A CRITICAL ANALYSIS OF THE ARMY ACT, 1950

This article is written by Nivetha S of 10^th Semester of Sathyabama Institute of Science and Technology, Chennai, an intern under Legal Vidhiya.

ABSTRACT

The Indian Army’s organizational structure, code of conduct, and management are governed by the Army Act of 1950. The Act ensures the upkeep of efficiency, discipline, and order among the armed forces by providing the legal framework necessary for the army to operate. It outlines the authority, obligations, and responsibilities of military personnel, in addition to the procedures for internal army court cases and disciplinary actions. Key provisions pertaining to the army’s structure, the authority and powers granted to military personnel, maintaining discipline, enforcing military law, and creating military courts are all included in the summary of the Army Act of 1950. The Act also specifies how crimes are to be tried, how punishments are to be applied, and how officers and other ranks can appeal and seek redress. The Army Act of 1950 functions essentially as a comprehensive legal framework that regulates the actions and performance of the Indian Army, guaranteeing an organized and disciplined military environment for the purpose of defending the country.

KEYWORDS

Indian Army, Organization, Military Law, Discipline, Offenses, Appeal, Trial, Commanding officer, Armed Forces, Imprisonment, National Security.

INTRODUCTION

[1]In India, the armed forces have traditionally kept a low profile when it comes to public events and matters. There are a lot of unique customs and traditions in the military that are exclusive to members of the armed forces. One of these differences is a relatively distinct set of laws, norms, and legal customs. To put it simply, military officials’ actions are governed by a different body of law. The Army Act, Navy Act, and Air Force Act list most of these laws and provisions. Military law is a holdover from the British Raj, just like a lot of other laws and regulations. The 1857 uprising served as the backdrop for many of its early foundations. The Indian Army Act of 1911 underwent numerous changes following the end of British rule. The changes were implemented through the Army Act, which became operative on July 22, 1950. The Army Rules 1950 (later replaced by Army Rules 1954) came after this. The Army Act and the Army Rules were later amended once more in 1993. The other armed branches were subject to the same laws and regulations. Among them is the Air Force Act, which became operative on July 22, 1950. Furthermore, in compliance with Section 189 of the Air Force Act of 1950, the Air Force Rules of 1969 were established. There are 196 sections and XV chapters in the Army Act.

MILITARY JUSTICE IN INDIA:

The set of rules and guidelines known as Military Justice governs the behavior and authority of soldiers. To keep the nation’s soldiers under control, distinct legislative bodies exist. Different nations handle the armed forces in different ways. Certain nations have unique legislative bodies that oversee their armed forces. However, other nations have distinct legal systems and organizations that carry out the administration of justice. India’s military laws are the Air Force Act of 1950, the Navy Act of 1957, and the Army Act of 1950. The statutory provisions that apply to both men and women in uniform are provided by these laws. A few other acts pertain to various defense services. The Army Act serves as the model for all other acts, including the Border Security Force Act, the Coast Guard Act, the Indo-Tibetan Border Police Act, and numerous others. After the Indian uprising of 1857, the British developed military justice with the intention of enabling discipline in the Indian population. Additionally, it serves as the primary goal of the Air Force, Navy, and Indian Army Acts. One such organization that needs to make decisions quickly is the military, which cannot do so through lengthy deliberations. The military hierarchy is established in a timely manner.[2] Before the higher civil court, numerous cases are filed. It demonstrates how the justice system in the armed forces is unsatisfactory and not powerful enough to satisfy the dreams of men in uniform. The Military Laws of England are the source of India’s military justice system. It was determined that the military justice system was outdated and did not adhere to the liberal principles outlined in the Indian Constitution. It was necessary to strike a fair balance between the demands of military discipline and those of a democratic society. The Indian military justice system is derived from another nation, just like the country’s other laws. The military justice system in India has its roots in the military laws of England.

CRITICISM OF THE ACT:

• Lack of legal provisions pertaining to bail:

For a military person who has been arrested, there is currently no provision under the previously mentioned three service acts for bail. In essence, the officer facing charges is at the mercy of both the authority supervising his case and his commanding officer. Although the Supreme Court has outlined the criteria that should be followed when granting bail, these guidelines have not yet been extended to military personnel who are being detained. This kind of freedom in granting bail is essentially redundant because it is based purely on personal whims and is highly likely to be abused. This is why Article 21 of the Constitution provides a constitutional guarantee.[3]

• Trial’s inefficiency in Summary Court Martial:

This mechanism falls short of expectations and does not adhere to the necessary guidelines. This is due to a few factors, including the fact that—in an unusual move—the court is filling in for the prosecutor in certain of the roles that the prosecutor would typically fill in a conventional court of law. The fact that the accused is not granted the right to represent himself with the aid of counsel or any other comparable organization is another startling reality. This feature of a military trial serves as another illustration of how it manifestly violates the rights enshrined in Article 22 of our Constitution. Additionally, there are infractions under Article 21. In essence, the recommended course of action for this practice does not fit within the parameters of what is typically regarded as reasonable or fair. Because of all of this, the Supreme Court and several other high courts around the nation have frequently criticized the decisions made by SCMs. They have frequently been accused of being prejudiced, of imposing harsh penalties, and of flagrantly violating Article 14 of the Constitution.

