Manual of Law

Indian Armed Forces (Army, Air Force, Coast Guard)

Dr. U C Jha

• Publisher: VIJ Books (India) Pty Ltd
• Year: 2014
• ISBN:
  9789382652885
• Edition: 1
• Topic: Law
• Subtopic: Military Law
• Index: Law

The legal system of the armed forces is evolving and moving towards civilianization, as the Armed Forces Tribunal completes five years of its existence. The laws governing the armed forces are of concern not just to members of the armed forces, but to every Indian. Thus, it is necessary for these laws to be understood and analysed by the legal fraternity, human rights activists, and military and government officials in the correct perspective in order to improve the system. A 'just' and 'fair' system is of great significance to the success or failure of the armed forces. This is the first attempt to deal with the laws relating to the Indian Army, Navy, Air Force and Coast Guard in one volume. The basic statutes of these forces as well as the subordinate legislations have been comprehensively analysed. Using famous cases relating to the armed forces, this book examines constitutional and statutory rights and privileges, administrative and minor punishments, step-by-step court martial process, review and revision of punishments, procedure of courts of inquiry, and the jurisdiction and functioning of the Armed Forces Tribunal. It provides an overview of the provisions of the Indian Penal Code and the Code of Criminal Procedure relating to members of the armed forces. In addition, it analyses the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules and the provisions of the Armed Forces Special Powers Act (AFSPA) in detail.

II. THE LAW RELATING TO THE ARMY

1. PRELIMINARY

CONTENTS

PARA

A. Introduction

[0006] Introduction

B. Short title and commencement

[0007] Short Title and commencement

C. Definitions and Meanings

[0008] Active service

[0009] Power to declare persons to be on active service

[0010] Civil offence

[0011] Civil prison

[0012] Chief of the Army Staff

[0013] Commanding officer

[0014] Officers exercising powers in certain cases

[0015] Corps

[0016] Court martial

[0017] Criminal court

[0018] Customs of the service: Exercise of power vested in holder of military office

[0019] Department

[0020] Enemy

[0021] Field Officer

[0022] The Forces

[0023] Junior commissioned officer

[0024] Military custody

[0025] Military reward

[0026] Non-commissioned officer

[0027] Notification

[0028] Offence

[0029] Officer

[0030] Prescribed

[0031] Proper military authority

[0032] Provost marshal

[0033] Reckonable commissioned service

[0034] Regular Army

[0035] Regulations

[0036] Superior officer

[0037] Warrant officer

[0038] Words and expression not defined

D. Persons subject to the Army Act

[0039] Persons subject to the Army Act

[0040] Territorial Army

[0041] Applicability of the Army Act to certain Forces under Central Government

[0042] Force

[0043] Special provisions as to rank in certain cases

[0044] Commanding officer of persons subject to military law under the Army Act 1950 s 2 (l)(i)

A. INTRODUCTION

[0006] Introduction The Indian Army Act 1950 constitutes a special law in force conferring a special jurisdiction on the court martial prescribing a special procedure for the trial of the offences under the Act. The Army Act 1950 and the Army Rules 1954 constitute a self-contained code specifying offences and the procedure for detention, custody and trial of the offenders by the court martial. Chapter VI of the Army Act 1950 comprising of sections 34 to 69 specify and define the various offences under the Act¹.

1 Ranjit Thakur v Union of India 1987 AIR 2386: 1988 SCR (1) 512: 1987 SCC (4) 611.

B. SHORT TITLE AND COMMENCEMENT

[0007] Short title and commencement This statute covering the Army is the Army Act 1950¹. It came into force on 22 July 1950 by notification in the Official Gazette².

1 The Army Act 1950 s 1(1).

2 The Army Act 1950 s 1(2). See: Government of India notification SRO 120 dated 22 July 1950. Certain amendments were incorporated in the Army Act 1950 in 1955, 1956, 1974, 1975 and 1992.

C. DEFINITIONS AND MEANINGS

Certain words and terms that appear in the Army Act and the Army Rules will need to be understood as they are defined in the Army Act 1950 and the Amy Rules 1954.

[0008] Active service In the Army Act 1950, unless the context otherwise requires, ‘active service’, as applied to a person subject to the Army Act, means the time during which such person is attached to, or forms part of, a force which is engaged in operations against an enemy¹; engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy²; or attached to or forms part of a force which is in military occupation of a foreign country³.

