Fundamental Rights of Indian Soldiers –

Fundamental Rights of Indian Soldiers

Subject: Indian Polity

Sub-topic: Fundamental Rights

Context:

The Supreme Court to examine a plea seeking protection of human rights of security force personnel, who comes under attack by mobs while performing their duties.

Argument in petition

  • Petition file in the court has urged to formulate a policy to safeguard the rights of armed forces personnel against human rights violations by mobs or individuals while discharging their military duties, thereby protecting their fundamental right guaranteed under Article 21 (life and liberty) of the Constitution.

Area of Concern:

  • Stone-throwers had injured 641 army personnel in 2015. While the number of injured had risen to 9,235 in 2016, the year that saw massive protests in the Valley after the killing of militant poster boy Burhan Wani, about 1,690 army personnel were injured in 2017.
  • About tens of thousands of FIR filed against stone-throwers were supposed to be withdrawn because they were first time offenders. But petition contented that FIRs could not be withdrawn without following due process of law under the code of Criminal Procedure Code.
  • India does not have a standalone law to tackle stone-throwing mobs, but several other countries had stringent measures.
  • FIRs are filed against troops if they take action against stone-throwers in retaliation or in self-defence.
  • It is often pointed out that the soldiers, though perceived as defenders of the national security, have at times indulged in violation of Human Rights, and further the civil administration affords them unjustified protection.

Constitutional Provisions

  • Article 33 & 34 empower the Parliament to restrict, modify or abrogate the fundamental rights to the members of armed forces, Para-military forces, police forces, members of intelligence agencies or similar services. This is required to make the proper discharge of their duties which are sensitive and urgent in nature.
  • This power is available only with parliament and not state legislatures
  • Further, such an act cannot be challenged in a court on ground of its being of violative of fundamental rights. Further, court martial (tribunals under the military law) have been exempted from the writ jurisdiction of the Supreme Court and the high court’s under article 33.
  • Article 33 curtails the following 4 fundamental rights
    • Freedom of speech.
    • Right to form associations.
    • Right to be a member of trade unions or political organizations.
    • Right to communicate with the press, and attend public meetings or demonstrations.
  • The Supreme Court has ruled that these rights can be restricted even for personnel with non-combat roles in the armed forces. This appears logical because the armed forces have to be a disciplined organization.
  • The question which emerges is whether the Fundamental Rights of the members of the armed forces, other than the three listed under Article 19, can also be abrogated even if they do not have any impact on discipline or the performance of duty.
  • A discussion on Human Rights in the context of Armed Forces raises certain political, legal and humanitarian issues giving rise to intense debate.

Deficiencies in the Justice System

  • Right to Bail: There is no provision of bail for a military person arrested on a charge. It is a matter of discretion of the commanding officer, or the superior military authority.
  • Legal aid to Accused: The most significant is the absence of the services of an experienced legal officer as counsel for the accused. Military rules permit an accused to engage a civilian lawyer at his own expense or to be defended by a military officer known as the defending officer.
  • Members of Court Martial: A court martial constituted under military law determines both findings and sentence. The members are neither legally qualified nor trained in the administration of justice.
  • Double Jeopardy: The constitutional protection against double jeopardy enshrined in Article 20(2), whilst available before a court martial is not available to prevent a second trial on the same offence before a civil court.
  • Denial of Right to Appeal: There is no provision of appeal against the finding and sentence of a court martial

 

While taking into account the special characteristics of service life, the following rights guaranteed by the Constitution must also be enjoyed by members of the Armed Forces.

  • Right to Life: Members of the Armed Forces are trained to fight a war, kill enemies and destroy property. A soldier knows that he may have to sacrifice his life while fighting for his country. He undergoes rigorous training and is aware of the hazards to his life, but he may get injured or killed while flying an obsolete aircraft or in an IED explosion. The death of a soldier in these circumstances would amount to human rights violations.
  • Democratic rights: Members of the Armed Forces are being deprived of certain basic human rights, particularly in the case of the lower ranks in the name of ‘service ethos’. The system of sahayak or batsman still prevails in the Indian Army and some of the paramilitary forces.The employment of a combatant in such duties may contribute to increased stress levels and low self-esteem.
  • Working hours: The Armed Forces do not follow any specific rules on work hours, which are based on the premise of the permanent availability of military personnel. If armed forces personnel are required to work for longer than the legally defined hours, they must be monetarily compensated.
  • Archaic legal system: The legal system which governs the armed forces contains archaic provisions which were drafted by the colonial masters to serve their purpose. These provisions are harsh and have not been updated keeping in view the progressive development in the Indian penal system and the norms of international human rights

Conclusion:

  • The members of the armed forces must be entitled to the same rights and protections as all other persons, subject to certain limitations imposed to maintain discipline.

When the human rights and fundamental freedoms of the members of the armed forces are protected within their institution, they will be more likely to uphold these while carrying out their duties.