ANALYSIS ON 169TH LAW COMMISSION REPORT- AMENDMENT OF ARMY, NAVY AND AIR FORCE ACT

This article is written by Padala Navya Bhanu of 3^rd Semester of DSNLU, Visakhapatnam, an intern under Legal Vidhiya

ABSTRACT

This article provides a comprehensive analysis of the 169th Law Commission report, focusing on the proposed amendments to the Army, Navy, and Air Force Acts. The examination begins by outlining the historical development of the Army, Navy, and Air Force Acts, highlighting their foundational role in governing the armed forces. The Law Commission’s 169th report is then scrutinized, offering insights into the specific amendments it proposes and the underlying rationale for these changes. The article explores the potential impact of these amendments on the legal landscape governing the armed forces, considering both practical implications and broader implications for military justice. The analysis also addresses potential controversies or challenges associated with the proposed amendments, providing a balanced view of the implications on military discipline, justice, and overall governance.

In conclusion, the article summarizes key findings and insights derived from the analysis of the 169th Law Commission report on the Amendment of the Army, Navy, and Air Force Acts. It underscores the significance of adapting military laws to meet contemporary demands while acknowledging potential controversies or debates surrounding the proposed amendments. Overall, the analysis contributes to a nuanced understanding of the evolving legal landscape governing India’s armed forces.

KEYWORDS

169th Law Commission Report, Amendment of Army, Navy, and Air Force Acts, Military law, Armed Forces, Legal framework, Military Justice, Law Commission of India, M.C. Setalvad, First Law Commission Report, Constitutional principles, Military discipline, Justice and fairness, Legal reforms, Legal landscape, Suo motu, Court-martial, Historical development, Indian Army, Indian Navy, Indian Air Force, Court martial procedures, Judicial review, Supreme Court of India, Lt. Col. Prithi Pal Singh’s case, S.N. Mukherjee’s case, Statutory provisions, Army Act, 1950, Navy Act, 1957, Air Force Act Observations, Recommendations, Service Tribunal, Appellate Tribunal, Judicial independence, Constitutional rights, Discipline and rights balance, Legal challenges, Constitutional principles, Tribunal composition, Service-related disputes, Writ jurisdiction, Article 226, Fundamental rights, Balance of military discipline, Transparency in legal system, Independence and accountability, Legal amendments, Military governance, Constitutional values, Stakeholder confidence

INTRODUCTION

Established in 1955, the Law Commission of India holds a prominent position as a statutory body entrusted with the responsibility of recommending legal reforms. Throughout its history, the Commission has been a critical player in shaping and modernizing India’s legal framework. The significance of Law Commission reports lies in their role as comprehensive documents that analyze existing laws, identify lacunae, and propose reforms in alignment with societal changes and contemporary needs.

The inaugural report of the Law Commission, the First Law Commission Report of 1955, holds particular historical importance. Chaired by M.C. Setalvad, the first Law Commission played a crucial role in systematically reviewing and suggesting reforms for Indian laws[1]. This landmark report addressed various legal issues, laying the foundation for subsequent legal reforms in the country. The recommendations of the First Law Commission Report provided a roadmap for refining and updating legislation, influencing the trajectory of legal development in post-independence India. By emphasizing the importance of codification, the report aimed to bring clarity and coherence to the legal landscape, marking the beginning of a series of reports that would continue to shape the evolution of Indian law.

SIGNIFICANCE OF THE 169^TH LAW COMMISSION REPORT

The 169th Law Commission Report was published under the chairmanship of Mr. Justice B.P. Jeevan Reddy (Retd.). The 169th Law Commission Report holds significant importance as it addresses critical issues pertaining to the amendment of the Army, Navy, and Air Force Acts in India. The report, through its recommendations, seeks to modernize and enhance the legal framework governing the armed forces, reflecting the contemporary needs and challenges faced by the military.

Firstly, the report’s significance lies in its meticulous examination of the existing legal provisions related to the armed forces. By delving into the historical context and evolution of the Army, Navy, and Air Force Acts, the report provides a comprehensive understanding of the legislative framework. This thorough analysis sets the stage for informed recommendations, ensuring that the proposed amendments are not only relevant but also aligned with the constitutional principles governing military justice.