• Lack of legal representation for the accused:

The lack of qualified legal officers and consuls for the accused is perhaps the most obvious flaw in the Indian military justice system. While the accused is permitted by military rules to retain the services of a defending officer or to hire a civilian attorney at his own expense, these rights are hardly ever used in practice. In other words, it is extremely uncommon for the accused to hire a private attorney on their own dime. Service officers are also far too frequently inexperienced and even unwilling to commit to representing the accused in court. Regarding the ongoing infrastructure that is in place, there is a lot that could be done better. Moreover, defense attorneys are not incentivized in any way to effectively assist and support the accused. The fact that this work is perceived as hazardous and has little potential for reward only serves to highlight the problem. As a result, cases that are brought before the court-martial receive insufficient defense, which is a clear violation of the principles set forth in Article 22 of the Constitution.

• The double jeopardy:

Article 20(2) of the Constitution explicitly enumerates the protections against the phenomenon of double jeopardy. Although it can be applied in a court-martial, it cannot be used to prevent a civil court from holding a second trial for the same offense. This means that, for instance, a person covered by the Air Force Act who has previously been tried and found guilty or not guilty by a court-martial may be tried again on the same charges by a court with civil jurisdiction.[4]

• Members of the court martial are not impartial:

A court-martial formed in accordance with military law serves the dual purpose of rendering a verdict and imposing a sentence. Experts in the field of military law believe that members frequently lack the necessary background, education, and experience to carry out this important duty. Critics also highlight the widespread occurrence of the extremely unsettling phenomenon known as “command influence.” This basically indicates that, in the process of administering justice, decision-making is not always impartial or independent. Some reports state that members receive comprehensive orders from the military’s decision-makers. Most officers are persuaded to act in a way that is intended for them because of the great risk involved in defying orders in the military.

DELEGATED LEGISLATION IN THE ARMY ACT, 1950:

On May 22, 1950, the Parliament of India passed the Army Act, 1950, which became operative on July 22, 1950. This Act unifies and modifies the laws pertaining to the regular Army’s government. The Indian military has traditionally kept a distance from politics and public affairs. Only military personnel observe a variety of distinctive customs and rituals within the armed forces. One of these distinctions is a primarily distinct set of laws, rules, and legal customs. A distinct body of military law governs the conduct of military officers. Many of these laws and clauses are listed in the Army Act. Like numerous other rules and laws, military law is a holdover from the British Raj. The 1857 rebellion served as the backdrop for many of its early foundations. With the nation freed from British rule, the Indian Army Act of 1911 underwent several modifications. These reforms were implemented on July 22, 1950, with the Army Act. That was followed by the Army Rules 1950 (later replaced by Army Rules 1954).

Sections Granting Executive Authority Under Army Act 1950 And Their Sort 191. Regulation-making authority:

• To implement the provisions of this Act, the Central Government may establish regulations.
• The dismissal, retirement, release, or removal of individuals under this Act from their position.
• The quantity and frequency of fines that Section 89 will impose.[5]
• The formation and operation of inquiry courts, the documentation of evidence summaries, and the taking of oaths or affirmations by these courts.
• The calling of court martials, their formation, and the selection of prosecutors for their trials.
• The suspension, adjournment, and sitting of courts martial.
• The process that courts martial must follow and the presence of attorneys during such trials.
• The affirmation, modification, and revocation of rulings and judgments rendered by courts martial, as well as appeals against them.
• The execution of judgments rendered by courts martial.
• The types of court orders that must be issued in accordance with this Act’s provisions regarding transportation, imprisonment, and martial law.
• The establishment of authorities to determine who, what, and how much provision should be made for dependents under Section 99, as well as the appropriate execution of such decisions.
• The order in which regular Army, Navy, and Air Force officers, junior commissioned officers, warrant officers, petty officers, and non-commissioned officers are ranked when working together.
• Any additional matter that this Act directs to be prescribed.
• Section 192: Authority to enact rules.

Other than the ones listed in Section 191, the Central Government may enact regulations for any or all the purposes of this Act.

