Crim Law Prjct

The Martial Law of Arrest

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CRIMINAL LAW -II

THE MARTIAL LAW OF ARREST (An analysis from a rights based approach)

Submitted to: Prof. KVK Santhy, Professor of Criminal Law, NALSAR, Hyderabad Submitted by: Aditya Swarup Roll no. 06 II year

Date of Submission: 16th March 2007

NALSAR UNIVERSITY OF LAW, JUSTICE CITY, HYDERABAD.

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The Martial Law of Arrest

i TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................ii Statutes Referred..........................................................................................ii Cases Referred ............................................................................................ii INTRODUCTION ..............................................................................................1 1. MARTIAL LAW AND THE CONSTITUTION..........................................................2 2. ARREST UNDER THE ARMY ACT, 1950.............................................................6 1) Detention Period.......................................................................................6 2) Rights of the Arrested Person.....................................................................7 3) Capture of deserters................................................................................10 CONCLUSION ................................................................................................11 BIBLIOGRAPHY................................................................................................iii

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INDEX OF AUTHORITIES

Statutes Referred Constitution of India Army Act, 1950.....................................................................................................2, 5, 7, 11 Army Rules, 1950..............................................................................................................10 Code of Criminal Procedure, 1973........................................................................2, 7, 8, 12

Cases Referred

AK Gopalan v. State of Madras, AIR 1950 SC 27..............................................................3 Amarendranath v. Union of India, 1977 CriLJ 493.............................................................7 Artillery Records Instructions, 1981.................................................................................10 DK Basu v. State of West Bengal, AIR 1997 SC 610...........................................................8 GS Sodhi v. Union of India, 1991 (2) SCC 382...................................................................4 Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461...............................................3 Miranda v. Arizona, 1966 US 436.......................................................................................8 Prith Pal Bedi v. Union of India, AIR 1982 SC 1413.........................................................5 Ram Sarup v. Union of India, AIR 1965 SC 247.................................................................5 Roy Ajai Kumar v. Union of India.......................................................................................9 SPN Sharma v. Union of India, AIR 1968 Del. 156............................................................7 SS Chahal v. Union of India, (2005) 139 PLR 49...............................................................5 Sukhdev Singh Gill v. State of Punjab, (2000) 8 SCC 492..................................................5 Sunil Batra v. Delhi Administration, AIR 1978 SC 1675..................................................10 Surender Kumar Sahni v. Chief of Army Staff, WP 11839/2006, decided on 11/01/2007...5 Vinayak Daultatrao Nalawade v. Core Commander, Lt. Gen. G.O.C. H.Q. 15 Corps. 1987 LAB.I.C. 860...................................................................................................................4 Virender Kumar v. Chief of Army Staff, AIR 1986 SC 1060...........................................11 - Criminal Law II -

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INTRODUCTION

Martial law is a system of rules that govern the armed forces in our country. Such laws are separate from ordinary procedure and are meant to govern over a separate class of people in the Country. Nevertheless, they do remain citizens and have certain rights which may be curtailed to suit the needs and demands of the forces. For such purposes, each branch of the Armed Forces, the Army, Airforce and the Navy have their own laws. In this project the though, the researcher would only deal with the provisions of the Army Act, 1950. As regards Criminal Procedure too, the situation remains the same. While ordinary persons are governed by the Code of Criminal Procedure, 1973, armed forces personnel are governed by the Army Act, 1950 and the Army Rules, 1951. Both these legislations have prescribed different procedures for the criminal process in the army. But then how are they different from ordinary procedure? Can the Army Act compromise the fundamental rights guaranteed in Part III of the Constitution? How do we understand the Martial Law of arrest? These are some questions that the researcher has sought to answer in his project. This project aims to analyze the provisions related to arrest in the Army Act, 1950 and understand them from a rights based perspective. This involves, looking at the law from the perspective of violation of Fundamental Rights and how Article 33 of the Constitution seeks to act as an obstacle to the situation.

