand deprived of requisite scrutiny and/or relief by the COAS or at his office.

The service Acts contain specific provisions about junior commissioned officers, warrant officers, petty officers, non-commissioned officers and enrolled persons, etc. in matters of their induction, service tenures, disciplinary sanctions and seeking reliefs etc. The ISO Act has chosen to ignore them.

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 of his (or her) status in the proposed Act. The military men may carry a feeling of hurt and low confidence due to absence of a right to seek remedy or relief even on 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)?

Courts of inquiry, meant to be utilized for investigations, and courts martial are convened for violators of the stern military code. There are clear cut provisions in the service Acts about the purposes of these two forums, composition, eligibility, disqualifications and powers of persons to serve as their members. The new Act has not dealt with this matter which may raise doubts how issues relating to a mixed force under an ISO would be dealt with. Would the final decision inspire confidence amongst the rank and file for its impartiality and fair treatment? Would an accused facing trial by a court martial having majority of the members belonging to other two services be confident of getting just treatment on being dealt by an all Army Court?

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 enumerated in Army Act Sec 191 (2). The new Act empowers the Central Government with such powers but does so without spelling out contours of such authority^[5].

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

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.

A uniform code encompassing issues like women entry, AgniVeer mode of induction, cyber-crimes, environmental norms, disregard of human rights and use of social media etc. is the need of the hour.

India is now poised to wield increasing strategic clout. Transnational deployments may soon become common place in the wake of QUAD alliances, hostile posture by our neighbors. The emergence of AI, sophisticated armaments, and use of outer space are new development. Use of greater lethal force may raise unprecedented issues about culpability of offenders and jurisdiction of domestic courts. An initiative capable of exhibiting the country’s ability to maintain a disciplined combat force effective with a matching adherence to rule of law may be expected from military leadership.

The pressing challenges call for expedient disposal of pending disciplinary cases. A diverse variety of military matters are being taken to the constitutional Courts. The number of AFT decisions being upturned by the Supreme Court are not insignificant in number. The problem is compounded by increase in suicide cases on one hand, and reports of military’s alleged disregard of human rights in areas with Armed Forces (Special Powers) Act invoked. Urgent measures are warranted for reform of military legal system. The defence forces numbering over 1.4 million and budget of INR 5.94 trillion are ranked worlds second largest. They unfailingly vigil about 15200 KMs of land boundary and 7000 KMs maritime border. 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.

The author is an AVSM, VSM (Retd) Officer and also Director of Lex Consilium Foundation