Secondly, the 169th Law Commission Report plays a crucial role in addressing the practical aspects of military governance. As the armed forces operate in a unique and specialized environment, the report’s recommendations aim to strike a balance between maintaining discipline and upholding the rights of military personnel. This balance is crucial for the effective functioning of the armed forces and ensuring that legal provisions align with the principles of justice and fairness.

In essence, the 169th Law Commission Report stands as a significant document that contributes to the ongoing discourse on military law and governance in India. Its recommendations have the potential to shape legislative amendments, fostering a legal framework that is not only responsive to contemporary challenges but also respects the principles of justice and equity within the unique context of the armed forces.

ANALYSIS OF THE REPORT

INTRODUCTION

Objective:

This report, initiated suo motu, aims to uphold discipline in the Armed Forces while respecting the dignity of individuals. The primary concern is to ensure that the brightest and bravest individuals do not refrain from serving due to a lack of justice mechanisms or fear of unjust punishment. Additionally, the report strives to prevent disproportionate punishments and advocates for a more humane and dynamic military law in alignment with the practices of developed nations.

Soldiers lead challenging lives, often away from their families, relying on pride and sacrifice for the defense of their country. Denying them access to justice available to other citizens is deemed inappropriate. It is emphasized that military discipline should not solely rely on domination and blind obedience; superiors must demonstrate competence to earn respect. Many democratic nations have reformed their military laws to safeguard against arbitrary actions. Despite the relatively small number of individuals affected and their voluntary submission to the existing system, the report underscores the need for military law reform[2]. The higher standards in the Armed Forces not only ensure a capable fighting force but also command public respect. Justice and discipline are viewed as interconnected.

Considerations :

It is noted that interference by High Courts and the Supreme Court with court martial decisions is not entirely excluded. To ensure consistency and enhance discipline, the report suggests creating a single appellate tribunal for appeals against court martial findings. The Army Act and Air Force Act, rooted in British legislation from 1949-50, lack the advancements seen in the United Kingdom’s military law. The report seeks to rectify this by proposing reforms in certain aspects.

INDIAN MILITARY LAW – ITS ORIGIN AND EXTENT

(I) INTRODUCTION

Origin of the Indian Army –

The Manual of Military Law succinctly narrates the genesis of Indian Military Law. The Indian Army had humble beginnings, with guards initially enlisted for protecting factories or trading posts established by the East India Company in the seventeenth century at Surat, Masulipatam, Armagon, Madras, Hooghly, and Balasore. Initially meant to enhance the dignity of Chief Officials rather than for defense, these guards evolved over time, giving rise to the European and Indian troops of the East India Company. By 1857, the Indian Army, including local forces and contingents, numbered 311,038 officers and men.

E.I. Company’s Mutiny Act –

The discipline of the East India Company’s troops was first addressed by the Act of 1754, known as the E.I. Company’s Mutiny Act, aimed at punishing mutiny, desertion, and offenses in the East Indies or at the Island of Saint Helena. Section 8 of this Act empowered the Crown to create Articles of War for these troops. Though initially designed for Europeans, the government of Bengal, Madras, and Bombay applied these articles, with modifications, to the Indian troops under their jurisdiction. Doubts about legal validity led to provisions in the Act of 1813, allowing each government to make laws, regulations, and Articles of War for Indian officers and soldiers.

Each Presidency Frames its own code –

Under the statutory sanction of these enactments, each presidency formulated a military code for its troops, closely mirroring the Articles of War applicable to the Company’s Europeans. Notably, only death, dismissal, suspension, and reprimand were applicable to Indian officers, while soldiers faced death and corporal punishment. Both transportation and imprisonment couldn’t be compensable.