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1. MARTIAL LAW AND THE CONSTITUTION

The Constitution of India is regarded as the paramount parchment in our country. All laws are subjected to scrutiny by the Constitution such that any piece of legislation that violates any of the rights mentioned in part III of the Constitution will be declared unconstitutional.1 Such fundamental rights apply to all the citizens of our country irrespective of any caste, creed, race, sex or birth.2 Furthermore, any citizen can move the Court under Article 32 of the Constitution on the ground that his fundamental rights are being violated3. The Supreme Court can then issue writs in the nature of habeas corpus, mandamus, certiori, prohibition or quo warranto to secure the fundamental rights of such a citizen. A problem however arises when we have to look at fundamental rights in light of the laws governing Armed personnel and other martial laws in the Country. This is because Article 33 of the Constitution overrides the rights guaranteed under Article 32 of the Constitution. Article 33 reads4; Article 33; Parliament may, by law, determine to what extent if any of the rights conferred by this part shall in their application to,(a) the members of the armed forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organization established by the State for purposes of intelligence and counter intelligence; or

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Article 13 (2), Constitution of India states; The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. 2 Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461 : AK Gopalan v. State of Madras, AIR 1950 SC 27. 3 Article 32, Constitution of India; Article 32 (1). The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed. (2). The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiori, whichever may be appropriate for the enforcement of any of the rights contained by this part. 4 Article 33, Constitution of India.

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(d) persons employed in. or in connection with the telecommunication systems setup for the purposes of any force, bureau or organization referred to in clauses (a) to (c). be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. This Article clearly says that the constitutional rights shall not be guaranteed to armed forces personnel unless stated here wise. This then is a clear abrogation of the rights guaranteed to them as citizens of this country. Article 33 carves out an exception in so far as the applicability of Fundamental Rights to members of the Armed Forces and the Forces charged with the maintenance of public order is concerned5. It is elementary that a highly disciplined and efficient armed force is absolutely essential for the defence of the country. Defence preparedness is in fact the only sure guarantee against aggression. Every effort has therefore to be made to build up a strong and powerful army capable of guarding the frontiers of the country and protecting it from aggression. Now obviously no army can continuously maintain its state of preparedness to meet any eventuality and successfully withstand aggression and protect the sovereignty and integrity of the country unless it is at all times possessed of high morale and strict discipline. The Constitution makers therefore placed the need for discipline above the fundamental rights so far as the members of the Armed Forces and the Forces charged with the maintenance of public order are concerned and provided in Article 33 that Parliament may by law determine the extent to which any of the Fundamental Rights in their application to members of the Armed Forces and the Forces charged with the maintenance of public order, may be restricted or abrogated so as to ensure the proper 5

The Court in Vinayak Daultatrao Nalawade v. Core Commander, Lt. Gen. G.O.C. H.Q. 15 Corps. 1987 LAB.I.C. 860, held that “It is true that the persons bound by the Army Rules belong to a disciplined force but they do not lose their right under Article 14 of the Constitution on that ground. A person subject to Army Act does not cease to be a citizen of India and he has certain rights which are to be enforced subject to Article 33 of the Constitution. A special procedure is given in the Army Act and the Rules framed thereunder for dealing with the person subject to the Army Act. The procedure does not derogate from the generality of power conferred by Article 33 of the Constitution.” See also GS Sodhi v. Union of India, 1991 (2) SCC 382, where the Court held that it is one of the fundamental features of our Constitution that a person subject to Army Act continues to be a citizen of India and is not wholly deprived of his rights under the Constitution. In the large interests of national security and military discipline the Parliament may restrict or abrogate such rights in their application to Armed Forces but the basic feature which the Parliament would not like to alter is that persons subject to Army Act cannot be denied equality before law and equal protection of law.