1 Army Act 1950 s 3(i)(a).

2 Army Act 1950 s 3(i)(b).

3 Army Act 1950 s 3(i)(c).

[0009] Power to declare persons to be on active service Notwithstanding anything contained in the provisions of the Army Act 1950¹, the central government can, by a notification, declare any person or class of persons subject to the Army Act 1950 shall, with reference to any area in which they may be servingor with reference to any provision of the Army Act 1950 or of any other law for the time being in force, be deemed to be on active service within the meaning of that Act. The term “they may be serving” would cover not only persons actually engaged in performing duties of their respective offices on the date of commission of offence alleged against them but also persons on leave at relevant point of time. ‘Serving’ would mean holding employment as distinguished from actually performing duties of service. The period of leave will also be included as ‘serving’² In order to ascertain whether the troops are on ‘active service’ or not, regard must be had to all the circumstances involved. Where there is any doubt as to whether or not troops are on active service for the purposes of this provision, a declaration should be made under the Army Act 1950³. The central government may issue notification under the Army Act 1950 s 9 and declare that any person or class of persons subject to the Army Act, serving in any particular country, place or area shall be deemed to be on active service. The Government of India has issued number of such notifications under the Army Act 1950 s 9⁴. Army person injured in attack by miscreant while going to join duty has to be deemed to have received injury while in active service⁵.

1 Ie as contained in the Army Act 1950 s 3 (i): see [0008].

2 Phrase ‘they may be serving’: Apt Singh v State of Punjab AIR 1970 P&H 351 (FB) : 1970 Cr LJ 1119 : 72 Punj LR 376.

3 Ie under Army Act 1950 s 9.

4 E.g: Such notification was issued wide SRO 6-E/62 dated 28 November 1962 for the first time to combat Chinese aggression.

5 Nand Kishore Mishra v Union of India 2013 AIR SCW 1290.

[0010] Civil offence Unless the context otherwise requires, ‘civil offence’ means an offence¹ which is triable by a Criminal Court².

1 The term ‘offence’ means any act or omission punishable under the Army Act 1950 and includes a civil offence; see: Army Act s 3(xvii) [0028].

2 The term ‘criminal court^, means a court of ordinary criminal justice in any part of India, see: Army Act 1950 s 3 (viii) [0017]. Army Act 1950 s 3(ii).

[0011] Civil prison Unless the context otherwise require, ‘civil prison’ means any jail or place used for the detention of any criminal prisoner under the Prisons Act 1894, or under any other law for the time being in force¹.

1 Army Act 1950 s 3(iii).

[0012] Chief of the Army Staff Unless the context otherwise require, ‘chief of the army staff’¹ means the officer commanding the regular army².

1 The term ‘commander in chief was replaced by the term ‘chief of the army staff wef 7 May 55; see The commander-in-chief (change of designation) Act 1955 and Government of India, Ministry of Defence Notification SRO 2/E dated 7 May 55.

2 As to the definition of ‘regular army’ see the Army Act 1950 s 3 (xxi); see [0034]. Army Act 1950 s 3 (iv).

[0013] Commanding officer Unless the context otherwise requires, the term ‘commanding officer’, when used in any provision of the Army Act 1950, with reference to any separate portion of the regular army or to any department thereof, means the officer whose duty it is under the regulations of the army, or by the custom of the service, to discharge with respect to that portion of the regular army or that department, the functions of a commanding officer in regard to matters of the description referred to in that provision¹. The commanding officer of a person subject to the Army Act 1950 is either: (a) The officer who has been appointed by higher authority to be a commanding officer to exercise his power as such²; or (b) Where no appointment has been made, the officer who is, for the time being, in immediate command of: (i) The unit to which the person belongs or is attached to³; or (ii) any detachment or a distinct sizeable separate portion of a unit with which the person is for the time being serving, and in respect of which it is the duty of such officer, under the regulations for the army or by the custom of the service, to discharge the functions of a commanding officer⁴.