(II) THE ARTICLES OF WAR

Government of India Act, 1833, and the “Articles of War” –

Section 73 of the Government of India Act, 1833 (3 and 4 Will. IV, C. 85) delineated that the authority to legislate for the entire Indian Army was confined to the Governor-General of Council. Laws formulated under this provision applied universally to all Indian Officers and soldiers, irrespective of their service locations. Utilizing the powers granted by the Act of 1833, the Indian Legislature, in 1845, established a unified code for Indian officers and soldiers, enacting the “Articles of War[3]” as Act XX of that year under the governance of the Governor-General in Council.

This Act faced subsequent modifications and replacements, starting with its repeal and replacement by Act XIX of 1847. The latter, subject to frequent amendments between 1850 and 1860, was then succeeded by Act XXXIX of 1861. Act V of 1869, titled “The Indian Articles of War,” eventually replaced the 1861 Act. Notably, the preamble of Act V of 1869 marked a pivotal moment by officially acknowledging the existence of entities commonly referred to as “followers.” This Act, equally applicable to them, reflected a groundbreaking shift in the legal recognition of diverse individuals associated with the Indian Army.

Amendment of “Articles” in 1894-

The consolidation of the three armies into one in 1895 prompted amendments to the “Indian Articles of War[4]” through Act XII of 1894. This served as the statutory foundation until 1911, incorporating subsequent amendments. But over time, as the Indian Army started to shoulder more of the British Army’s imperial duties, it became clear that the Act, which had been written initially for three distinct local forces, each acting as a ruler within its own Presidency, was insufficient to support the discipline and management of that army in the contemporary era. The numerous revisions that were tacked on top of the original articles made them difficult to read and occasionally even contradictory.

The Indian Army Act, 1911-

Indian Articles of War were amended once more in 1908. However, after careful consideration, it was determined that a new consolidated and amending Act would be required, and that amending the articles of 1869 further would only serve to further exacerbate the already-existing confusion. Consequently, the Indian Army statute was enacted in March 1911 and went into effect on January 1st, 1912, combining all previous laws pertaining to the Indian Army into a single, comprehensive statute and adding provisions that experience had proven to be required. Section 127 of the Act revoked all earlier Acts pertaining to that topic. Later on, this Act was amended by a number of amending Acts.

The Indian Army (Suspension of Sentences) Act, 1920

Temporary Acts during 1914-1918 led to the permanent “Indian Army (Suspension of Sentences) Act” in 1920, allowing for the suspension of sentences imposed by courts martial under the Indian Army Act.

Army Act, 1950

The Indian Army Act of 1911 underwent a general revision and consolidation in 1950, becoming the Army Act (Act XLVI of 1950). Subsequent amendments continued to refine its provisions.

Rules and other “subordinate legislation”

The current military code is housed in the Army Act, 1950, along with rules and other subordinate legislation, such as the Army Rules, 1954, framed by the Central Government under section 191 of the Army Act. These rules, along with others, possess the force of law. 443 of the Army Regulations, 1962, which obtain their legal effect from directives issued by the COAS with the Central Government’s approval in accordance with section 82AA.

OBSERVATIONS OF THE HON’BLE SUPREME COURT OF INDIA

Lt. Col. Prithi Pal Singh’s case.-

In the 1982 case of Lt. Col. Prithi Pal Singh v. Union of India [5](1982) 3 SCC 140, the Supreme Court highlighted a significant flaw in the Army Act—the absence of an appeal remedy against court martial orders. The court noted the evolving standards in the U.K. and the U.S.A. regarding this matter and urged Parliament to enact legislation aligned with the changing value system. Emphasizing the need for recording reasons by court martial, the court underscored the necessity of judicial review for the sake of justice and discipline.

The Supreme Court, in paragraphs 44 and 45 of its judgment, expressed concern that the reluctance to interfere with military affairs might create the impression that individuals under the Army Act are not citizens. It affirmed that even those subject to the Army Act retain their citizenship rights under the Constitution. The court stressed the importance of personal liberty, advocating for fair, just, and reasonable procedures and trials. Notably, the absence of an appeal mechanism for military personnel, unlike civilians, was deemed a glaring gap. The court proposed a judicial review, functioning as an appeal to a body comprising non-military or civil personnel, aligning with evolving standards of fair play and justice.

