Rajshri Rai: Since you are the chairperson of Armed Forces Tribunal, please elaborate how the military laws came into being in India.
Justice Rajendra Menon: Military law relates to the rules and regulations of the Army, Navy and Air Force. It is intimately linked with Article 33 of the Constitution. Article 33 empowers Parliament to curtail the fundamental rights of certain groups of people who are discharging their duties with the armed forces, and therefore, the rights available to army men have to be understood with reference to Article 33 wherein rights are curtailed by virtue of laws made by Parliament. Military laws were promulgated by the Britishers in 1911. The Britishers ensured that punishment, discipline and procedure were perfectly under their control.
However, when India became free, the task of amending the military laws was entrusted to DM Sinha. He was the first Judge Advocate General of the country. He is the architecture of the Army Act, 1950. He suggested to Dr Ambedkar to install provisions in the Constitution, empowering the Parliament to make a law curtailing certain rights of army men. Article 33 of the Constitution was brought into being in the process.
Briefly, the Article states: “Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to the members of the Armed Forces.”
Military law consists of three acts—the Army Act, Navy Act and the Air Force Act. The Army is the biggest force, having a force of more than 13 lakhs, the Air Force comes next which has about 1.3 lakh personnel and the Navy is the smallest unit which has about less than 90 servicemen.
The three wings of the Army have three different Acts. The Acts provide for recruitment, enrolment, attestation, service conditions, law formulation, and most importantly, rules related to discipline.
Then, there are provisions for court martials which are of various types: general court martial and district court martial. The procedure is laid down in the Army Act, Navy Act and Air Force Act for conducting the court martial.
If a man in uniform commits any criminal offence, the police may file a case, but it has to take permission from the respective commander to prosecute him in a normal criminal court. The commander may, however, take a decision to prosecute the accused by court martial. However, the judge or the criminal court may disagree with the commander’s decision to proceed with the court martial and make a reference to the central government. The central government will decide who will prosecute. But in 99% of the cases, the commander’s request for court martial is accepted and the matter is handed over to the military.
A civilian who is tried by a sessions court can appeal to the High Court, but till some time back, an army person didn’t have such rights. Right from 1950 up to 2009 when the Armed Forces Tribunal was created, the only remedy available to the accused was a petition under Article 226 of the Constitution. Article 226 does not permit enquiry and interference or judicial review on factual aspect of the matter. Therefore, a man punished under the court martial is deprived of his right of appeal.
In 1982, one Major Pritpal Singh Bedi filed a petition in the Supreme Court and the Court said that a provision for appeal should be provided to him. From 1982, the matter was pending in Parliament, and it was only in 2007 that a parliamentary committee recommended the change. Ultimately based on the parliamentary committee’s recommendation, the Armed Forces Tribunal Act, 2009 came into force.
Now, if you see the Armed Forces Tribunal Act, you will find two sections: Sections 14 and 15. Section 14 gives a general jurisdiction to the Tribunal to deal with service matters and Section 15 is a provision which is akin to Section 389 of the CrPC, and today, the Armed Forces Tribunal acts as an appellate forum with regard to all court martials and punishment by the court martials, including suspension of sentence, grant of bail, etc. The biggest development that took place in the Indian military judicial system was when the Armed Forces Tribunal Act, 2009, was created. Today, the Tribunal deals with a wide ambit of cases.
RR: After a long legal battle, women have finally secured the right to serve in the Army on an equal footing with their male counterparts. The Supreme Court has given equality to women in service matters, permanent commission and promotion-related issues. Gender neutral selection boards have also been constituted. Women are inducted in combat roles as well. Did these issues also come before the Tribunal?
Justice Menon: This matter goes back till 2010. Till 2010, the practice was that women were recruited for short service commission which was for seven years with an extension of three years, thus totalling 10 years. Later, it became 10 years with an extension of four years, thus totalling 14 years. After that, they were sent back home with no pension and other service-related benefits. Moreover, the recruitment was restricted to a limited number of branches, such as education, nursing, etc, but there were a lot many branches wherein women officers were not recruited.
In 2010, a lady officer by the name of Babita Punia approached the Delhi High Court, seeking redressal against this discrimination. The case was filed in 2010 and the Delhi High Court delivered its judgment in 2014 or 2015 wherein it held that the lady officers should also get permanent commission. Since then, the matter was pending in the Supreme Court till 2020.
On March 17, 2020, the Supreme Court bench led by CJI DY Chandrachud delivered a judgment in the name of NE Nagaraj and Babita Punia, wherein it was held that women should be given equal rights for treatment in the Army and they should be permitted to work in all the areas of the Army, including combat area, subject to their fitness and passing the required tests, etc. From April 1, women officers have taken charge even in the combat area and they have become colonels, commanding a unit in the combat area. So, that is a big development as far as the Army is concerned.
And with regard to your question pertaining to our handling of such cases, yes we deal with such cases, but only those related to appointment as permanent commission wherein the short service commission officer complains on merits.
