INTRODUCTION
IMAGINE an Indian soldier stationed at a high-altitude post like Bana Post on the Siachen Glacier or Pahalwan Post. After an intense encounter during duty, he is charged with dereliction of duty, and instead of a civilian court, he faces a tribunal trial from his own commanders. His fate will be decided behind closed doors by officers appointed by the military hierarchy, under special rules specifically made for the armed forces. The people who bolster this system argue that it maintains discipline and effective command in defence. Whereas critics counter that it may sacrifice the basic protection of fair trials for the defence personnel.[1] The tension between military necessity and individual rights lies at the ground zero of the altercation over India’s court-martial system in the 21st century.
The question is timely. India’s service tribunals are largely carried over from the colonial era, even as our legal framework has evolved around colonial laws. On the other hand, the Armed Forces operate under statutes like the Army Act 1950, the Air Force Act 1950, and the Navy Act 1957 that specifically limit certain constitutional rights of servicemen in the name of discipline. Article 33 of the Indian Constitution explicitly allows Parliament to restrict fundamental rights for armed forces personnel. Can a justice system designed for the British Indian Army still satisfy these modern ideals? Or has it become an anachronism that needs timely reforms? Relying on doctrinal research, statutory analysis of the Army Act 1950, and an examination of landmark Supreme Court judgments, this blog evaluates the structural deficiencies of India’s military tribunals[2].
COLONIAL ORIGINS AND MILITARY DISCIPLINE
India’s military justice system traces its origin to British colonial rule. After the revolt of 1857, the British overhauled military law to tighten discipline within the Army, treating soldiers as a distinct class expected to obey orders unquestioningly, even in matters involving civilian offences. Independent India largely retained the framework, replacing the colonial Indian Army Act 1911[3] with the Army Act 1950, along with corresponding laws for the Navy and Air Force.[4] Military law was designed primarily for discipline and operational readiness rather than administering broad civilian justice. Recognising the exceptional nature of the system, the Supreme Court in Lt Col Prithi Pal Singh Bedi v Union of India observed that a court-martial could try offences under the Indian Penal Code and even impose the death penalty, despite being composed of military officers rather than civilian judges.[5]
The Constitution recognises the distinct nature of military justice through Article 33, which permits Parliament to restrict certain fundamental rights of armed forces personnel to maintain discipline.[6] Accordingly, the Army Act grants significant powers to the Convening Authority, including initiating prosecution, constituting the court-martial, and supervising proceedings. Further, under sections 153 and 165 of the Army Act, every court-martial conviction requires confirmation by a higher military authority, which may also annul proceedings found to be illegal.[7] While these provisions act as safeguards, they reinforce the command-driven character of the system. Consequently, several procedural protections available in civilian courts remain limited. Court martials are generally not required to provide reasoned judgments, and appellate remedies follow a specialised military process through the Armed Forces Tribunal before judicial review by constitutional courts. This framework prioritises discipline and operational efficiency over conventional criminal procedure.
LEGAL FRAMEWORKS OF COURT-MARTIAL IN INDIA
The Army Act, 1950 and the Air Force Act, 1950 largely follow the old British military code, with amendments made over time. Together, they established the jurisdiction, procedure and punishment for service offences. Under Section 69 of the Army Act, 1950, a court-martial can try service personnel for certain civil offences committed under general criminal law, a jurisdiction explicitly upheld by the Supreme Court.[8]
There are several levels of military courts. A General Court-Martial (GCM), presided over by a senior officer, can try any serious offence and impose severe punishments. A District Court-Martial and a Summary Court-Martial handle lesser charges and lighter punishments. One key difference from civilian courts is the role of the Judge Advocate, who is a legally trained officer who advises the court but does not vote on guilt, somewhat similar to a prosecutor or judge.
Another distinctive feature is the internal appellate process. After a conviction, an accused serviceman can petition the confirming officer to review the verdict before it is confirmed. Once confirmed by command, the next and usually final step is the Armed Forces Tribunal (AFT). Created by the Armed Forces Tribunal Act 2007, the AFT is a specialised tribunal that hears appeals against court-martial convictions and other service disputes.[9] Appeals from the AFT go to the Supreme Court under sections 30 and 31 of the AFT Act.[10]
Thus, since 2007, the AFT serves as a statutory remedy before a soldier can approach a civil court. The Supreme Court has held that section 33 of the AFT Act excludes other courts from intervening when this statutory remedy is available. But importantly, in Union of India v Maj Gen Shri Kant Sharma, the Court reaffirmed that Article 226 of the Constitution survives.[11] It ruled that the High Court’s power of judicial review (under Article 226) is a basic feature of the Constitution that even the AFT Act cannot curtail.[12] However, the Court emphasised that any such petition should be brought only in rare cases and with due regard for the fact that an alternative appeal exists.