The court drew parallels with the U.K.’s Court Martial (Appeals) Act, highlighting the composition of the appellate court and its powers, including full judicial review. Similarly, the court referenced the U.S.A.’s Uniform Code of Military Justice Act, 1950, which established a court of military appeals with procedural reforms and due process safeguards. The court urged Parliament to consider these international developments, emphasizing that the principles of justice and fair play should not be sacrificed for military discipline. In conclusion, the court hoped that Parliament would recognize the changing value system and address anomalies, particularly the absence of reasoned orders by courts martial, ensuring justice and fairness for the disciplined and dedicated Indian Army.

S.N. Mukherjee’s case.-

In the case of S.N. Mukherjee v. Union of India[6] (1990) 4 SCC 564, a Constitution Bench of the Supreme Court addressed the issue of recording reasons in proceedings under the Army Act. The court, while acknowledging the undeniable desirability of recording reasons as a principle of natural justice, ruled that such insistence cannot be applied to proceedings under the Army Act. It highlighted that the Army Act and its accompanying rules mandated the recording of reasons in only two specific situations: (a) when the court martial recommends mercy, and (b) when the proceedings of the summary court martial are set aside or its imposed sentence is reduced.

The court explicitly stated that reasons need not be recorded for orders made by the confirming authority, confirming the findings and sentence established by the court martial. Additionally, the court clarified that orders issued by the Central Government dismissing post-confirmation petitions also do not necessitate the recording of reasons. This ruling provided clarity on the limited scenarios where the recording of reasons is obligatory under the Army Act, streamlining the procedural requirements in such military proceedings.

RELEVANT STATUTORY PROVISIONS

In 1992, Parliament passed the Army (Amendment) Act, 1992 (Act No. 37 of 1992), amending several provisions of the Army Act. However, these amendments did not address the recommendations made by the Supreme Court in Prithi Pal Singh. Subsequently, under SRO 17E dated December 6, 1993, an amendment was made to sub-rule (1) of rule 62 of the Army Rules, requiring the tribunal to provide brief reasons in support of its decisions.

Notably, a similar amendment was not implemented for courts martial under the Navy and Air Force Acts.

The Need for Suo Motu Action-

As Parliament had not acted on the recommendations of the Supreme Court in Prithi Pal Singh, and considering developments in other countries like the U.K. and U.S.A., the Law Commission found it necessary to conduct a review of existing laws on the subject suo motu.

Brief Survey of the Army Act, 1950-

The Army Act of 1950 consists of 16 chapters, with Chapters X, XI, and XII being relevant to courts martial, court martial procedures, and confirmation and revision, respectively. Chapter X (Sections 108 to 127) outlines the types of courts-martial, their convening, powers, and other related matters. Chapter XI (Sections 128 to 152) details the procedure to be followed by courts martial. Chapter XII (Sections 153 to 165) covers the confirmation and revision of court martial orders.

No Valid Finding or Sentence Without Confirmation-

Section 153 states that no finding or sentence of a general, district, or summary general court-martial is valid unless confirmed as per the Act[7]. Section 160 provides for the revision of findings or sentences, and Section 163 allows the competent authority to alter findings or sentences.

Confirmation and Remedy for Persons Aggrieved-

Section 164 outlines the remedy against orders, findings, or sentences of a court-martial. Sub-section (1) allows aggrieved persons to present a petition to the confirming authority, and sub-section (2) permits petitions to the Central Government, Chief of the Army Staff, or a prescribed superior officer after confirmation.

Power to Annul Proceedings-

Section 165 empowers the Central Government, Chief of the Army Staff, or prescribed officers to annul court martial proceedings on grounds of illegality or injustice.

Lack of Existing Right of Appeal-

There is no existing right of appeal against court martial orders. The only remedy provided is under Section 164(2), invoked after confirmation by the confirming authority.