1 Army Act 1950 s 3(v).

2 Defence Services Regulations, Regulations for the Army 1987, Volume I, paragraph 9(a).

3 Defence Services Regulations, Regulations for the Army 1987, Volume I, paragraph 9(b)(i).

4 Defence Services Regulations, Regulations for the Army 1987, Volume I, paragraph 9(b)(ii).

[0014] Officers exercising powers in certain cases Whenever persons subject to the Army Act 1950 are serving under an officer commanding any military organisation not specifically named under the Act and not less than a brigade, the Government may prescribe the officer by whom the powers under the Army Act as regards such persons shall be exercised¹. The Central Government may confer such powers, either absolutely or subject to certain restrictions and reservations².

1 The Army Act 1950 s 8(1).

2 The Army Act 1950 s 8(2).

[0015] Corps Unless the context otherwise requires, ‘corps’ means any separate body of persons subject to the Army Act 1950, which is prescribed as a corps for the purposes of any of the provisions of the Army Act 1950¹.

(1) Each of the following separate bodies of persons subject to the Army Act 1950 shall be a ‘corps’ for the purposes of Chapter III and s 43(a) of the Army Act 1950 and of the Army Rules 1954 Chapters II and III of, (except r 13) namely:

(a) President’s Body Guard.

(b) The Armoured Corps, Horsed Cavalry Regiments, including Training Centres and non-combatants,

(c) The Regiment of Artillery.

(d) The Corps of Engineers including non-combatants,

(e) The Corps of Signals including non-combatants.

(f) Each regiment or each ungrouped battalion (as the case may be) of Infantry, or in the case of grouped Gorkha Regiments, each group of Infantry including non-combatants.

(g) Each parachute battalion.

(h) The Army Service Corps (including postal).

(i) The Remount, Veterinary & Farm Corps.

(j) The Army Medical Corps.

(k) The Army Dental Corps.

(1) The Army Ordnance Corps.

(m) The Corps of Electrical & Mechanical Engineers.

(n) The Technical Development Establishments.

(o) The Intelligence Corps.

(p) The Corps of Military Police.

(q) The Pioneer Corps.

(r) The Defence Security Corps.

(s) The Army Education Corps.

(r) The Army Physical Training Corps.

(u) The General Service Corps.

(v) The Frontier Defence Corps.

(w) Each Boys Battalion.

(x) Gorkha Boys Company.

(y) Any other separate body of persons subject to the Army Act 1950, employed on any service and not attached to any of the above corps or to any department.

(2) Every unit in which a court-martial book is maintained shall be a ‘corps’ for the purposes of the Army Act 1950 s 106 and the Army Rules 1954 r 183².

(3) For the purposes of every other provision of the Army Act 1950 and of the Army Rules 1954, each of the following separate bodies shall be ‘corps’:

(a) Every battalion.

(b) Every company which does not form part of battalion.

(c) Every regiment of cavalry, armoured corps or artillery.

(d) Every squadron or battery which does not form part of regiment of cavalry, armoured corps or artillery.

(e) Every school of instruction, training centre, or regimental centre,

(f) Every other separate unit composed wholly or partly of persons subject to the Army Act 1950³.

1 Army Act 1950 s 3(vi).

2 Ie for the purposes of the Army Act 1950 s 106 of the Army Rules 1954 r 183.

3 The Army Rules 1954 r 187. The effect of this provision is that each of the bodies specified in the Army Rules 1954 r 187 (1) is a ‘corps’ for the purposes of enrolment, attestation and discharge, except for r 13 of the Army Rules 1954. For all other purposes the bodies mentioned in the Army Rules 1954 r 187 (3) are ‘corps’. The expression ‘corps’ in the Army Rules 1954 is not synonymous with the expression ‘army corps’ and it must receive a restricted construction with narrow connotation as explained in Army Rules 1954 r 187(3). PPS Bedi v Union of India AIR 1982 SC 1413.

[0016] Court martial Unless the context otherwise requires, ‘court martial’, means a court martial held under the Army Act 1950¹. A court martial is a criminal court within the meaning of the Code of Criminal Procedure 1973². The trial by court martial under the Army Act, 1950 shall be deemed to be a judicial proceeding within the meaning of the Indian Penal Code 1860 ss 193 and 228 and the court martial shall be deemed to a court within the meaning of the Code of Criminal Procedure 1973 ss 345 and 346³. For the purpose of the Army Act 1950, there are four kinds of court martial; general court martial, district court martial, summary general court martial and summary court martial⁴. Court martial are ad hoc bodies constituted every time a trial is to be held. They could be constituted by the central gove...