Complete overhaul of the military justice system is needed.

In July,the defence minister set up a committee to take a look at grievance red­ressal, pension-related matters and service-related litigation—all of which have taken adversarial tones in recent years. Parrikar wanted suggestions on institutional mechanisms that would bridge the gap between the ministry and the soldier.

The committee wants an overhaul of a colonial hand-me-down that is downright unfair on soldiers of a modern democracy. Risking the ire of the uniformed frat, which guards its systems with ferocity, they’ve said: “Fairplay and justice cannot be sacrificed at the altar of military discipline.”

They’ve raised questions resisted by the system so far: How impartial is the military justice system? And how insulated is it from command influence? Making a case for far-reaching changes in the dispensation of military justice, the committee says, “Gone are the days when defence establishments could invoke the veil of confidentiality or fear psychosis in all matters in the name of national security. This is understandable in operational and strategic matters, but cannot be allowed to impact administrative, personnel, pensionary issues.”

Military trials have often been challenged in courts on the ground that they lack in independence and are under the influence of the convening authorities. Superior military authorities even have the power to revise the sentences or findings of courts martial. The committee found that, in the military justice system, there was no clear separation of the powers of the executive and the judiciary. No wonder when these verdicts are challenged in higher, civilian courts, they have often resulted in strictures.

Progressive democracies have already created impartial, independent military justice systems, but in India, as the committee noted, “all main organs of a court martial continue to be subordinates of the convening authority, which puts a doubt on their impartiality” and “visible and invisible strings of the military justice system are intertwined with the chain of command”. Agreeing on the need for reforms, former army chief Gen V.P. Malik says, “As our society and systems evolve, old rules and laws are amended. Our military laws are archaic, the structures and procedures should become more impartial. But it has to be done with care, without affecting discipline.”

One major suggestion from the committee is that, in all three services, the presiding officer and others on a court martial should be from a formation outside the influence of the convening authority. It also says a standing court martial system with suitable infrastructure must be created at two or three military stations under all commands so as to do away with the ad hoc courts martial convened in remote military locations.

The committee comes down heavily on summary courts martial (SCMs), in which, it notes, principles of natural justice and basic legal norms are unknown! SCMs are provisions for quick dispensation of justice, chiefly a wartime provision to punish err­ant soldiers. But some 500 SCMs take place every year, and the establishment says they may be draconian but are essential for maintaining discipline. In the US, on the other hand, an SCM can be conducted only if a soldier gives his consent; besides, he cannot be dismissed by SCM.

The committee was particularly exercised by the way courts martials are conducted. It says justice cannot be sacrificed for discipline.

In India though, commanding officers can mete out harsh punishment­—such as dismissal or imprisonment in a civil jail—without spelling out judgments or exp­laining decisions. In one egregious SCM case, set aside by the Supreme Court in 1987, sepoy Ranjit Thakur was dismissed for disobeying his superior’s order to eat while he was in disciplinary custody. The SC observed that “the sentence should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias”. The committee has recommended that, as a beginning, SCMs should be used sparingly, and only in operational areas. Gradually, they must be replaced by a system that meets constitutional norms.

As a first step for the complete overhaul of the military justice system, the committee recommends a seven-member study group. It must comprise members from the army’s Judge Advocate General (JAG) branch, the army and civilian sides, and two independent experts. They must be given six months to create a common code for all three services, with service-specific cadres of independent military judges. And the current ad hoc juries must go. The committee also wants provisions to insulate the military justice system from senior commanders’ influence.

The defence ministry, says the committee, is a “compulsive litigant”, contesting cases against its own human resources even when matters have been settled by constitutional courts. There are more than 16,000 cases of servicemen before the courts, and 90 per cent of appeals rel­ate to the challenging of disablility benefits. In a letter of December 9, 2014, the defence secretary had asked all its arms to apply court verdicts that had reached finality to all employees to whom they might apply. Response was weak, indicating the obduracy in the system, and in September this year, the attorney general had to remind the wing in charge of ex-servicemen’s welfare that cases and appeals meeting such criteria be disposed of, for the SC had even imposed costs on the ministry for stubbornly continuing with such cases.

A more serious matter is that of the ministry not implementing courts’ and armed forces tribunals’ decisions. The committee notes that there seems to be “an unwritten policy that decisions are not to be implemented unless a contempt/execution is filed by the litigant”. Many such cases relate to pensions, often of disabled soldiers, widows, or old and infirm veterans. It strongly recommends implementation of decisions within the time frame set by courts. And with cases related to women officers, the subject of much recent debate and litigation, it has recommended that henceforth appeal in court decisions favouring women officers and their cadre management be filed only after seeking the specific approval of the defence minister himself.

Conscious perhaps of how radical suggestions can be scuttled by power centres in the civilian and military bureaucracy, this committee reported only to the defence minister, having completed its work in four months. All eyes are now on Parrikar, to see if he will see such unorthodox proposals through. Notable among them is a proposal to allow soc­ial-media interactions within the forces. Commanders may write blogs, it says, and “intrusive” procedures to restrict social media use by military personnel must go.