Distinctions in Navy Act and Army Act Procedures:

In examining the procedures outlined in the Navy Act of 1957, a departure from those in the Army Act is evident. Noteworthy differences include:

(a) Confirmation Requirement: The Navy Act diverges from the Army Act by not necessitating the confirmation of sentences or orders issued by courts martial. However, an exception arises when an officer receives a prison sentence, requiring communication to the Chief of Naval Staff for subsequent orders. The convening authority is responsible for executing the sentence (Regulation 194 of the Regulations for the Navy, Part II).

(b) Judicial Review Provision: In contrast to the Army Act, the Navy Act introduces a unique feature—judicial review of court martial proceedings. This authority is vested in the Judge Advocate-General, who can initiate the review either suo motu or upon application by the aggrieved party. Subsequently, a report is submitted to the Chief of Naval Staff for appropriate action (Section 160). Additionally, Section 161 mandates that certain cases be forwarded to the Central Government with recommendations.

(c) Non-Interference with Acquittal: Under the Navy Act, orders of acquittal made by courts martial are safeguarded from interference or overturning by the Judge Advocate General or the Chief of Naval Staff (Section 161, sub-section 2).

(d) Multiple Avenues for Redress: The Navy Act provides individuals aggrieved by court martial findings or sentences with various avenues for redress. Section 162 allows presenting a petition to the Central Government or the Chief of Naval Staff, operating independently of the application before the Judge Advocate-General (Section 160). Section 163 specifies that upon filing such a petition, the Central Government or the Chief of Naval Staff may issue any of the specified orders, excluding an order to enhance the sentence.

HOW THE OBJECTIVES CAN BE ATTAINED

Conclusions regarding appeals against the final orders passed by the courts-martial.-

 The Law Commission advocates the creation of an appellate forum to entertain appeals against final orders issued by courts-martial. While the Army and Air Force Acts involve confirmation procedures for sentences or findings, the Navy Act lacks such provisions. The Commission suggests that every aggrieved individual need not adhere to the procedure outlined in section 164(2) of the Army Act or its Air Force counterpart[8]. An appeal mechanism should be instituted for the final orders of courts-martial, potentially rendering section 164(2) and corresponding provisions in the Air Force Act obsolete. Additionally, the provisions regarding judicial review by the Judge Advocate-General in the Navy Act may be considered for removal.

Composition of the Appellate Tribunal:

The proposed appellate tribunal is recommended to be headed by a civilian judge, with other members drawn from retired Armed Forces personnel and those with experience in the Judge Advocate-General’s department. It suggests a three-member tribunal, comprising a retired Judge of the Supreme Court or Chief Justice of a High Court (Chairman for a 4-year term), a retired officer from the Armed Forces of specified ranks, and a retired Judge Advocate-General. The term of the President and members is set at four years.

Quorum and Decision-Making:

The quorum for the Tribunal is established at two members, with the stipulation that decisions require the participation of the President.

Jurisdiction and Location:

The Tribunal is proposed to be common to the Army, Navy, and Air Force, with its seat in Delhi. However, the Tribunal can hold sittings at alternative locations for convenience.

Statutory Appeal to the Supreme Court:

The Law Commission recommends a direct statutory appeal to the Supreme Court from the Tribunal’s decisions. This aligns with existing provisions in certain enactments, like section 130E of the Customs Act and section 35L of the Central Excises and Salt Act, 1944[9]. The introduction of this statutory appeal is anticipated to dissuade High Courts from entertaining writ petitions under Article 226 of the Constitution against the Tribunal’s orders. This suggests a corresponding deletion of clause (2) of Article 136 of the Constitution, which restricts the Supreme Court’s power to grant special leave to appeal for judgments, determinations, sentences, or orders passed by courts or tribunals under laws related to the Armed Forces.

OTHER CONCLUSIONS

Examination of Views of the Armed Forces Personnel.-:

Before finalizing this report, the Law Commission engaged in extensive discussions with retired and serving officers from the three armed forces. Their endorsement of the Chapter V proposals was accompanied by a request to extend the jurisdiction of the proposed tribunal beyond court martial orders. They advocated for the tribunal to handle disputes related to the conditions of service, citing the current influx of writ petitions in various High Courts concerning service matters.

