INTRODUCTION

In civil proceeding and criminal prosecutions under the common law a defendant may arise a
defence in an attempt to avoid criminal or civil liability. Besides contesting the accuracy of any
allegation made against them in a criminal or civil proceeding a defendant may also make allegations
against the prosecutor or plaintiff or raise a defence arguing that even if the allegations against the
prosecutor or plaintiff or raise a defence arguing that even if the allegations against the defendant
are true the defendant is nevertheless not liable.

The defence phase of trial occurs after the prosecution phase that is after the prosecution “rests”.

Others parts of the defence include the opening and closing arguments and the cross - examination
during the prosecutions phase.

Since a defence is raised by the defendant in a direct attempt to avoid what would otherwise result
in liability the defendant typically holds the burden of proof.

For example if a defendant in an assault and battery case attempts to claim provocation the victim
of said assault and battery would not have to prove that he did not provoke the defendant the
defendant would have that the plaintiff did.

In common law a defendant may arise any of the numerous defence to limit or avoid liability.

This includes :-

 Lack of personal or subject matter jurisdiction of the court such as diplomatic immunity.

 Failure to state a cause of action or other inefficiencies of pleading.

 Any of the affirmative defence.

 Defences conferred by statute - such as a statute of limitations or the statute of frauds.

 Ex turps cause non oritur actio - the action against the defendant arises from an illegality.

 Volenti non fit injuria - consent by the victim or plaintiff.

 In pair derelict - both sides equally at fault.

 Unclean hands.

In addition to defence against prosecution and liability a defendant may also raise a defence of
justification - such as self - defence and defence of others or defence of property.

The defence in a homicide case may attempt to present evidence of the victims character to try
to prove that the victim had a history of violence that suggest a violent character. The goal of
presenting character evidence about the victim may be to make more plausible a claim of self -
defence1 or in the hope of accomplishing jury nullification in which a jury acquits a guilty
defendant despite its belief that the defendant committed a criminal act.

1The defence of one’s person or interest especially through the use of physical force which is permitted in certain cases as
an answer to a charge of violent crime.
 Litigation is expensive and often may last for months or years. Parties can finance their litigation
and pay for their attorneys fees or other legal costs in a number of ways. Defendants can pay
with their own money through legal defence funds or legal financing companies .

MILITARY LAW

INDIAN MILITARY LAW :-

Military law provisions govern the role of Indian Army during peace and war formulated in the form
of Statutes, Rules and Regulations. It is a written code2 which has seen periodic changes and review
apart from convections of service.

Official publication mainly take the form of the Army Act 1950, Army Rules 1954 and Regulations for
the Army 1987. Armed Forces Act are also relevant legislation. Another significant but obscure
provision is Notes to Indian Military and Indian Air Forces. Strangely for reasons not known, RA and
NMALF continue to be accessible to the scholars and public at large.

There are two aspects significant for the purpose of this discussion. Firstly military law publication
were different names in the earlier years.

However these were all official publications. Law being complex and technical in nature these text
were not easy to comprehend and apply. The same called for a need to draft ‘note’ or ‘comments’

Thereto. These were prepared and duly inserted by the authorities whose identify was not
dedicated.

Secondly military law was included in the syllabus for retention and promotion examinations for
military officers. This was done with a view to make the officers study and assimilate relevant legal
provisions necessary for enforcement of a disciplinary code amongst the men under the command.
A need therefore existed for publication of books that could explain guide and amplify the rules.
Thus such handbooks were required not only for applications of law by the officers for unit routine
but also for their understanding while preparing for obligatory examinations.

Infrequent actions were also taken to bring out peace and others publication as command and crops
level for dissemination of military law. These too were all in house publication.

THEN, NOW & BEYOND :-

Military Law then now and beyond was brought out by the Judge Advocate General’s Department at
that time of their second Re-union in 2005. This was a unique publication in the form of interviews,
articles, poems and picture. The work was conceived designed and produced by Maj. Gen. Nilendra
Kumar.

2It is the type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it
existed at that time the code was enacted by a process a codification.
The book was suitably divided into portions dealing with reminiscences like honour & ethics courts,
martial, litigation, law of war, gender justice and human rights, legal training, media issues and other
issues. And armed forces tribunal, reforms in Military law, empowerment and way ahead. Elegant
layout and superbly printed the book carried interviews with General JJ Singh, Chief of the Army
staff and with Justice Brigadier D M Sen the first Judge Advocate General of free India.