Up to this point, India has preserved a separate military justice system balancing discipline with the rule of law. However, concerns remain over limited access to legal counsel, partially closed trials, and command influence over proceedings.
JUDICIAL RESPONSE
The Indian Judiciary has never treated court-martials as fully immune from review. The courts have repeatedly accepted that military discipline is important, but they have also maintained that discipline cannot become a shield for illegality. In SN Mukherjee v Union of India, the Supreme Court held that even though court-martial proceedings are different from ordinary criminal trials, they are still subject to the basic requirements of fairness. The Court also recognised that reasons must ordinarily be recorded in administrative and quasi-judicial decisions.[13]
A similar approach is visible in Lt Col Prithi Pal Singh Bedi v Union of India, where the Court accepted the special character of military law but refused to treat it as outside constitutional control, balancing the need for strict discipline in the armed forces with constitutional accountability.[14]
WHY THE COURT-MARTIAL SYSTEM STILL MATTERS
Asking whether the court-martial is relevant is different from asking whether it is perfect. The real question is whether it serves a purpose that a civilian court cannot effectively replace. The answer is yes.
The Armed Forces operate in combat zones, border areas, and remote locations where discipline and swift decisions are essential. Delays that are common in civil courts could fatally undermine operational effectiveness.[15] Offences such as desertion, disobedience, and absence without leave affect not only the individual but the readiness and morale of entire units. A specialised justice system is necessary.
At the same time, relevance doesn’t mean the system is beyond criticism. While court-martial remains vital for maintaining military discipline, it must continue to evolve to ensure greater fairness, transparency, and accountability.
CONCLUSION
For over 70 years, the court-martial system has remained vital to the Indian military justice framework, providing a specialised mechanism to maintain discipline and operational effectiveness where civilian courts may not always be practical. At the same time, military justice must reflect modern constitutional values of fairness and accountability. Recent judicial decisions, the establishment of the Armed Forces Tribunal, and continued judicial review show that military discipline and constitutional oversight can co-exist.
The debate on military justice is not about abolishing court martials, but about making them fairer. To bridge the gap between military discipline and constitutional rights, India must now bring its military justice system in line with modern global standards. For instance, the United Kingdom’s Armed Forces Act 2006 established an independent service Prosecuting authority[16]. India should adopt similar safeguards through clear legislative reforms. The military law should be amended to create an independent prosecuting authority separating prosecution from the chain of command and limiting the influence of the Convening Authority. Army Rule 62 should also be amended to require brief but clear reasons for every verdict. This would make military justice more transparent, strengthen accountability and bring court martial proceeding closer to the honourable Supreme Court’s principles laid down in S.N. Mukharjee. Conclusively, the Armed Forces Tribunal must be functionally fortified by filling judicial vacancies and improving infrastructure to ensure the timely disposal of cases.
A system that preserves operational efficiency while implementing these targeted procedural safeguards will strengthen not only military discipline but also public confidence in military justice.
Author(s) Name: Farhan Javed Pattekari (Rizvi Law College, Mumbai University)
References:
[1] Law Commission of India, Amendment of Army, Navy and Air Force Act (Law Com No 169, 1999) ch 2
[2] Constitution of India, 1950 art 33
[3] Indian Army Act, 1911 (repealed)
[4] Army Act 1950, Air Force Act, 1950 and the Navy Act, 1957.
[5] Lt Col Prithi Pal Singh Bedi v Union of India, (1982) 3 SCC 140.
[6] Constitution of India, art 33
[7] Army Act 1950, ss 153, 165.
[8] Army Act 1950, s 69.
[9] Armed Forces Tribunal Act 2007.
[10] Armed Forces Tribunal Act 2007, ss 30, 31.
[11] Union of India, v Maj Gen Shri Kant Sharma (2015) 6 SCC 773 [36].
[12]Constitution of India, 1950 art 226.
[13] SN Mukherjee v Union of India, (1990) 4 SCC 594 [39].
[14] Lt Col Prithi Pal Singh Bedi v Union of India, (1982) 3 SCC 140.
[15] National Judicial Data Grid, ‘Pending Cases Dashboard’ (Ministry of Law and Justice, 2026) <https://njdg.ecourts.gov.in> accessed 18 July 2026.
[16] Armed Forces Act 2006 (UK), s 116; National Defence Authorisation Act for Fiscal Year 2022, Pub L No 117-81.