Overview Of The Air Force Act, 1950
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This Blog is written by Tanvi Sanjay Rane from Dr. D.Y. Patil College of Law, Maharashtra. Edited by Ujjawal Vaibhav Agrahari.
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INTRODUCTION
Since time immemorial, the military has played a vital role in shaping history and securing the future of the world. Early men lived in tribes that consisted of gatherers, hunters, and protectors. According to the Upanishadic interpretation of the law, the function of law is to ensure the social security of men and the existing social institutions. Ancient India has accounts of several dynasties who maintained huge armies; and since rules and laws have been made and followed for their maintenance and discipline. The laws that existed then were based on the dictums mentioned in the sacred texts.
Today in modern times we live in a world with nations, where envisioning a world without boundaries is elusive. Hence, it becomes an important function of every country to not only protect those borders but also to stop the country from falling into anarchy. Thus, the military becomes an integral part of every country’s security and peacekeeping force. While some countries have compulsory and mandatory military conscript service for their citizens; some countries have a challenging procedure for getting into the armed forces. And so, Military Law assumes great significance in all countries.
Military law is a code of rules and procedures that govern the members of the armed forces. It is predominantly concerned with the maintenance of discipline in the armed forces and governs the conduct and behaviour of armed personnel. Its object is to provide for the maintenance of good order among members of the armed forces and in certain circumstances among others who live or work in a military environment. It is pertinent to mention that Military law is something quite different from Martial law as often they are confused to be synonymous. Military law may be enforced both at times of peace and war whereas martial law is enforced only at the time of war. Moreover, military law applies only to the army or military personnel, but martial law applies to soldiers as well as the civil population.
In India, official publications pertaining to military law are predominantly divided into three statutory acts, viz. the Army Act,1950, the Navy Act of,1957 and the Air Force Act, 1950. This article is an attempt to understand the overview of one of these military laws – The Air Force Act, 1950.
SIGNIFICANCE OF THIS DEVELOPMENT
The Air Force Act, 1950 was enacted on 18th May 1950 and came into force on 22nd July 1950. It is an act to consolidate and amend the law relating to the governance of the Air Force.
Special Law
The pivotal significance of the act lies in the application of the act to its particular subjects. Section 2 of the Act states that the following persons shall be subject to this Act, wherever they may be, namely:
(a) officers and warrant officers of the Air Force;
(b) persons enrolled under this Act;
(c) persons belonging to the Regular Air Force Reserve or the Air Defence Reserve or the Auxiliary Air Force, in the circumstances specified in section 26 of the Reserve and Auxiliary Air Forces Act, 1952;
(d) persons not otherwise subject to air force law, who, on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompanying any portion of the Air Force.
The act is insofar as its application is concerned, a Special Law. Besides the general law, there are certain kinds of the special law which operate upon and affect only a fraction of people. They are assigned for a particular purpose and are restricted to a particular field. They are called jus special. The Air Force Act is thus, a special law, as it does not apply to the general public. Section 2 of the act restricts its application to a certain class of people, i.e., those who are specifically mentioned as the subjects under the said section.
The rationale behind its special status is also contained in Section 139 of The Indian Penal Code; which clarifies that the defence personnel who are subject to the Army Act, the Navy Act, and the Air Force Act shall not be subject to punishment under that chapter. Such persons would be governed by the Act to which they are subjected to and punished more severely than the civilians for the same offence.
Furthermore, the Air Force Act, being a special law has extra-territorial application as a person subject to it continues to be so subject at all times irrespective of the place where he is serving, whether he is in India or elsewhere. The subjection to the act and hence the liability to punishment under the act is unaffected by the place where he is stationed or the place where the offence is committed.
Fundamental Rights
Another significance of this act lies in the application of Article 33 of the Constitution of India to this Act. Article 33 empowers the Parliament to restrict or abrogate by law fundamental rights in the application to the members of the armed forces or the forces charged with the maintenance of public order. The object of this restriction under this article is to ensure the proper discharge of their duties and maintenance of discipline amongst them.
The applicability of Article 33 is found in Section 21 of the Air Force Act which empowers the Central Government to make rules restricting certain fundamental rights conferred by Article 19 of the Constitution. Thus, the fundamental rights which are eminent for the general public and are protected by the Constitution for them; may at times be curtailed for the members subject to this act. Section 21 is not ultra vires the Constitution, since it is saved by article 33. Case law relating to this section will be further discussed in the article.
IMPACT
The Air Force Act is mostly a disciplinary code and ensures that the will of the commander is put into effect. It is important that the persons subject to this act follow high standards of discipline and order at all times. The act does the job of creating that compulsion for them, in the absence of which grave consequences can be faced by them. This has an impact on their subsequent behaviour, fulfilling the purpose for which the act was enacted.