LEGAL ASSPECTS :-

In civil proceeding and criminal prosecutions under the common law a defendant may raise a
defence in an attempt to avoid criminal or civil liability. Besides contesting the accuracy of any
allegation made against them in a criminal or civil proceeding a defendant may also make allegation
against the prosecutor or plaintiff or raise a defendant may also make allegations against the
prosecutor or plaintiff or raise as defence arguing that even if the allegations against the defendant
are true the defendant is nevertheless not liable.

The defence phase of a trial occurs after the prosecution phase that is after the prosecution “rest”.
Others parts of the defence include the opening and closing arguments and the cross - examinations
during the prosecution phase.

Since a defence is raised by the defendant in a direct attempt to avoid what would otherwise result
in liability the defendant typically holds the burden of proof. For example if a defendant in an assault
and battery case attempts to claim provocation the victim of said assault and battery would not have
to prove that did not provoke the defendant would have to prove that the plaintiff did.

Military justice or military law is the body and procedures governing members of the armed forces.
Many nation states have separate and distinct of law that govern the conduct of members of their
armed forces.

It enumerated the deficiencies in the Indian military justice system. He was in favour of the judicial
branch of the armed forces to be headed by a Chief Justice Advocate General of the rank of
Lieutenant General under the Ministry of Defence.

Courts martial in India was authored by Major LM Peet officiating Assistant Judge Advocate General
Eastern Command. This publication was a pocket edition of about 4” or 5” in size3. The publication
carries valuable inputs for the conduct of courts martial. It would amaze one to find that common
mistakes listed in the book are still often repeated today.

Indian Military Law by Lt. Col. ST Banning CBE was printed in Great Britain. It was published on the
urgent request of several officer of the Indian Army who had studied the subject with while
preparing for their examination. Author’s other book Military Law had by then already run into 18th
edition. Yet another notable work by the author was titled Military Law Made Easy.

Notes on Military Law 1935 was issued by General Headquarters, India. It carried a preface by
General AB Haig Adjutant General in India.

3 Indian Military ACT 1850

The growth of Military Law Literature emerged from sheer necessity. It was acknowledge by General
C.H Harrington GBE, DSO, DCL then the general Officer Commanding in Chief of Quetta - based

Western Command on 28 October 23, 1930 in a foreword to the book titled Handbook of Military
Law by Capt. R.J.Wilkins and W.S.Chaney.

He wrote :-

There are two main reasons why an Officer should be at home in his Military Law.

One of them the less important is that he or she may pass the promotion examination.

The other by far the more important is that he or she may pass the promotion examination.

The other by far the more important is that he or she avoid injustice towards the countrymen whom
it was his privilege to command.

Military and Cantonment Law in India is perhaps the oldest publication still available on military law.

The author in his preface clarified the objects of his work was to supply what is believed to be want
by supplementing for India the Manual of Military published by the war office in England.

Handbook of Military Law by C. Sanjeevarow Nayudu was perhaps the first book post independence
on military law. The author had declared in the preface that he was induced to write the book driven
by the extreme need and usefulness of a military handbook. The foreword was written by Mr. B.R.
Ambedkar, the then Minister for Law, Government of India. Ambedkar admitted that “for some
reason Military Law has not attracted the attention of students of India Law and there are very few
books on the subject”

Capt. K.K. Pradhan came up with Text Book of Military Law in 1956. The book running in nine
chapters dealt with military law enforcement provisions, evidence, duties in aid of the civil power
and lastly National Cadet Corps Act and Rules.

Privileges of the Military Personnel4 in Courts of Law6 was written with a very concise aim. Its main
feature was a very detailed and exhaustive treatment of the topic. A notable feature of the book was
its coverage of the provisions concerning defence of mechanical transport drivers in claims for
damages arising out of accidents. Perhaps a book of this nature duly updated is needed even now.

‘Guide to Courts Martial’ by B.L. Goswami was a concise work directed solely at the procedures to
applicable at the trial stage. Another book by the same author dealt with the topic of courts of
inquiry.

4 Are members of the state’s armed forces.

SC Consul, Advocate came up with his book Law Relating to Military Service, Conditions, Privileges
and Restrictions7 in 1965. A number of its chapters related to matters like conditions of service,

penal deductions, service privileges, The Indian Soldiers (Litigation) Act, 1925; choice between
criminal court and court martial and restrictions on fundamental rights.

