The recent debate over the process of appointing High Court and Supreme Court judges has raised several important questions about judicial independence. Unfortunately, the Indian military justice system has escaped similar scrutiny. Worse, any prospects of reform seem dim at present.

For a court to be able to hold a fair trial, it must have at least three attributes – competence: judges must possess appropriate legal training and qualifications; independence: judges’ appointments, promotions and security of tenure should not be open to the executive's influence; impartiality: judges should be and appear to be free of personal and institutional bias.

On all these counts, the Indian military justice system is deficient. It discounts legal training and qualifications, lacks independence from the military chain of command, and ignores conflicts of interest. The military justice system, as set out in the Army Act, the Air Force Act and the Navy Act, is based largely on the British Indian Army Act of 1911. The court-martial procedure is broadly similar across these laws, with some key differences in the Navy Act. Paramilitary forces have their own specific laws based on the Army Act.

The flawed processes

A court-martial is a temporary body assembled by a "convening authority" – a senior military officer – after looking into the charges against an accused soldier. The convening officer also appoints the members of the court-martial, the prosecutor and the defence counsel, who are all officers drawn from the military.

Some court-martials are also attended by a "judge advocate" who is trained in law and provides legal advice to the court, prosecution and defence, but does not act either as a judge or as an advocate for any side.

Military courts can try military offences such as failure to obey orders and also civilian crimes. When a military court reaches a finding and awards a sentence, it must be "confirmed" by another senior officer (who is usually the convening officer). The confirming officer, if dissatisfied, can order the court to revise the findings or sentence. They can also mitigate, remit or commute the sentence.

Riddled with structural defects

So how is this system flawed?

Competence: Members of a court-martial typically don’t have any legal training or qualifications. Officers appointed to the armed forces for their military ability are in effect required to perform all the functions of a judge (a job that in civilian courts requires a law degree and years of experience). Soldiers are expected, with the advice of a judge advocate, to assess evidence, determine guilt, and award sentences.

Independence: The members of a court-martial, the judge advocate, the prosecutor and the defending officer are all subordinates in rank to the convening officer. The members of the court-martial are also under the convening officer’s chain of command. Several former soldiers have criticised this lack of independence. Wing Commander (Retd) U C Jha wrote that the convening officer “exercises command and control over his functionaries in all areas of their service career, including assessment in the annual appraisal reports, future promotions, leave, training courses, posting and appointment”.

Impartiality: The convening officer, who decides whether a case should be tried by a court-martial, has to first determine if the evidence supports the charges. When the same person is then given the authority to appoint a court-martial’s members and "confirm" findings and sentences, the right to a fair trial is, and appears to be, threatened. The risk that court members will be susceptible to command influence increases - an issue the Supreme Court has highlighted. The conflict of interest is exacerbated in cases of alleged human rights violations, where concerns about the army’s reputation and troop morale come into play.

While individual soldiers can of course be honest and fair-minded, the structural defects of the military justice system make military courts less able to conduct fair trials and deliver justice.

Reforms elsewhere

The United Kingdom, whose model India followed, has reformed its military justice system extensively following concerns around the role of the convening officer. In 1997, the European Court of Human Rights ruled that that a court-martial in the UK did not constitute a “fair hearing” by an “independent and impartial tribunal” because all the officers appointed were serving under the command of the convening officer. The European Court also ruled that the officers’ lack of legal qualification or experience “made it impossible for them to act in an independent or impartial manner”.

The self-policing approach of the military justice system makes it particularly unsuitable for prosecuting alleged human rights violations. These cases can in theory be prosecuted by civilian courts, but security forces often block attempts to do so. They invoke laws like the Armed Forces Special Powers Act to require prior permission from the central government (which is virtually never given). Or they claim that the concerned soldier was on "active service", which means that the case can then be tried in a military court.

The army says it has found nearly 95% of allegations of human rights violations by army personnel to be false or baseless. But few details of these investigations are available to the public. The army says it has punished several soldiers, but these claims are again virtually impossible to verify, as the army refuses to disclose more information. The results of court-martial proceedings are almost never revealed even to victims and their families, in effect ruling out legal challenges. Cases like the Machil fake encounter, for which a court-martial convicted five army personnel in Jammu and Kashmir last year, have been rare exceptions. An upcoming report by Amnesty International India on impunity in Jammu and Kashmir looks at these issues in more detail.

Open to civilian courts

Internationally, there is growing acceptance that civilian courts, and not military courts, must prosecute soldiers for alleged human rights violations such as torture, extrajudicial executions and enforced disappearances. International human rights standards state that military court jurisdiction should be limited to strictly military offences committed by military personnel, such as desertion or insubordination.

Other countries have shown that reforms are possible. In the last two decades, the UK, Canada, Mexico and New Zealand have extensively reformed their military justice systems, limiting the role of commanding officers, strengthening the independence of judges, establishing external accountability mechanisms, and limiting the jurisdiction of military courts. There’s still room for improvement. But these changes have improved fairness and due process without any evident harm to military discipline or effectiveness.

Georges Clemenceau, the prime minister of France during the First World War, once said that military justice is to justice what military music is to music. India’s military justice system is truly out of sync with the times. It needs an urgent tune-up.

The writer is Senior Policy Advisor, Amnesty International India.