Tribunal Considerations and Legal Framework:

The request essentially seeks the creation of a service tribunal for the Armed Forces, akin to Administrative Tribunals under the Administrative Tribunals Act, 1985. The potential inclusion within Article 323A of the Constitution and the precedent set by the L. Chandra Kumar case were acknowledged. The Commission considered the need to curb appeals to the Supreme Court, leading to alternative mechanisms.

Legal Precedents and Constraints:

The legal position, as demonstrated in cases like Bonkya Alias Bharat Shivaji Mane v. State of Maharashtra and S.S. Jain Samiti v. Management Committee, R.J.I. College, Agra, was deliberated. Emphasis was placed on the exclusivity of appeals to the Supreme Court under specific circumstances.

Writ Jurisdiction and Adequate Remedy:

The Commission underscored that a person with the right to appeal directly to the Supreme Court against the tribunal’s decision would be barred from seeking recourse through writ jurisdiction under Article 226.

Recommendations for Adjudication of Service Disputes:

The Law Commission recommends amendments to the Army, Navy, and Air Force Acts, introducing a tribunal for service disputes[10]. The tribunal’s decisions should be subject to a direct statutory appeal to the Supreme Court, with an explicit prohibition on appeals against interlocutory orders. The legislative intent, promoting discipline in the Armed Forces, was stressed.

Tribunal Composition and Bench Requirement:

The proposal suggests that every service matter be decided by a two-member bench, including a Judicial Member. In cases of disagreement, a three-member bench, again with a Judicial Member, would decide. The Commission believes such a setup justifies a direct appeal to the Supreme Court for prompt dispute resolution.

Tribunal Structure and Jurisdiction:

A single service tribunal, common to all three armed services, with benches in Delhi, Mumbai, Chennai, and Kolkata, was proposed. This setup, similar to the Administrative Tribunals Act, aims to expedite dispute resolution, maintaining the independence of the proposed tribunal from the Appellate Tribunal suggested in Chapter V.

Exclusion of Writ Jurisdiction:

A party dissatisfied with the proposed Tribunal’s decision will not be eligible to seek relief through the writ jurisdiction under Article 226. Established legal principles assert that if an adequate avenue for appeal exists, resorting to the High Court’s writ jurisdiction under Article 226 is impermissible[11]. Therefore, if the aggrieved individual possesses the right to appeal directly to the Supreme Court against the proposed Tribunal’s final judgment or order, the recourse to the writ jurisdiction under Article 226 is precluded.

Concluding Remarks in Light of Legal Precedents:

Considering the legal landscape outlined above, we proceed to present our final conclusions.

Inclusion of Paramilitary Services:

The Commission suggests that the Parliament may consider bringing other paramilitary services under the jurisdiction of the proposed tribunal.

Interim Recommendations:

Until the Acts are amended, the Commission recommends the Central Government request all Chief Justices to amend High Court rules. Service disputes should be exclusively entertained and adjudicated by a division bench, prioritized over other matters. This recommendation can be promptly implemented.

RECOMMENDATIONS

Armed Forces Appellate Tribunal:

(a) Amend the Army Act, 1950 to establish an Armed Forces Appellate Tribunal, entertaining appeals against courts martial orders under the Army Act. Individuals may directly appeal to the tribunal against final orders or choose the remedy under section 164(2) initially. Consider deleting section 164(2) of the Army Act and similar provisions in the Air Force and Navy Acts. The tribunal shall comprise a retired Judge of the Supreme Court or a retired Chief Justice as President, a retired Army officer of Major-General rank or above, Air Force officer of Air Vice Marshal rank or above, and a retired Judge Advocate-General. Their term shall be four years, with the President seeking a replacement if the appellant outranks the member from category 2. Central Government to prescribe members’ terms.

(b) Tribunal quorum shall be two, with the President’s participation required for decisions.

(c) Appeals against the tribunal’s orders shall lie with the Supreme Court, making the tribunal’s decision final.

(d) Navy and Air Force Acts to be amended to incorporate the appellate tribunal with the specified features.

