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The Technicalities Of Military Desertion In India: A Comparative Analysis Between Section 38 Of The Army Act, 1950 And Art. 85 Of The Uniform Code Of Military Justice By: Anusha Bhaskaran
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The Technicalities Of Military Desertion In India: A
Comparative Analysis Between Section
38 Of The Army Act, 1950 And Art. 85 Of The Uniform Code Of Military Justice
Authored By: Anusha Bhaskaran
3rd year Law Student 5 BBA LLB B
School of Law, Christ (Deemed to be)
University
Abstract
Military Desertion is a crime that requires clear and detailed laws
considering the grave nature of penalties laid down for it in the Army Act, 1950. Section 38 of the Act consists of laws regulating desertion in India, mainly prescribing the penalties
for the same. However the section lacks
clarity on what constitutes desertion, the essentials and the circumstances
resulting in the deserter's
punishment. An offence that results in serious penalties such as death requires
more specificity in its laws and this
paper addresses the logic and rationale behind this contention. Absence without leave or AWOL and
Desertion both have similar implications but there exist certain essential differences that justify their severalty. The
paper highlights the distinctness of the
two crimes while simultaneously comparing the attention to detail given to both
sections of the Act. The author in
this paper, aims to identify and highlight the absence of the essential elements of desertion which are determined
by understanding its causes, without which efficient and purposeful law-making is unachievable. The lack of clarity and detail in Section 38 is highlighted with reference and in
comparison to the Uniform Code of Military Justice of the United States of America.
Keywords: Desertion, Penalties, Section 38, Army Act of 1950, UCM
Introduction
The
Indian Army soldier is imbued with a set of principles, mainly a strong sense
of duty and love for their country
that motivates them to willingly face a variety of obstacles and challenges and when called
upon, to make the ultimate sacrifice in the service of the country. All soldiers are born with the Army's mentality
instilled in them: a relentless drive to succeed, acceptance of their enormous responsibility, and an
uninhibited willingness to risk their lives to save others, with the assurance that the country will
care for them and their families in return. The spirit of brotherhood, regardless of caste, creed,
religion, the motto - “One for all and all for one”, the spirit of self sacrifice for the sake of ‘Naam, Namak and
Nishaan’ which refer to the honour of the
nation, loyalty towards the nation and the insignia of the nation respectively,
fearlessness and valour in combat
while fighting against all odds and even in the face of death, forthrightness, discipline, integrity and courage - the
emotion of all these qualities flows within the soldier’s being. 1 The Army, as an institution, prioritises honour and discipline through
stringent regulation and is
regulated by the Army Act, 1950. Section 38 of this Act speaks about desertion which in simple terms means unauthorised
absence from military duties without an intention of returning. When a soldier deserts his duties, he is called a
‘deserter’ who will be tried by the Martial
Tribunal (SCM)2 and according to this Act, be granted imprisonment
or a death penalty. The penalties
prescribed in the military statutes
are not the same for every nation
and are formulated according to the
ideals and beliefs of that nation. Nevertheless, desertion of military duties is considered a very serious
offence across all borders due to their common objective of service to the nation. The Army Act of
1950 regulates the Indian Army wherein Section 38 lays down the laws regarding desertion. It is contended that there
exists ambiguity in Section 38 with regard
to the essential elements of desertion that may result in severe punishment.
Since the objective of this paper is
to analyse the letter of the law by addressing the ambiguity of this section, the research methodology
incorporated in this paper is Doctrinal. The Author’s claim in this paper shall be supported
by case laws,
journal articles and book chapters
pertaining to punishment of
desertion along with a comparative study between the Army Act, 1950 and the Uniform Code of Military Justice (USA).
1 Ideas and Ethos - The Official
Home Page of the Indian
Army, India, available at:
https://indianarmy.nic.in (last visited
on November 26, 2022)
2 Wing Commander U C Jha, “Military Justice
System In India”,
The United Service Institution of India (USI) Journal (2006)
Causes
for Desertion
In order to understand the causes of desertion, it is vital to understand
the types of desertion. There are
four main types of desertion - Desertion with the intent to remain away
permanently, Desertion to avoid
hazardous duties or evade important responsibilities, Attempted Desertion and Desertion before the acceptance of
resignation3. These are regulated under Section 38 of the Army Act, 1950. Section 38(1) lays down
penalties of death or imprisonment for someone who deserts or attempts to desert their military duties during times
of active duty i.e. war and also when under orders for active duty.4
A soldier who carries strong values and passion towards their role and
has vowed to uphold those values can cause a stir when they decide to desert their duties.
