A flight lieutenant training at the Indian Air Force College in Coimbatore, was accused recently of raping a fellow officer. Amitesh Harmukh has sought to prevent a police investigation or a regular trial by a criminal court in the case, and instead wants the case brought before a military Court Martial. While the hearing to decide this matter has been adjourned to September 30, is a Court Martial going to help the survivor? Will it bring speedy justice in the case? Or will the structures involved in the system affect a just trial for the survivor?
Flight Lieutenant Amitesh’s affidavit in court on September 25 cites Section 72 of the Indian Air Force Act, 1950; the accused said that the police had “no authority to arrest [him]. Even if the civil police would have arrested him, the civil police have no authority to produce him before the Judicial Magisterial Court, Coimbatore, for remand into judicial custody. Moreover, as per Indian Air Force Act, 1950, the Court Martial, instituted to try the above offence has jurisdiction.” The affidavit further adds that the police should have handed custody of Amitesh to the Air Force authorities.
What is a Court Martial? What may lie ahead?
At such a juncture, it would be useful for us to understand the process of Court Martial and what challenges may lie ahead in the event the Indian Air Force decides to take over the case.
Shailesh Rai, former policy advisor to Amnesty International explains in an article in Scroll, “a Court Martial is a temporary body assembled by a “convening authority” – a senior military officer – after looking into the charges against an accused soldier. The convening officer also appoints the members of the court-martial, the prosecutor and the defence counsel, who are all officers drawn from the military.” He also adds that at times a ‘judge advocate’ may be present, purely in an advisory capacity, but “but does not act either as a judge or as an advocate for any side.”
These ad-hoc courts are used to try military offences such as insubordination or even civilian offences. In the instance a Court Martial is convened with regard to a civilian offence, it is a decision that the armed forces must take; accused personnel of the armed forces cannot demand to be tried by one in an individual capacity. Secondly, the armed forces can take over a case of rape or murder only if the affected are also serving members.
Experts in military law say that if the armed forces, in this case the Indian Air Force, do decide to take over, an internal inquiry called a court of inquiry is conducted. A chargesheet will be served based on the inquiry, similar to a police investigation, after which a Court Martial is conducted. Both parties are entitled to representation by legal counsels. The Court Martial itself will have five members sitting in judgment and a verdict is passed by majority.
Expert opinions on the efficacy, transparency and access to justice in a Court Martial are divided. While some feel that a trial by Court Martial will lead to an expedient judgement, others worry that such cases would get lost in the military system, and a survivor would stand a better chance in a criminal court of law. It is often the case that verdicts can be overturned by a higher authority.
Speaking to TNM, Air Marshal BU Chengappa says, “Only in a murder case, do the civil police come into the picture. Otherwise, the IAF has its own method of finding out the truth. I have never seen any case so far where a sexual assault case has been handed over to civil police like this. If the complainant is not happy with the action taken, she has ways of representing this with the higher authorities. There are station authorities, then an application can be put with the Command headquarters, right up to the Chief of the Air Staff. Normally, in cases like this, one does not approach the civil police as it will mean going against the organisation. The justice system within IAF is much faster.”
However, Shailesh points out in his article that those who sit in judgment in a Court Martial, unlike in civilian courts, do not have any legal grounding. The judge advocate as mentioned earlier, only sits in as advisor. He also notes that criticism has been raised in the past regarding independence of presiding members of a Court Martial as all of them fall under the convening officer’s chain of command. He goes on to quote Retired Wing Commander UC Jha who has written that a convening officer “exercises command and control over his functionaries in all areas of their service career, including assessment in the annual appraisal reports, future promotions, leave, training courses, posting and appointment.”
Expert opinions also vary on whether or not in this particular case pertaining to the alleged rape by Flight Lieutenant S Amitesh Harmukh of a fellow officer a Court Martial or a criminal court is likely to conduct trial. While there is legal precedence for criminal courts trying armed forces personnel in rape allegations of a civilian, some would point to the Section 72 of the Indian Air Force Act and conclude that it would be mandatory for the Air Force to take over as both the accused and the survivor are serving officers. An opposing view, given that the offence is civil, it would be possible for the case to go either way. A likelihood for a criminal court to try the accused may be possible.
Additionally, some feel convictions are harder to come by in a Court Martial, even in the case of sexual harassment or rape. The recommendation of the General Court Martial are not often the final verdict. For example, in this case, the Chief of Air Force will be able to overturn it. So, while there is a chance of a speedier trial, the survivor stands a better chance with the civil courts than the military courts.
Amitesh, according to his affidavit, is an Administrator/Fighter Controller. The survivor, also an officer who was staying in the college facilities, has alleged that on September 10 Amitesh raped her. She further said that despite registering an internal complaint with the Air Force college, no action was taken for ten days, following which she complained to the Coimbatore Police Commissioner’s office. The Commissioner directed the All Womens’ Police Station (AWPS), Gandhipuram to investigate the matter. Consequently, a case was registered and Amitesh was booked under Section 376 (punishment for rape) under the Indian Penal Code. Currently, Amitesh is in judicial custody until September 30.