Creation of Service Tribunal:

(a) Amend the Army, Navy, and Air Force Acts to establish a Service Tribunal for service-related disputes. The Tribunal’s decisions should be subject to a statutory appeal to the Supreme Court, expressly barring appeals against interlocutory orders. High Courts are urged to consider legislative intent and prioritize discipline in the Armed Forces when dealing with appeals under Article 226.

• Specify that every service matter should be decided by a Bench of two members, with a Judicial Member mandatory. In case of a difference of opinion, a three-member Bench, including a Judicial Member, should adjudicate[12]. This approach enhances the desirability of a direct appeal to the Supreme Court, emphasizing the need for prompt resolution of service disputes.
• The created Service Tribunal should be common to all three services, with four Benches in Delhi, Mumbai, Chennai, and Calcutta, treating the Delhi Bench as the Principal Bench.
• Consider bringing other paramilitary services under the Tribunal’s jurisdiction.
• Exclusion of Writ Jurisdiction: An aggrieved party cannot seek writ jurisdiction under Article 226 against the Service Tribunal’s decision, given the availability of an appeal to the Supreme Court. The settled legal principle asserts that a writ remedy cannot coexist with an adequate avenue for appeal.
• Interim Solution: Pending amendments to the Army, Navy, and Air Force Acts, request Chief Justices of High Courts to amend rules, ensuring that division benches exclusively handle service disputes concerning the Armed Forces. Such disputes should be prioritized for prompt disposal, not exceeding six months.

CRITICISMS AND DRAWBACKS

The 169th Law Commission Report, which proposed amendments to the Army, Navy, and Air Force Acts, has faced criticism on several fronts. Firstly, concerns have been raised regarding the composition of the proposed Armed Forces Appellate Tribunal, comprising a retired Judge of the Supreme Court or Chief Justice of a High Court as President and retired military officers. Critics argue that the military-heavy composition may compromise the impartiality and independence of the tribunal, potentially influencing decisions in Favor of the armed forces. Secondly, the recommendation to establish a separate Service Tribunal for adjudicating service-related disputes within the Armed Forces has been met with scepticism. Critics contend that creating a parallel tribunal adds complexity to the legal framework, potentially leading to inconsistencies in rulings. Moreover, the proposal to exclude writ jurisdiction under Article 226 against the Service Tribunal’s decisions may be viewed as limiting access to justice and oversight. The potential exclusion of certain fundamental rights, as mentioned in Article 33, has also raised concerns about the balance between military discipline and individual rights. Overall, critics argue that the 169th Law Commission Report’s recommendations may need careful reconsideration to address these potential drawbacks and ensure a fair, balanced, and transparent legal framework for the Armed Forces.

CONCLUSION

In conclusion, the 169th Law Commission Report, while attempting to address procedural gaps in the Army, Navy, and Air Force Acts, has encountered significant criticisms that warrant careful reconsideration. The proposed composition of the Armed Forces Appellate Tribunal, predominantly featuring retired military personnel alongside a judicial head, raises concerns about the tribunal’s impartiality and independence. The potential influence of the military on legal decisions poses a risk of bias, challenging the principles of fair and objective justice. Additionally, the recommendation to establish a separate Service Tribunal has been met with scepticism, as it may introduce complexities into the legal framework and limit access to justice by excluding writ jurisdiction under Article 226. The perceived imbalance between military discipline and individual rights, particularly considering the exclusion of certain fundamental rights under Article 33, requires a delicate reassessment. For a transparent, fair, and effective legal system within the Armed Forces, it is crucial to address these concerns and ensure that any amendments strike an appropriate balance between maintaining discipline and upholding the constitutional rights of military personnel. This calls for a nuanced approach that considers the principles of justice, independence, and accountability within the unique context of the Armed Forces, ultimately fostering a legal framework that instills confidence in all stakeholders.Top of Form

REFERENCES

1. http://bareactslive.com/LCR/LC169.
2. https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-169-amendment-of-army-navy-and-air-force-act-1999/
3. https://www.advocatekhoj.com/library/lawreports/index.php

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