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discharge of their duties and the maintenance of discipline among them6. Article 33 on a plain grammatical construction of its language does not require that Parliament itself must by law restrict or abrogate any of the Fundamental Rights in order to attract the applicability of that Article. What it says is only this and no more, namely, that Parliament may by law determine the permissible extent to which any of the Fundamental Rights may be restricted or abrogated in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order 7. Parliament itself can, of course, by enacting a law restrict or abrogate any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order as, in fact, it has done by enacting the Army Act, 1950, the provisions of which, according to the decisions of a Constitution Bench of this Court in Ram Swamp v. Union of India8 are protected by Article 33 even if found to affect one or more of the Fundamental Rights. But having regard to varying requirement of army discipline and the need for flexibility in this sensitive area, it would be inexpedient to insist that Parliament itself should determine what particular restrictions should be imposed and on which Fundamental Rights in the interest of proper discharge of duties by the members of the Armed Forces and the Forces charged with the maintenance of public order maintenance of discipline among them. The extent of restrictions necessary to be imposed on any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them, would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula9. The Constitution makers were obviously anxious that no more restrictions should be placed on the Fundamental Rights of the members of the Armed Forces and the Forces charged with the maintenance of public order than are absolutely necessary for ensuring proper discharge of their duties and the maintenance of discipline 6

Surender Kumar Sahni v. Chief of Army Staff, WP 11839/2006, decided on 11/01/2007. In Prith Pal Bedi v. Union of India, AIR 1982 SC 1413, the Court held that Armed Forces are excluded from Article 311 of the Constitution of India. The normal protections of fundamental rights available to civil servants under Article 311 are not applicable to civil servants. 8 Ram Sarup v. Union of India, AIR 1965 SC 247. 9 SS Chahal v. Union of India, (2005) 139 PLR 49 : Sukhdev Singh Gill v. State of Punjab, (2000) 8 SCC 492. 7

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among them, and therefore they decided to introduce a certain amount of flexibility in the imposition of such restrictions and by Article 33, empowered Parliament to determine the permissible extent to which any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged with the maintenance of public order may be restricted or abrogated, so that within such permissible extent determined by Parliament, any appropriate authority authorised by Parliament may restrict or abrogate any such Fundamental Rights. There is no definitive list as to what all are the rights that are not available to armed forces personnel. The list is not exhaustive in nature. A few of them are; the right to habeas corpus, the freedom of movement, the right to free speech and expression and the right to express your religious sentiments.

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2. ARREST UNDER THE ARMY ACT, 1950

Arrests under the Army Act are governed by Sections 101 to 107 in Chapter IX of the Act. By a simple reading of these sections we can see that there is a lot of difference between them and ordinary provisions in the Code of Criminal Procedure. In the pages to follow, the researcher would lay down some of the important aspects of the martial law of arrest.

1) Detention Period Under the Army Act, 1950, It shall be the duty of every commanding officer to take care that a person under his command when charged with an offence is not detained in custody for more than forty-eight hours after the committal of such person into custody is reported to him, without the charge being investigated, unless investigation within that period seems to him to be impracticable having regard to the public service.10 Contrasting this with Section 167 of the Code of Criminal Procedure 11, we see that martial law is way different and stricter in nature. Under ordinary criminal law, it is imperative that an arrested person be brought before a magistrate within 24 hours of his arrest. This is in light of his rights to habeas corpus and life as guaranteed under the Constitution. Not following such a procedure under Section 167 would entail the freedom of a person and also a provision for suitable compensation. The principles laid down in the Army Act, 1950 are applicable only in so far as they deal with matters related to the interest and security of the State. In civil matters, ordinary civil law will be applicable12. In Das Amarendranath v. Union of India, the Court held that petitions for habeas corpus under Article 21 and the Cr.P.C are not 10

Section 102 (1), Army Act, 1950. Section 167, Code of Criminal Procedure, 1973. 12 SPN Sharma v. Union of India, AIR 1968 Del. 156. 11

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applicable to martial law. The Court further stated that military persons are a class amongst others and there is no violation if they are to be treated differently. 13 So then, martial law is a clear exception to ordinary procedural laws. 2) Rights of the Arrested Person

The case of DK Basu v. Union of India14 laid down certain guidelines that must be followed every time a person is arrested. They were in someway similar to Miranda Rights.15 Even before DK Basu, the Cr.P.C and the Constitution have provisions that seek to protect the rights of the accused16. The rights to a free and fair trial and that of a counsel are of primary importance. In a gist, these rights include; •

To be informed of the grounds of arrest

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That their relatives be informed as soon as possible of their arrest.