The next book worthy of note and written by a military lawyer was Military Law in India8 Rear
Admiral OP Sharma, the author, in his book first published in 1973 had disclosed that text was the
doctoral dissertation for the degree of Doctor of Philosophy in Law to the Bombay University. It was
an exposition of the principles and procedures of military law as they had developed over the last
few centuries. The foreword to the book was written by Justice PB Gajenderagadkar, a former Vice
Chancellor of the Bombay University and formerly the Chief Justice of India.

O. P. Sharma’s effort is to be specially commended because it pointed out the shortcomings and the
gaps in the Indian Military Law. It indicated the ways in which it could be reformed so as to be in line

with the role of a soldier in a democratic socialist set up. The work had taken into account more than
200 judgments of Indian High Courts and the Supreme Court. The publication was a scholarly work of
merit and made a definite contribution to the knowledge of the law relating to the armed forces.

Military Law at a Glance9 was a concise book which came in the form of a handbook for army
promotion examinations. The author claimed that the publication should serve as a help book to find
the solution of confronting problems without going into the voluminous material from which it may
have to be dug out.

Regimental Officer’s Handbook on Military Law (Questions & Answers) was an invaluable book
authored by Brig. AC Mangala. The book running into 160 pages was printed by Army Printing Press,
Lucknow in November, 1984. This was a revised edition of the same title first brought out in January
1976. The author in his preface had pointed out that the object of the book was to make readily
available to regimental officer’s answers to such practical problems which they have to tackle during
the course of their duties in the units and on the staff. Lt. Gen. R.D. Hira, Adjutant General in his
foreword to the first edition had hoped that the publication would be useful to officers preparing for
promotion and DSSC entrance examination.

Military Law in India was a joint effort 5 by Dr. D.C. Jain, Dr. N.K. Indrayan and Maj. C.G. Goel. The
work was in the form of a section wise narration of the Army Act provisions with a commentary for
each clause. A significant feature of the book was incorporation of relevant case law.

The main utility of Study and Practice of Military Law11 by Col. G.K. Sharma, first published in 1988,
was for assisting regimental officers in dealing with disciplinary cases. The author claimed that his
work was a means to find ready answers to the day to day legal problems, faced by commanders,
staff officers and persons interested in the study and practice of military law.

Beyond Exams Study Material[edit]

5It is a general partnership typically formed to undertake a particular business transaction or project and is intended to
exists for a limited time period.
The higher judiciary of law need to consult compilation of case laws on some or similar legal issues.
Need for such a compilation was long felt by the judges, lawyers and military authorities. Relating to
the Armed Forces in India12 was the first and only book covering rulings given by Supreme Court
and various High Courts on military law and service conditions of the armed forces as well as civilians

paid from the defence estimates and ex servicemen. All the important judgments, reported or
unreported were classified under main headings and sub headings and were listed subject wise in a
chronological order.

Field Marshal SHFJ Manekshaw in his foreword to the book wrote, “I am sure that their (authors)
efforts would be of immense use not only to those in the legal profession but to the staff officers in
the Army units and formations as well.” The book has since come out in five editions with substantial
increase in its contents.

A publication titled Compendium of Law for Defence Services13 came up in 1991. It was essentially a
reproduction of Manual of Military Law. Merit of special note were however to portions running into
four pages that covered a brief appraisal of trial by courts martial and drawbacks in system of trials
by courts martial.

Major L.J. Obheroi’s his book Questions Answered on Military Law14 was released in May 1994. The
author in the preface declared the main objective to present a useful and accurate guide to
commanding officers, formation commanders and staff and regimental officers in regard to their

powers and functions under the Army Act. This book was claimed by him to be, the only book which
explains how to be refer to MML and RA, with practical examples to get, at the right answers. The
book was divided in 20 chapters including specimen charges.

A significant step with regard to military law publications is the Military Law Journal6 . First started in
1996 as a news letter of the Judge Advocate General’s Department, it later took the shape of a
reproduction of case law concerning military law. It is now a bi-annual journal brought out by the
Institute of Military Law, Kamptee. It is a priced publication bearing an ISIN No. It is divided in two
parts. While the first contains articles and book reviews, the second one carries decisions of the high
Courts, Supreme Court, High Courts in India and different benches of the Armed Forces Tribunal on
different aspects concerning the Army. Yet another notable feature is its historical section in which
earlier cases of relevance are also reproduced. With its maiden appearance in 1996, the annual law
journal carries complete text of relevant judgments of the Supreme Court. It also carries review of
new books.