Statutes and policies
are formulated by the people,
for the people and therefore, talking about what instigates such a decision is important. One of the main
reasons is the element of fear which stems from the unimaginable danger and threat to life the troops face. Brigadier
Sukhdev Singh in his chapter from an
edited book called ‘Military Musings: 150
years of Indian Military Thought from The Journal
of The United Service Institution of India’, points out the ignorance that
a soldier’s mental health has been
subjected to. He describes the way the soldier’s duty-centric nature is taken for granted and how “fantastic” it
is to suggest that any soldier can get used to exposing themselves to constant danger of life. Peace time indices of
soldiers’ reaction to battle conditions are
taken into consideration which could not be further from the reality of the
soldiers’ actual battle experiences.
Brigadier Singh emphasises the need for scientific studies and surveys to be conducted in order to explore the
soldiers’ reactions and find “remedial measures for adverse reactions.” He further observed
that all men suffer from an element
of fear for personal safety
and act on instincts of self-preservation. Consequently, they also worry
about the effect on their families in the event of them getting injured
or losing their lives. A natural fear like this obviously is quite different from
cowardice and causes them to abandon duties.5 The records of a General
Courts Martial can show certain
records and various other causes of desertion and absence without leave. Drug and alcohol addiction, mental deficiency or weakness,
3 By
Admin, Court Martial
law - The Four types
of Military Desertion, available at:
https://courtmartiallaw.com/
4 Army Act, 1950, India, available at: https://indianarmy.nic.in/writereaddata/documents/ARMYACTS190216.pdf
5 Brigadier Sukhdev Singh, “Reactions of Soldiers in Battle”, Rana T. S. Chhina, Military Musings:
150 years of Indian
Military Thought from The Journal of The United Service Institution of India, page
261 (Speaking Tiger, 2021)
fear
of punishment, failure to understand
the reasons for discipline, illness or physical strain, illness with an undetermined cause, weakness of character, dissatisfaction with the organisation, homesickness, poverty of dependents, desire to marry and many
more. Each of these causes include cases
of both, desertion as well as
absence without leave (AWOL).6
Distinction
between Desertion and Absence without Leave
Section 38 of the Army Act, 1950 lays down the law for Desertion and
Section 39 of the same Act lays down
the law for Absence without leave. While the two are essentially similar, they
are not exactly the same hence
proving the need for a separate section for each.
Absence without leave or AWOL, according to the Oxford Dictionary, refers
to “a situation wherein a soldier has
left their group without permission.” Desertion refers to a situation wherein the soldier leaves without permission without an intention
of returning. Armed services personnel
are deemed AWOL if they skip a scheduled meeting,
leave the location,
or are otherwise absent from their unit or designated area of duty. A
service member may be absent without
authorization in the following circumstances, according to the Manual for
Courts-Martial (PDF) which are
included in the laws of the US Military (including the elements of each):
1.
Failing
to go to the designated time and location of duty
The
accused was assigned a certain shift and location for duty. He was aware of the
time and location, but he did not
arrive at the designated place of duty on time without permission.
2.
Leaving
the designated location of duty
The
accused was assigned to a specific location of duty; he was informed that it
was against the rules for him to
leave without permission, but he nonetheless did so after reporting for work.
3.
Absence from the group,
business, or place
of work
The accused
excused themselves without
permission from a place of employment, unit, or
organisation, and their absence lasted for a specific amount of time or was terminated by apprehension.
6 E. N. Woodbury, “Causes of Military
Desertion: A Study
of Criminal Motives”
, Vol. 12, Journal of Criminal Law and Criminology, 214 (1921)
4. Failure to report to a unit, organisation, or place of
service with the intention of avoiding field exercises (same
components as #3, but in addition to the following)
The accused intended to avoid all or some of the manoeuvres or field
exercises since he knew his absence
would happen during them.
