Why Military Justice Matters

In uniformed service, justice must move at the speed of command. The Court Martial is a specialised forum designed to uphold discipline, morale, and operational efficiency—without abandoning the rule of law. The Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC) govern civilians; service personnel are primarily governed by the Army Act, 1950, Air Force Act, 1950, and Navy Act, 1957 with their rules. The balance is simple: discipline cannot be optional; fairness cannot be cosmetic.

Legal Foundation: Constitution & Army Act, 1950

Article 33 of the Constitution empowers Parliament to modify the application of fundamental rights for armed forces to ensure discipline. The Army Act, 1950 and Army Rules, 1954 provide the substantive offences and procedure. Offences may be civil (e.g., theft, assault, homicide) or military (e.g., desertion, insubordination, dereliction of duty, misconduct in the presence of the enemy). The architecture is hierarchical: swift, rigorous, and—when properly conducted—fair.

Types of Court Martial (GCM, DCM, SGCM, SCM)

1) General Court Martial (GCM)

Jurisdiction: Can try any person subject to the Act for any offence and award any sentence, including the death penalty. Composition: minimum five officers (above Captain). A Judge Advocate advises on law and procedure. Typically used for the gravest charges—mutiny, espionage, homicide, or serious corruption.

2) District Court Martial (DCM)

Jurisdiction: Generally for ranks below commissioned officers; sentencing powers are limited (no death or life imprisonment). Composition: three officers (not below Captain). Suitable for mid-range misconduct—e.g., theft of government property or serious indiscipline.

3) Summary General Court Martial (SGCM)

Convened on active service when a GCM/DCM is impracticable. Jurisdiction: can award any sentence (except for officers, where limitations apply). Composition: three officers. Designed for operational theatres where delay is measured in lives, not minutes.

4) Summary Court Martial (SCM)

The most expeditious forum. Composition: the accused’s Commanding Officer (CO) presides; limited to personnel below Junior Commissioned Officer rank. Sentencing: generally up to one year’s imprisonment with other minor punishments. Appropriate for AWOL, drunkenness on duty, and similar petty breaches.

Step-by-Step Procedure

1) Preliminary Inquiry & Summary of Evidence

The CO orders an investigation. Witnesses are examined, documents collected, and a Summary of Evidence is recorded. This is the “charging decision” moment: if a prima facie case exists, charges are framed.

2) Charge Sheet

Specifies the act, date, place, and the relevant section violated. Precision matters; ambiguity is fertile ground for challenge.

3) Convening the Court

A convening order nominates members and the Judge Advocate. Independence is key—members cannot be biased, interested, or subordinate to the accused in a manner that undermines fairness.

4) Trial

• Arraignment and plea
• Prosecution evidence (examination-in-chief, cross-examination, re-examination)
• Defence evidence and statements
• Judge Advocate’s summing-up on law
• Findings (by majority, where applicable)

5) Sentencing

After conviction, the Court hears mitigation. Disproportionality invites later trouble—keep that in view.

6) Confirmation & Promulgation

No sentence has legal force until confirmed by the confirming authority (often a senior commander/Government). Proceedings are then promulgated—triggering limitation clocks for petitions and AFT challenges.

Rights of the Accused

• Defence: Defend personally or through a defending officer; civilian counsel may be permitted.
• Impartial Tribunal: Right to object to members for bias or disqualification.
• Disclosure & Copies: Access to statements, exhibits, and the record of proceedings.
• Cross-Examination: Full adversarial testing of prosecution witnesses.
• Standard of Proof: Beyond reasonable doubt—military expediency does not dilute this.
• Post-Trial Remedies: Petitions under Section 164; judicial review before AFT.

Punishments Under Section 71 (Army Act)

Sentences range from death, imprisonment for life, rigorous imprisonment, and dismissal, to forfeiture of pay/seniority and severe reprimand. In practice, dismissal and imprisonment are common; capital punishment is rare and tightly scrutinised.

Appeal & Review: Section 164 & Armed Forces Tribunal

Post-Trial Petitions (Section 164)

The accused may petition the confirming authority against findings or sentence, and later the Central Government/Chief of Army Staff. These are administrative remedies; exhaust them promptly.

Armed Forces Tribunal (AFT)

The Armed Forces Tribunal Act, 2007 enables judicial review of Court Martial findings/sentences. The AFT examines procedural regularity, evidence sufficiency, proportionality of punishment, and constitutional fairness.

Supreme Court Oversight

While direct statutory appeals from Court Martial are limited, remedies under Articles 226/227 (via High Courts in appropriate contexts) and 136/32 (Supreme Court) may lie, especially on substantial questions of law or violation of fundamental rights.

Landmark Judgments

• Lt. Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140 — Military discipline is vital, but procedures of justice are not expendable.
• Union of India v. Charanjit S. Gill, (2000) 5 SCC 742 — Military justice is special, not extra-constitutional; subject to judicial review.
• Ex-Naik Sardar Singh v. Union of India, (1991) 3 SCC 213 — Procedural lapses in evidence and fair opportunity can vitiate conviction.
• Lt. Col. S.K. Loraiya v. Union of India, (1998) 3 SCC 217 — Non-compliance with mandatory procedure and jurisdictional defects are fatal.

These cases are frequently employed to challenge unfair trials, defective confirmations, and disproportionate penalties.

Frequent Procedural Errors (and How We Use Them)

1. Defective Charges: Vagueness, misjoinder, or wrong sections—ripe for challenge.
2. Biased Composition: Members with conflicts or chain-of-command issues.
3. Summary of Evidence Gaps: Missing primary witnesses, hearsay reliance, un-exhibited documents.
4. Improper Use of SCM: Using SCM where higher forum is warranted—causing prejudice.
5. Confirmation Without Application of Mind: Rubber-stamp approvals lacking reasons—classic administrative illegality.
6. Disproportionate Sentences: Penalties not calibrated to culpability—AFT often intervenes.

Court Martial vs Civilian Trial (At a Glance)

Frequently Asked Questions

1) Can a Court Martial try civil offences like theft or homicide?

Yes. Service personnel are triable for civil offences under the service Acts, with punishments aligned to the IPC, subject to service-law procedure and jurisdiction.

2) Is legal representation by a civilian lawyer allowed?

Yes, with permission. A defending officer is the norm; civilian counsel can be permitted, particularly in complex or high-stakes matters.

3) When does the limitation clock start for challenging a conviction?

Typically from promulgation of the confirmed sentence/proceedings. File Section 164 petition(s) promptly and prepare for AFT within reasonable time thereafter.

4) Can an SCM be challenged for lack of fairness?

Yes. SCMs are vulnerable to challenge where the forum choice caused prejudice, where evidence was perfunctory, or where the CO’s dual role compromised fairness.

5) What reliefs can the AFT grant?

Setting aside findings/sentence, remand for re-trial, modification of punishment, reinstatement with consequential benefits (where appropriate), or other just orders.