• Section 193: Rules and regulations are published in the Gazette.

Every rule and regulation created in accordance with this Act must be published in the Official Gazette to be effective.[6]

IMPORTANT PROVISIONS UNDER THE ACT:

Section 2: The person to whom the Army Act, 1950, applies is specified. The individuals are:

• The army’s warrant officers, and junior commissioned officers make up the officers.
• Individuals registered under this act.
• Individuals who are members of the Indian Reserve Forces
• Members of the Indian Supplementary Reserve Forces are summoned to report for duty.
• officer in the Territorial Army.
• Individuals with an Army commission in the Indian Reserve Officers
• officers designated as members of the Indian Regular Reserve

Section 4: The act applies to specific forces under the central government. This section gives the central government the authority to apply the act’s provisions, with or without modification, to any force or individuals employed in the armed forces.

Section 6:  It contains unique guidelines pertaining to an officer’s rank. Under this section, any officer may be authorized by the Central Government to issue directives and to revoke them. This section also states that a person will be of lower rank than a non-commissioned officer if they are not the subject of this act and no directive is given regarding specific officers.

 Section 7: The Army Act of 1950 specifies the commanding officer.[7]

Section 8: A few officers are authorized to act, but only under specific circumstances.

 Section 9: It grants the central government the authority to designate any individual as being in active service.

 Section 10: The President may give to any individual:

• an officer’s commission, or
• as a junior member of the commission, or
• Anybody can be appointed to a regular army warrant officer position.

Section 11: A person who is not an Indian citizen may enlist in the regular army and a person from Nepal is not covered by this condition. Additionally, an exception may be made with the central government’s approval.

Section 12: Women are not permitted to work in the regular army unless they are employed in a department about which the central government is notified by the Official Gazette.

Section 13: The process before the enrolling officer is outlined.

Section 18: The president’s willingness determines who is eligible to hold the position.

Section 19: The Central Government has the authority to remove anyone from service.

Section 20:  It stipulates that the senior officer and the Army Staff possess equal authority.

Section 21: The central government is empowered to alter the fundamental rights of the individuals covered by this act.

Section 30:  It guarantees immunity from arrest of those present at courts martial. Lawyers are included in this section as well. This act states that a person receiving a summons to appear in court martial may be exempt from arrest under civil or revenue process while they are proceeding with, attending, or returning from the court martial.[8]

CASE LAWS:

Union Of India & Anr vs Charanjit S. Gill 

In the Indian Army, Charanjit S. Gill held the rank of commissioned officer. According to Section 18 of the Army Act, 1950, he was discharged for “stealing property of a comrade.” Gill filed a challenge against his termination in the Punjab and Haryana High Court, claiming that it was unjustified and infringed upon his fundamental rights. The Supreme Court was asked to decide whether Gill’s termination under Section 18 of the Army Act, 1950, was unjustified and infringed upon his fundamental rights. The Army Act, 1950, the Court reasoned, offers a comprehensive system for the regulation and discipline of the army. The Act stipulates a fair process, including the right to a hearing, before any disciplinary action can be taken, the Court observed. The Act stipulates a fair process, including the right to a hearing, before any disciplinary action is taken, as the Court pointed out. The Court concluded that Gill’s termination was the result of a fair hearing. The Act offers an appeals process, which Gill had not used, the Court further noted. The Army Act of 1950 is affirmed to be lawful and constitutional by this ruling. It emphasizes how crucial it is to keep the army disciplined and supports the Act as an equitable and all-encompassing method of doing so. The decision also emphasizes how crucial it is to use the Act’s appeal procedure.

 R. Viswan & Others vs Union of India 

 The petitioners were Indian Army personnel who had their employment terminated due to violations of Section 18 of the 1950 Army Act. Before being fired, they were not given a chance to present their case. The petitioners contested the legality of the Army Act, 1950, Section 18, which permits an armed forces member to be fired without a court-martial or investigation. The primary question in the case concerned the constitutionality of Section 18 of the Army Act, 1950, which permits the dismissal of an armed forces member without a court-martial or investigation. The Court reasoned that, because of the nature of their jobs, the armed forces need different laws and regulations than civilian life.[9] The Court further pointed out that because the clause includes an internal review and appeal process, it does not conflict with the natural justice principles. The Army Act of 1950 has been reaffirmed as constitutional by the ruling in this case. Additionally, it has made it clear that the Act complies with natural justice principles. This has made it possible for members of the armed forces to be fired for misconduct without having to go through a drawn-out court-martial or investigation procedure, which has helped to maintain discipline in the forces.