PROVISIONS IN THE LEGISLATURE
The Air Force Act, 1950 is mainly dichotomous legislation as it broadly deals with two aspects. Firstly, it is punitive legislation as it recognizes certain offences committed by the persons subject to this act and further deals with inflicting severe punishment upon them. Secondly, it lays down procedures regarding their enrolment into the force as well as the procedure upon their arrest on commission of an offence and the procedures to be followed during the court-martial.
Act at a glance
The Air Force Act,1950 consists of 194 sections and is divided into 16 chapters.
• Chapter I (Sections 1-4) deals with Preliminary Matters.
• Chapter II (Sections 5-9) lays down Special Provisions for The Application of Act in Certain Cases.
• Chapter III (Sections 10-17) deals with Commission, Appointment, and Enrolment.
• Chapter IV (Sections 18-24) lays down Conditions of Service.
• Chapter V (Sections 25-33) embodies Service Privileges.
• Chapter VI (Sections 34-72) recognizes Offences.
• Chapter VII (Sections 73-90) lays down Punishments.
• Chapter VIII (Sections 91-101) relates to Penal Deductions.
• Chapter IX (Sections 102-108) is concerned with Arrest and Proceedings Before Trial.
• Chapter X (Sections 109-126) deals with Court Martial.
• Chapter XI (Section 127-151) lays down the Procedure of Court Martial.
• Chapter XII (Section 152-162) relates to Confirmation and Revision.
• Chapter XIII (Section 163-176) deals with the Execution of Sentences.
• Chapter XIV (Section 177-188) recognise Pardons Remissions and Suspensions.
• Chapter XV (Section 189-192) lay down Rules.
• Chapter XVI (Section 193-194) provide Transitory Provisions.
Offences under the Act vis-à-vis their Punishments
A wide range of offences is made punishable under the act, inflicting the most severe punishments for them. Some of the grave offences mentioned under the act can be understood easily with the help of the table given below.
| Section | Offences | Punishment |
| 34 | Offences in relation to the enemy, committed treacherously, intentionally, or with knowledge. | Punishable with death or such less punishment as is in this Act mentioned. |
| 35 | Offences in relation to the enemy committed negligently or without due authority. | Punishable with imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned. |
| 36 | Offences like using criminal force to a sentry, breaking into any house, sleeping upon post intoxicated, altering with the signal, etc. | If committed by a person on active service, punishable with imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; if committed by a person when not on active service, punishable with imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned. |
| 37 | Mutiny | Punishable with death or such less punishment as is in this Act mentioned. |
| 38 | Desertion and aiding desertion | If committed by a person on active service, punishable with death or such less punishment as is in this Act mentioned; if committed by a person under any other circumstance, punishable with imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned. |
| 40 | Striking or threatening a superior officer | If committed by a person on active service, punishable with imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; if committed by a person under any other circumstance, punishable with imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned. |
| 49 | Permitting escape of a person in custody | If he has acted wilfully, punishable with imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned. |
| 57 | Falsifying official documents and false declaration | Punishable with imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned. |
| 64 | Disobedience of lawful command of the captain of the aircraft | Punishable with imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned. |
The punishment clause of each offence has the words “such less punishment” to it. For the purpose of this one should refer to Section 73 of the Act which lays down the scale of punishments, regard being had to the nature and degree of the offence.
The act also mentions various other forms of punishments apart from capital punishment and imprisonment, viz. cashiering, field punishment, retention in the rank, detention, confinement to the camp, deprivation of acting rank, forfeiture of badge pays, fine, penal deductions, reprimand, etc.
Courts-Martial
A Courts-martial is a legal proceeding or a trial conducted for the members of the armed forces. It determines the guilt of the members subject to military law, and upon conviction to determines the punishment to be inflicted upon them. Court-martial is a tribunal. It has most features, of a court but is nevertheless not a court of law in the strict sense of the term. Section 4 of the Act states that “court-martial” means a court-martial held under this act. Section 109 of the Air Force Act determines three different kinds of courts-martial.
1. General courts-martial: A general court-martial is convened by the Central Government or the Chief of the Air Staff or by any officer empowered on this behalf by warrant of the Chief of the Air Staff.
2. District courts-martial: A district court-martial is convened by an officer having the power to convene a general court-martial, or by any officer empowered on this behalf by warrant of any such officer.
3. Summary general courts-martial: A summary general courts-martial are convened by (a) an officer empowered on this behalf by the Central Government or of the Chief of the Air Staff; (b) on active service, the officer commanding the forces in the field, or any officer empowered by him in this behalf; (c) an officer commanding any detached portion of the Air Force on active service when, in his opinion, it is not practicable with due regard to discipline and the exigencies of the service, that an offence should be tried by a general court-martial.