RR: What about the incidents that we are witnessing today in Manipur? There have been recurring protests in the North East against the Army with regards to the Armed Forces Special Powers Act. Earlier, the Army was the target of stone pelting as well in Kashmir. What is the remedy available to the Army in these situations?
Justice Menon: In this situation, the only remedy available with the Army is to approach either the High Court or the Supreme court under Article 226 or 32 of the Constitution. Our Tribunal is the creation of a statute and the specific power given to us is only Section 14 and 15. We cannot go beyond it.
In Manipur or North East, if an army officer feels that his fundamental or human right is being violated, the only remedy available to him is to approach the High Court under Article 226 or Article 32 and get a writ of mandamus against the government.
RR: The Supreme Court has retained adultery by the army personnel in the category of an offence. Though the society in general is heading towards a liberalized social set-up wherein live-in relationships, same-sex relationships have been permitted, there are a lot of restrictions within the Army. Isn’t it violation of their right to individual freedom?
Justice Menon: At one level what you are saying seems correct. As far as Section 377 being a criminal offence, even in the Army it is not a criminal offence, but there is a provision in the Army Act, Navy Act and Air Force Act and many other service laws, related to an act unbecoming of a man in service.
When an army person enters into an extramarital relationship, there are moral and security concerns. We also receive cases wherein disciplinary actions are taken against officers for extramarital affairs and they argue that since the apex court has decriminalized adultery, the Army does not have any power to take action against them. I overruled it and maintained that action is necessary for maintaining discipline. I applied Article 33 and curtailed it.
RR: Indian military laws have evolved over the years. What difference do you find between Indian military laws and foreign military laws?
Justice Menon: Our military laws are not much different from that of other nations. The principles of natural justice and the opportunity of hearing exists in our laws as well. Earlier, the Army judicial action was final. But, after the coming into existence of the Tribunal, a layer of appeal has been added. Today, we have a lot of cases before the Tribunal; we have more than 40,000 cases approximately. This is only owing to the trust that people have reposed on us. But, the difference in our system and the western countries is that people generally feel an absence of independence in our inbuilt system. I won’t go into the details of it, but this feeling should be taken care of.
RR: For those soldiers who have retired and their rights for medical pension and one-rank-one-pension, where should they go? Does the Tribunal deal with such cases?
Justice Menon: Sixty percent litigation pending before us is about matters related to retired persons wherein there are two categories—pension and disability pension. Disability pension as observed by the Supreme Court is when a soldier is reinducted in the Army after undergoing medical treatment. If the disease is attributable to or aggravated by military service, then the person is entitled to compensation. The compensation claim goes to the medical board which assesses the compensation, and compensation is granted. This is referred to as disability element of compensation and the pension received is slightly different and is known as disability pension. If the medical board opines that the aggravation of ailment is due to the service, full compensation is awarded.
RR: In Pakistan, there always has been an upheaval due to the Army. Many times, the Army has overthrown civilian governments and captured power. Is there a balance between the civil and military laws in India which will not allow a situation akin to that of Pakistan?
Justice Menon: No, such situations can’t happen in India. There can never arise a situation like that. Our Constitution is much stronger and it won’t permit such a thing to happen. Even our military law has provisions which can be used to curtail all those things and I don’t think the Pakistan military law has such an inbuilt system.
RR: You are also chairman of the Standing Committee of Legal Education of the Bar Council of India. Fake law degrees are a serious concern. I remember, as then vice-president of the Supreme Court Bar Association, Pradeep Rai has also raised this issue with the Association. Quacks similar to medical field have also emerged in the advocacy field. How should this be curtailed?
Justice Menon: The issue of fake degree is before the Supreme Court. On April 10, the chief justice of India passed an order whereby he instructed the Bar Council of India and state bar councils to verify the fake degrees. The bar councils had the grievance that the universities do not cooperate with them, and ask for money.
On April 10, CJI Justice DY Chandrachud constituted a committee to oversee this aspect. Retired Supreme Court judge Justice Deepak Gupta has been made the chairperson of this committee, and luckily, I am also a member of the committee. We have to submit a report by August 31.
We have held meetings as we are formulating certain rules and regulations for verification of not only the law degrees, but also the school degrees of every lawyer who has been registered in the country. And as per reports, the list has around 27 lakh lawyers. We are tasked to verify their degrees. The Bar Council and our Committee is working on it and I believe we will reach a conclusion in the coming days.
RR: Legal education is getting expensive day by day. Law colleges charge high fees which is beyond the means of many students. The poor students are deprived of their aspiration to study law. Is the Bar Council inclined to take some measures?
Justice Menon: The Advocates Act empowers the Bar Council to regulate the legal education. As far as the fee structure is concerned, in medical education, engineering education, B.Ed. education, there are fees regulatory authorities which decide the fees on a case-to-case basis. Similarly, there should be a system for legal education as well.
The central government or the state government should formulate a fees regulating committee where they will decide what would be the fee structure of a particular college based on its infrastructure and the available facilities, and once that is done, this issue can be resolved.