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That they be provided with the services of a lawyer.

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That the right to counsel be exercised.

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That they not be tortured or suffer any form of inhuman treatment.

While such provisions exist in the ordinary legal system, the problem lies in the fact that if any of these rights are not provided or violated, then such violation will not affect the investigation process and mere compensation will be provided.17 Thus then, the law has never sought to protect the accused’s rights and deter persons from not providing for them. In the United States however, the rule is clear after Miranda that a violation of 13

Amarendranath v. Union of India, 1977 CriLJ 493. DK Basu v. State of West Bengal, AIR 1997 SC 610. 15 Miranda v. Arizona, 1966 US 436, stated that everytime a person is arrested his rights need to be read out to him/her. They are; 1) the right to remain silent, 2) The right to have access to a lawyer, 3) the right to know of the grounds of arrest. 16 Article 22, Constitution of India states that, “Article 22. Protection against arrest and detention in certain cases.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” 17 Section 45, Code of Criminal Procedure, 1973. 14

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such rights would result in the accused being set free. Reliance then is placed on the protection of rights rather than the prevention of crime.18

In contrast, the martial law provisions regarding arrest of persons are way different. The law recognizes that the accused has a right to be informed of the grounds of his arrest, to have a military counsel or representative and a free and fair trail. As regards the grounds of arrest, Section 50 of the Army Act19 provides for punishment to the Officer who effects the arrest of his subordinate and fails to give the account of the accusation which laid the arrest of that person in writing, signed by himself, as soon as practicable, and in any case within 48 hours after the arrest. This penal provision is a clear indication that the Officers who are effecting the arrest of the subordinates shall be more careful in making such arrest and shall, take all precautions to comply with the provisions of the Act, since the arrest of the person working under him amounts to curtailing the right to movement guaranteed under Article 21 of the Constitution of India, subject to reasonable restrictions. When the restriction is an exception, the Officers who are effecting the arrest have to furnish necessary material to the person whom they are arresting by giving the causes of arrest and the offence for which he is being charge-sheeted.20 Martial law also has a concept of ‘close arrest’. It means that detention of a person in an area where he or she has no contact with anyone from the outside. It may not necessarily be in jail but also in a house or some other place. An example would be the arrest of Flt Lt. Anjali Gupta who falsely charged her superior officer for sexual harassment and was later court-martialed. This is different from an ‘open arrest’ where 18

Miranda v. Arizona, 1966 US 436. Section 50, Army Act, states that, “Section 50: Irregularity in connection with arrest or confinement. -Any person subject to this Act who commits any of the following offences, that is to say, (a) Unnecessarily detains a person in arrest or confinement without bringing him to trial or fails to bring his case before the proper authority for investigation; or (b) Having committed a person to military custody fails without reasonable cause to deliver at the time of such committal or as soon as practicable, and in any case within forty-eight hours thereafter, to the officer or other person into whose custody the person arrested is committed, an account in writing signed by himself of the offence with which the person so committed is charged; Shall, on conviction by court-martial, be liable to suffer imprisonment for a term, which may extend to two years or such less punishment as is in this Act mentioned. 19

20

Roy Ajai Kumar v. Union of India,

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the person is left free but has to periodically report to the officer or police station, like every 6 hours or so. Martial law does not provide for this concept. As regards bail in ordinary law, the Magistrate may prescribe certain conditions when giving bail similar to an ‘open arrest’. However the Court has held that even in times of close arrest, the rights of the person in the army will not be compromised. In Roy Ajai Kumar v. Union of India, the Court stated that it is no doubt true that discipline has to be maintained in the Army and the concerned Officer shall be vested with certain powers to deal with the soldiers and other subordinate Officers to follow their instructions and to act according to their commands. But, the Officers on the pretext of discipline are not supposed to curtail the freedom of the personnel working under them or infringe the rights guaranteed under Article 21 of the Constitution of India and to the extent permissible under the provisions of the relevant statutes. There is no meaning in repeatedly saying that the Constitution protects the rights of the individuals as enshrined under Part III of the Constitution of India unless it is put to practice. The rights of the personnel also cannot be taken away or abridged completely except according to the procedure established by law as laid down by the Supreme Court in Sunil Batra v. Delhi Administration21. The concerned authorities are entitled to impose reasonable restrictions on such rights as provided under the relevant statues or statutory rules to maintain law and order in all disciplines. But, that does not give unfettered powers to those authorities to deal with the lives and liberties of the people as they like. So long as the authorities exercise their powers within the limits prescribed under the relevant statutes, the Courts do not interfere, but, when once they cross a line known as "Lakshmana Rekha" the Courts being the custodians of the people are bound to react and correct the errors committed by the concerned authorities either to prevent the abuse of the process of law or failure to follow the procedure established by law. Thus remaining the position of arrest in martial law, an arrest made not in accordance with such provisions will be deemed an illegal arrest and the accused will be set free. Such rules are much more advanced that those in ordinary provisions as they seek to protect the rights of the accused.

