CJI Dipak Misra seeks Attorney General's aid to tweak court-martial laws for IAF
, ET Bureau|
Feb 16, 2018, 08.11 AM IST
NEW DELHI: Chief Justice of India Dipak Misra has sought Attorney General KK Venugopal’s help in correcting an anomaly in law which allows courtmartialled army or navy personnel a set-off of their pre-trial custody period against their jail terms, but not air force personnel because successive governments have failed to insert a clause to this effect in the Air Force Act.
Now the CJI has asked Venugopal to assist the top court in extending a similar provision to air force personnel.
Both the Army Act, 1950, and the Navy Act, 1957, have explicit set-off provisions, included by way of amendments, to have the period undergone in custody to be set-off against their eventual jail terms. The Air Force Act does not have a similar provision.
A top court bench led by CJI Dipak Misra had noticed this gross anomaly in a case in 2013 and urged the central government at the time to amend the law, but nothing has moved since then.
Justice Misra, then the junior judge sitting alongside Justice BS Chauhan, had authored the judgement.
Achange in the law warrants a parliamentary amendment. Courts are usually loath to direct Parliament to enact any law because of the separation of powers mandated between the three arms of governance in a parliamentary democracy.
Hence any order of the court is couched in terms of a suggestion to the government of the time to bring in a law to this effect. This hasn’t had any impact on governments in a number of contentious issues such as enacting a uniform civil code. The one on a set-off provision in the air force act has also met the same fate. The logic of providing a set-off period is to ensure that the person is not deprived of his liberty any more than required in the law. So the period already undergone by the person while in pre-trial detention is adjusted against the eventual sentence.
Taking note of the anomaly in the law, the court had in 2013 suggested that the government insert an amendment to this effect in the Air Force Act, 1950, as well. In that case, an air force employee had been court-martialled and sentenced to three months in jail. He had urged the court to adjust his one and half months against his jail term.
The court had rejected his plea since the law as it stood did not permit such a set-off. The mechanical transport driver had been court-martialled for absenting himself from work without leave. For this, he was sentenced to three months in jail. In addition, his rank was reduced and he was dismissed from service.
Now the CJI has asked Venugopal to assist the top court in extending a similar provision to air force personnel.
Both the Army Act, 1950, and the Navy Act, 1957, have explicit set-off provisions, included by way of amendments, to have the period undergone in custody to be set-off against their eventual jail terms. The Air Force Act does not have a similar provision.
A top court bench led by CJI Dipak Misra had noticed this gross anomaly in a case in 2013 and urged the central government at the time to amend the law, but nothing has moved since then.
Justice Misra, then the junior judge sitting alongside Justice BS Chauhan, had authored the judgement.
Achange in the law warrants a parliamentary amendment. Courts are usually loath to direct Parliament to enact any law because of the separation of powers mandated between the three arms of governance in a parliamentary democracy.
Hence any order of the court is couched in terms of a suggestion to the government of the time to bring in a law to this effect. This hasn’t had any impact on governments in a number of contentious issues such as enacting a uniform civil code. The one on a set-off provision in the air force act has also met the same fate. The logic of providing a set-off period is to ensure that the person is not deprived of his liberty any more than required in the law. So the period already undergone by the person while in pre-trial detention is adjusted against the eventual sentence.
Taking note of the anomaly in the law, the court had in 2013 suggested that the government insert an amendment to this effect in the Air Force Act, 1950, as well. In that case, an air force employee had been court-martialled and sentenced to three months in jail. He had urged the court to adjust his one and half months against his jail term.
The court had rejected his plea since the law as it stood did not permit such a set-off. The mechanical transport driver had been court-martialled for absenting himself from work without leave. For this, he was sentenced to three months in jail. In addition, his rank was reduced and he was dismissed from service.