5.
Giving
up on a watch or guard
The
following circumstances apply: The accused was a member of a guard, watch, or
duty; the accused absconded from this
guard, watch, or duty; the absence was without permission; and the accused
meant to quit their position.7
According to Section 39 of the Army Act of 1950 in India, any person
subject to this Act who commits any of the following offences,
that is - absents himself without leave; or without sufficient reason overstays leave granted to him; or being on leave
of absence and having received information from proper authority
that any corps, or portion
of a corps, or any department,
to which he belongs, has been ordered on active service, fails, without
securing leave, shall be guilty of an
offence under this section. When on parade or in the line of march, without good reason or without permission
from his superior officer, he must leave. When in camp, garrison, or elsewhere, he must be found outside of any
boundaries set by any general, local,
or other order, without a pass or written permission from his superior officer.
He must also attend school when duly
ordered to do so without permission from his superior officer or without good
reason.8
A serviceman of the Army is said to have deserted his duties if he
permanently leaves his post without
authorization. The following types of desertion, as mentioned before, are included
in the Manual for Courts-Martial of
the US Military, along with descriptions of each
type:
1. Desertion with the intention of staying away forever
The accused abandoned his or her group,
workplace, or place of responsibility; the absence lacked authorization. The accused intended to leave his or her
unit, organisation, or place of duty at
some point during the absence, and the accused either stayed gone until the
stated date or was caught.
7 Failure to report
for Duty: AWOL, Desertion and Other Charges,
available at:https://www.findlaw.com/
8 Army Act, 1950, s. 39
2. Desertion with the aim of
evading a dangerous task or an
important service
The
defendant left their team, business, or place of employment. He did it with the
intention of avoiding performing some task or service. The work needed to be done included danger or was of a particularly significant nature;
the accused was aware that the work was needed but failed to show up until the alleged date.
3.
Desertion before
notice of acceptance of resignation
The
defendant had submitted his or her resignation and was a commissioned officer.
The accused left their position
prior to getting notification that their resignation had been accepted. They
left with the intention of
moving away permanently, and they stayed away up until the alleged date or until they were found.
If the effort goes further than simple planning, it can also be tried as
a military crime. The harshest
penalty for deserting is dishonourable discharge, loss of all pay, and five
years in prison. But in times of war, the death sentence may be used for
deserting (at the discretion of the court-martial)9.
Desertion laws according
to the Army Act, 1950, however, lack the clarity,
specificity and variety of
circumstances and possibilities that can serve as grounds for penalisation of a
deserter from the Indian Army unlike
Section 39 of the same Act containing laws concerning absence without leave is very specific about what
qualifies for punishment under the same. Essentially AWOL and Desertion are very similar.
However, a statute requires every word, every detail to be present under a certain section in order
to serve its purpose of regulation. No matter how similar two crimes may be, both crimes need to
have their own definitions, laws and respective penalties clearly mentioned in the statute.
9 Failure to report for Duty: AWOL, Desertion and Other Charges,
available at:https://www.findlaw.com/
Examining
the constituents of Section 38
In Section 38 of the Army Act, 1950,
38(1) states that any person subject to this Act who deserts or attempts to
desert the service shall be liable to death or such lesser punishment
upon conviction by the
court martial, if he
commits the offence while on active duty or while under orders for active duty as are mentioned
in this Act; if he commits the offence under any other circumstances,
he shall be liable to imprisonment for a term that may extend to seven
years or such lesser punishment as is mentioned in this Act.
38(2) states that on conviction by a court martial, anybody
subject to this Act who knowingly harbours any such deserter is subject to imprisonment for a term that may
not exceed seven years or such lesser punishment as specified in the Act. Lastly,
38(3) states that any person
subject to this Act who possesses information of any desertion or attempt at desertion of a person subject
to this Act and does not immediately notify his own or another superior officer or take any steps in his power to have
the person apprehended is subject to imprisonment for a term that may go up to two years or such lesser punishment as is mentioned in this Act upon conviction
by court-martial10.