The Act further lays down rules regarding the composition, dissolution, powers, period of limitation, and place of trial of courts-martial. The act also constitutes procedure of courts-martial, which require every court-martial to be presided by a Presiding Officer who shall be a senior member and a Judge Advocate who shall be either an officer belonging to the department of the Chief Legal Adviser or if no such officer is available, an officer approved by the Chief Legal Adviser or any of his deputies. Other procedures of the courts-martial include that of challenges made for the appointment of the presiding officer, oaths of member – Judge advocate and witness, voting by members, the general rule as to the evidence, judicial notice, summoning witnesses, examination of witnesses, the presumption as to certain documents, procedures regarding lunacy of accused, etc.
CASE LAW
Union of India and Others v. Ex. Flt. Lt. G.S. Bajwa[1]
The Supreme Court has held that the provisions of the Act cannot be challenged on the ground that they infringe the fundamental rights guaranteed under Article 21 of the Constitution of India. Since the Air Force Act is a law duly enacted by Parliament in the exercise of its plenary legislative jurisdiction read with Article 33 of the Constitution of India, the same cannot be held to be invalid merely because it has the effect of restricting or abrogating the right guaranteed under Article 21 of the Constitution of India or for that reason under any of the provisions of Chapter III of the Constitution.
Ajmer Singh v. Union of India 1987[2]
A sentence of imprisonment, whether revised or not, and whether the accused is already undergoing sentence or not, commences on the day on which the original proceedings were signed by the presiding officer. Section 428 of CrPC allows the period of detention/custody undergone by the convicted person during the investigation, inquiry, or trial of the same case and before the date of conviction, to be set off against the term of imprisonment. The provisions for set off contained in section 428 of CrPC do not have any applicability in respect of persons convicted and sentenced by a court-martial.
Ex. Naik Sardar Singh v. Union of India and Others[3]
The Supreme Court in this case has held that “The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.”
ANALYSIS
The Air Force Act came into force on 22nd July 1950 and there haven’t been any recent amendments to the act. The act has been amended by The Reserve and Auxiliary Air Force Act,1952 (Act 62 of 1952); The Commanders-in-Chief (Change in Designation) Act 1955 (Act 19 of 1955); The Repealing and Amendment Act, 1957 (Act 36 of 1957); The Air Force and Army Laws (Amendment) Act, 1975 (Act 13 of 1975); The Delegated Legislation Provisions (Amendment) Act, 1985 (Act 4 of 1986). The last amendment made to the act was in 1986 and no subsequent amendments have been made since. This creates a lacuna in the act, in the areas in which the act has failed to make provisions. For instance, the act does not have any provisions regarding bail for a person arrested under the act. Supreme Court has laid out the basis on which bail should be granted, these rules and principles have however yet to be made applicable with regard to that military personnel that is being held in custody.
Further, a person subject to the Air Force Act cannot terminate his subjection unilaterally, cessation of subjection must take place in one of the ways mentioned in Section 3 of the act. There is no provision in Air Force Act under which a person can resign.
Other frailties in the act include that of the absence of legal aid provided to the accused; double jeopardy, a person who is subject to the provisions of the Air Force Act, who has once been tried and convicted or acquitted before a court-martial can be tried a second time on the same charges by a court of civil jurisdiction and denial of the right to appeal.
The provisions mentioned above, which do not form a part of the Air Force Act, possess great importance in today’s world. Hence, considering the recent times, an attempt should be made to make the legislation all-encompassing and abreast with modern times.
CONCLUSION
Military personnel subject to this act are a supremely important national asset and the future well-being of the nation depends upon them. The Air Force Act is enacted with lofty ideals in view and has succeeded in maintaining order in the force and upholding its mandate over the years. Although one cannot deny a need for reform, the act hasn’t failed to satisfy the object for which it was enacted.
REFERENCES
[1] Union of India and Others v. Ex. Flt. Lt. G.S. Bajwa on 2 May, 2003.
[2] Ajmer Singh v. Union of India 1987 AIR 1646, 1987 SCR (3) 84.
[3] Naik Sardar Singh v. Union of India and Others on 3 May 1991, 1992, AIR 417, 1991 SCR (2) 676.
(1) The Air Force Act, 1950.
(2) Manual of Air Force Law Volume-I: Developed by AOA Computer Centre and Department of JAG (Air).
(3) Unification of the Army, the Navy and the Air Force Act: Wing Commander UC Jha.
(4) Constitutional Law of India: Dr. J N Pandey.
(5) Studies in Jurisprudence and Legal Theory: Dr N V Paranjape.
(6) Textbook on Indian Penal Code: K D Gaur.