N.R. Ajwani vs Union of India

Major N.R. Ajwani, the appellant, served in the Indian Army. Section 18 of the Army Act, 1950, was used by the Western Command’s General Officer Commanding-in-Chief to terminate his employment. The Delhi High Court denied the appellant’s petition after he contested his dismissal there. After that, the appellant filed an appeal with the Indian Supreme Court. In this case, the question was whether the appellant was properly dismissed from service in accordance with Section 18 of the Army Act, 1950, and if he was afforded a fair chance to present his defense. As required by Section 18 of the Army Act, 1950, the Court reasoned that the appellant was given a reasonable opportunity to defend himself. The Court further reasoned that the appellant’s dismissal from service was lawful because it was carried out by the appropriate authority and in compliance with the guidelines established by the Army Act of 1950. The case established the legal principle that a dismissal from service under Section 18 of the Army Act, 1950, is lawful, provided it is carried out by the appropriate authority and in compliance with the Act’s prescribed procedure. A fair chance to defend oneself must also be granted to the dismissed individual.
 The significance of procedural justice in the termination of employment under the Army Act of 1950 is reaffirmed by this ruling. It highlights the need to provide the dismissed individual with a fair chance to present their case. And that the dismissal must be carried out by the appropriate authority in compliance with the steps outlined in the Act. Subsequent cases involving discharge from service under the Army Act of 1950 have been greatly impacted by this ruling.[10]

CONCLUSION:

To conclude, the legal framework of the Indian Army is primarily formed by the Army Act of 1950, which is a significant legislative act. The act, which was passed to regulate the military’s organization, discipline, and management, describes the rights, obligations, and responsibilities of those serving in the armed forces. It is essential to preserve efficiency, discipline, and order in the armed forces. The Act addresses a wide range of subjects, such as the army’s organization, the selection and ordination of officers, terms of service, upholding discipline, and the creation of different martial courts. It offers a thorough framework for court cases in the armed forces, guaranteeing a balance between upholding discipline and defending the rights of military members. The Army Act has aided India’s military force in becoming more proficient and productive over time. It has been modified to take into account new issues and bring it into compliance with modern requirements. The act is a means of maintaining the values of justice and equity within the armed forces as well as a guide for military personnel. The Army Act of 1950 continues to be a vital component in building a disciplined, competent, and responsive military institution committed to defending the security and interests of the country, even as India’s military continues to adjust to shifting geopolitical environments and new threats.

REFERENCES:

1. I pleaders, Army Act, 1950. (Nov 27, 2023.)

https://blog.ipleaders.in/need-know-army-act-navy-act-air-force-act/

• Get legal India, Army Act, 1950. (Nov 27, 2023.)

https://getlegalindia.com/army-act-1950/

• legal service India, Delegated legislation in Army act, 1950. (Nov 28, 2023.)

https://www.legalserviceindia.com/legal/article-9476-delegated-legislation-in-the-army-act-1950.html/

• Indian Kannon, The army act, , 1950. (Nov 28, 2023.)

https://indiankanoon.org/search/?formInput=the%20army%20act%2C%201950+doctypes:judgments/

---

[1] I pleaders, Army Act, 1950. (Nov 27, 2023.)

https://blog.ipleaders.in/need-know-army-act-navy-act-air-force-act/

[2] Get legal India, Army Act, 1950. (Nov 27, 2023.)

https://getlegalindia.com/army-act-1950/

[3] I pleaders, Army Act, 1950. (Nov 28, 2023.)

https://blog.ipleaders.in/need-know-army-act-navy-act-air-force-act/

[4] I pleaders, Army Act, 1950. (Nov 28, 2023.)

https://blog.ipleaders.in/need-know-army-act-navy-act-air-force-act/

[5] legal service India, Delegated legislation in Army act, 1950. (Nov 28, 2023.)

https://www.legalserviceindia.com/legal/article-9476-delegated-legislation-in-the-army-act-1950.html

[6] legal service India, Delegated legislation in Army act, 1950. (Nov 28, 2023.)

https://www.legalserviceindia.com/legal/article-9476-delegated-legislation-in-the-army-act-1950.html

[7] Get legal India, Army Act, 1950. (Nov 28, 2023.)

https://getlegalindia.com/army-act-1950/

[8] Get legal India, Army Act, 1950. (Nov 28, 2023.)

https://getlegalindia.com/army-act-1950/

[9]Indian Kannon, The army act, , 1950. (Nov 28, 2023.)

https://indiankanoon.org/search/?formInput=the%20army%20act%2C%201950+doctypes:judgments

[10] Indian Kannon, The army act, , 1950. (Nov 28, 2023.)

https://indiankanoon.org/search/?formInput=the%20army%20act%2C%201950+doctypes:judgments

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.