Clauses (2) and (3) serve their purpose of being “sub clauses”. They are
an extension of the first sub clause
which is supposed to be the introduction clause to section 38. Ironically, this
is where the question mark lies. Clause (1) of this section
is missing a clear definition of the term, “Desertion”.
A legal statute is meant to protect the people and is the guiding framework of
laws meant to serve justice. The only
takeaway from reading Section 38(1) of this bare act is the knowledge of the penalties of Desertion
rather than what the crime itself, is. Desertion is a term that also exists in the Hindu Marriage
Act. “It is the abandonment of one spouse by the other without any reasonable cause and without the consent of the
other.” This term exists in both the Acts
and it has been described only in the latter. Undoubtedly, both situations are
different, the statutes are different
as well and therefore, it is easy to decipher what the term means in its respective statute. If the term exists in the Army Act, it objectively implies desertion of military duties and not marital. However,
this being a Doctrinal research paper, a legal research paper, the letter of the law is put into question.
The purpose of a legal statute, the most tedious yet critical task of formulating laws, is to lay down
clear cut laws without any gaps, loopholes or room for assumptions.
10 Army Act, 1950, S. 38
A definition, the essentials and grounds for
penalty of Desertion are absent in Section
38(1), and hence this ambiguity perpetually extends to clauses (2) and (3) that
lay down laws for accomplices who harbour a deserter
and who fail to inform authorities when they
receive information of
desertion taking place, respectively. Without a clear understanding of what Military Desertion is and what it
constitutes, it becomes difficult to justify the death penalty the Act
prescribes to punish the accused and moreover, impossible
to punish the accomplice.
Not unlike the Army Act, 1950, separate laws exist for Desertion and
Absence without leave in the Uniform
Code of Military Justice which is the Military statute for the USA. Article 85
of the UCMJ also has three
sub clauses that are considerably different from Section
38 of the Army Act, 1950
In Article 85 of the
Uniform Code of Military Justice,
a) Any service
member who,
1. without
authorization, leaves his unit, organisation, or place of duty with the
intention of staying away from it
permanently;
2. with the
intention of avoiding dangerous duty or avoiding important service; or
3. joins or
accepts a position in the same or another one of the armed forces without fully disclosing the fact that he has been
regularly separated or enrols into any foreign Armed force without authorisation of the United States is guilty of
desertion.
b) Any
commissioned officer of the armed services who leaves his position or proper
duties without permission and with the intention
of staying away from them permanently after tendering his resignation and before receiving
notice that it has been accepted
is guilty of desertion.
c) If the
offence was committed during a time of war, the punishment for desertion or an
attempt to desert shall be death or such other punishment as a court-martial may order; however, if the
offence
occurred at any other time, the punishment shall be such other punishment,
other than death, as a court-martial may order.11
11 Uniform Code of Military
Justice, Appendix 2, 2019, art. 85
Clause a) is the main clause of Article 85 which
very clearly lays down the essentials that constitute
desertion with the first two clauses ending with the words, “….is guilty of
desertion.” There are clear cut clauses in the UCMJ that very well sum up what desertion is and its repercussions. Clause b) and c) are comprehensive extensions of
the main clause and it is evident on
comparison, which statute can facilitate uncomplicated trial proceedings and
deliver informed judgements. This
proves that the Army Act requires more specificity in Section 38 and needs to contain the definition and essentials of
Desertion.
Judicial
Decisions
The following case laws regarding desertion from the Indian Army. These
cases were decided by High Courts. The binding force of a High Court
extends to the States under its jurisdiction
including subordinate courts,
authorities and tribunals situated within its jurisdictional territory.
1) Brahm Dutt Sharma v. State of UP, 1991 Allahabad
High Court
Bench : Justice P. Gupta
The majority opinion
on this case was that a person
is guilty of being absent without leave
when he is voluntarily absent from the place his duty requires him to be. If he
did absent himself, the intention
would either be to quit the service altogether or to avoid a particular duty or task for which qualify
as desertion. The distinction between ‘desertion’ and ‘absence without leave’ was vital in this case. It was
proved from the examination of prosecution evidence
that the accused
left his camp after leaving
an application for earned
leave in the office but left without obtaining the prior permission for leave,
neither orally nor in writing.