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Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.

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3) Capture of deserters Another unique provision in martial law is that of the capture of deserters. A deserter is a person who escapes from active service in the armed forces. The expression ‘deserter’ or ‘desertion’ however are not defined by the Army Act 1950. The Artillery Records Instructions however define ‘desertion’ as “if is person so absented himself from leave and during such period intended to either quit the service or avoid some particular duty for which he would be required”.22 Once a person deserts, the Commanding Officer may issue instructions to required civil authorities and order for his arrest if he is caught. Such arrest may be made without a warrant.23 In Virender Kumar v. Chief of Army Staff, the Court held that even if it is found that no desertion is committed by the accused, then the rights of habeas corpus and others guaranteed under part III and ordinary Cr.P.C provisions are not available to him. Martial law is a lot different from ordinary law and in a sense it involves the voluntary waiver of ordinary laws and rights.24

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Para 418, Artillery Records Instructions, 1981. See also Army Rules, 1950 Section 105, Army Act, 1950 states, “Section 105: Capture of deserters. - (1) Wherever any person subject to this Act deserts, the commanding officer of the corps, department or detachment to which he belongs, shall give written information of the desertion to such civil authorities as, in his opinion, may be able to afford a distance towards the capture of the deserter; and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a Magistrate, and shall deliver the deserter, when apprehended, into military custody. (2) Any police officer may arrest without warrant any person reasonably believed to be subject to this Act, and to be a deserter or to be travelling without authority and shall bring him without delay before the nearest Magistrate, to be dealt with according to law. 24 Virender Kumar v. Chief of Army Staff, AIR 1986 SC 1060. 23

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CONCLUSION

Thus we have seen that the martial law of arrest differs in a large way from the ordinary laws of arrest. Such laws are repressive but are required for the proper functioning of the armed forces. The rights of the accused are in a way secured and differ in procedure. The need for discipline, valour and command are seen to be attached to the principles safeguarding the right to a safe trial within the criminal justice process, rules of evidence, procedure, substantive law and the functions and normative foundations of the trial process. The laws of arrest are in light of such beliefs and principles. This project then has aimed given a comprehensive study of the martial law of arrest in this project. His aim has been to create an understanding of the area of law and compare it with existing provisions of arrest with respect to the Code of Criminal Procedure, 1973 from a rights perspective. It may be noticed that he has not dealt with concepts of bail and the offences in the Army Act, 1950 but has sought to restrict the scope of this project merely to the rights of an army personnel who is arrested. He apologises for any inadequacy on his part.

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BIBLIOGRAPHY

Anthony Duff and Lindsay Farmer, The Trial on Trail: Truth and Due Process, 1st ed. 2004, Hart Publishing : Oregon. DD Basu, Shorter Constitution of India, 4th ed. 2002, Wadhwa Publishers : New Delhi. Nilendra Kumar, Case Studies on Military Law, 1st ed. 2003, Universal Law Publishing : New Delhi. Nilendra Kumar, Court Martial and Military Matters, 1st ed. 2001, Manas Publications : New Delhi. Richard Wright and Mitchell Miller, (eds.), Encyclopedia of Criminology- vol III, 1st ed. 2005, Routledge : New York.

*all the above books are available in the Nalsar Library.

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