The Appellant who was declared
guilty of desertion
in the 1981 Sessions Court judgement, appealed to the Allahabad High Court in 1983 and after careful examination of the facts and evidence
of the case, Brahm Dutt Sharma
was declared not guilty of desertion.
2)
Captain Virendra Kumar,
through his wife v. Chief of the Army Staff, New Delhi AIR 1986 SC 1060
Delhi High Court
Bench : Justice O. C. Reddy,
Justice V. Khalid
The Prosecution stated that Virendra Kumar, having been posted at Ambala
Cantonment by the Army Headquarters,
failed to report to his unit until he was apprehended by the civil police at Delhi. The appellant Smt
Raksha Virendra Kumar who, on behalf of her husband, alleged that he had been forcibly removed from his house and taken away first to the police station and then to an
unknown location and that his whereabouts were
unknown and not of his own accord. He was absent without leave and did
not desert his post. The Delhi High
Court thus decided that his services in the Army be terminated and he start
practising as an advocate under the Bar
Council post his discharge.
3) Tapan Kumar Dalai v. Union of India &
Ors, 2002 Orissa High Court
Bench : Justices R. Patra and P. Mohanty
The petitioner was sanctioned 12 days of leave which he wanted to extend
but applied for the same only after
the expiry of the period of application for extension. Assuming his leave was sanctioned, which was, in
reality, rejected, he failed to report back to service. The petitioner also chose not to go back to his battalion due to
his intention to resign, the application
for which was filed but that too, was rejected since he failed to comply with the rule of depositing three months’
salary and allowances in lieu of three months notice for its acceptance. Since he remained absent for more than sixty
days, an arrest warrant was filed
against him for crimes committed under the Central
Reserve Police Force(C.R.P.F)
Act and was hence declared a deserter. The petitioner only later agreed to pay the deposit of three months pay and
allowances and intended to follow through with
his resignation and the Court pointed out that had the deposit been paid
on time, the opposite party would not
have had the occasion to declare him a deserter. In compliance with the court orders, the opposite parties
accepted the deposit
and approved the resignation.12
Conclusion
The contention of the existing ambiguity in Section 38 of the Army Act is
justified and supported by the
research material incorporated in this research paper. The comparative study of Section 38(Army Act) and Article
85(UCMJ) shows that desertion is a grave crime
in any nation as is the necessity for clear, airtight statutes to govern the
nation. The aim of this paper was to provide a fair idea of the existing gap and unaddressed technicalities in the statute with regards to desertion in India
owing to the ignorance and normalised
indifference towards the causes of desertion and to point out the necessity for amendments to be made in this Act; furthermore, emphasise the general
principle of law-making which is efficient
regulation consequent to clear and irrefutable legal frameworks.
REFERENCES
1.
Ideas and Ethos - The Official Home Page of the Indian
Army, India, available at: https://indianarmy.nic.in
2.
Wing Commander U C Jha, “Military Justice
System In India”,
The United Service Institution of India (USI) Journal (2006)
3.
By Admin, Court Martial law - The Four types of
Military Desertion, available at: https://courtmartiallaw.com/
4. Army Act,
1950, India, available at: https://indianarmy.nic.in/writereaddata/documents/ARMYACTS190216.pdf
5.
Brigadier Sukhdev Singh,
“Reactions of Soldiers
in Battle”, Rana T. S. Chhina, Military Musings: 150 years of Indian Military
Thought from The Journal of The United Service
Institution of India, page 261 (Speaking Tiger, 2021)
6.
E. N. Woodbury,
“Causes of Military
Desertion: A Study of Criminal
Motives” , Vol. 12, Journal
of Criminal Law and Criminology,
214 (1921)
7.
Failure to report
for Duty: AWOL, Desertion and Other Charges,
available at:https://www.findlaw.com/
8. Army
Act, 1950, s. 39
9. Army Act, 1950, s. 38
10.
Uniform Code of Military Justice, Appendix 2, 2019,
art. 85
Article Information
The Technicalities Of Military Desertion In India: A Comparative Analysis Between Section 38 Of The Army Act, 1950 And Art. 85 Of The Uniform Code Of Military Justice By: Anusha Bhaskaran
Authors: Anusha Bhaskaran
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/04
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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