Court Martial and Military Matters by Brig. (now Maj. Gen.) Nilendra Kumar as an attempt to discuss
the complexities of modern legal thought as pertaining to military canvas. It took into account a
thorough overview of military law. It did not merely described the law but pointed the way ahead.

6 The body of laws rules and regulations that have been developed to meet the needs of the military.
The book in its 15 articles did not present merely abstract legal theory but a discussion of legal
principles as well as ground realities. It took stock of practical infirmities in the law.

The History of the Department of Judge Advocate General17 was an attempt at the official narration
of JAG’s Department history. The text traced the origin of the department and system of courts
martial in India. Suitably divided in 10 chapters, the text dealt with pre and post independent eras,
revision of publications, legal cells, origin of Corps Day and Institute of Military Law. It also carried a
list of the officers serving in the department at the time of publication. The book came in time with
the first reunion of the JAG Department.

Military Law Handbook for Commanders18 was published with a firm belief of the author that sound
administration and personnel management calls for due emphasis on fair play, adherence to laid
down norms and humane treatment of the subordinates. The work was indeed of practical help to
commanders at various levels. The second edition of the book in 2011 took into account new
changes like setting up of the Armed Forces Tribunal, The Right to Information Act and adoption of
information technology by the armed forces.

Pension Regulations7 for the Army 1961 (including 1940) was the title chosen by Captain R.S. Dhull
for his first book. The effort was indeed praiseworthy for it made available Pension Regulations to
the courts, lawyers and litigants that were otherwise almost never to be found.

2007-2008 Armed Forces20 by Captain R.S. Dhull was a compilation of decisions of higher judiciary in
India. It also carried up-to-date orders and information relating to pension. It took into
account 20 judgments of the Supreme Court and 47 of various High Courts.

Soldiers invalided out from service on medical grounds are entitled to the award of disability pension
when the disability recorded is found to be attributable to or aggravated by the service conditions.

Law Relating to the Disability Benefit21 in the Armed Forces was a compilation of case law where
the higher judiciary had examined the legality of executive decisions taken in the matter of award of

disability pensions. It also discussed various dimensions of the provisions relating to award of
disability benefits to the men in uniform.

Case Studies on Military Law by Maj. Gen. Nilendra Kumar was first published in 2003. It presented
live cases relating to investigations and enquiries, disciplinary and administrative action decisions
starting with hearing of charge and leading on to disposal of cases. The identity of the offenders,
witnesses and those who dealt with the matter as well as units and formations had been concealed.
The case studies compiled in the book were intender to help the commanders by drawing suitable
lessons by way of an opportunity to carry out a critical analysis of actual and him situations. A review
of the book in USI Journal hailed it as a “valuable contribution for proper understanding of the
subject through live case studies.”

7 Indian Military Act 1850

Courts Martial Under Scrutiny8 by Maj. Gen Nilendra Kumar appeared as a discourse on divergent
issues concerning operations, procurements litigation, human resource management, low intensity
conflicts, international terrorism and peace enforcement operations. It was an exercise to analyse

critical areas showing crucial deficiencies in the existing legal procedures as noted from academic
scrutiny and actual application.

Military Law and Writs24 was brought out by Major J.L. Obheroi in 2003 as an author and publisher.
The voluminous work spread over 30 chapters was meant to assist the practitioners of military law
by providing them with a ready reckoner to deal with writ petitions. It also contained relevant case
law. It covered the whole spectrum of one’s service conditions, rights, duties and obligations.

The Military Justice System in India by Wg. Cdr. U.C. Jha was a critical study of existing military
justice system in India and its comparison with that of the UK and the USA. It enumerated the
deficiencies in the Indian military justice system. It articulated that limitations on human rights must
be provided for by law and should be consistent with international treaty obligations. The author
strongly called for drafting a common code for the three services. He was in favour of the judicial

branch of the armed forces to be headed by a Chief Judge Advocate General, of the rank of
Lieutenant General, under the Ministry of Defence.

Courts on Military Law by Col. G.K. Sharma and Col. M.S. Jaswal came in the form of voluminous
work. It is a narration of the Army Act and Army Rule provisions. Each section or rule was followed
by a commentary9 which was essentially a case law relevant to the text thereof. The book had drawn
upon 954 decided cases to build up its text. This number included the rulings on pension matters.

Wg. Cdr. U.C. Jha came up with a work titled Armed Forces Tribunal29 in 2010. The book critically
examined the jurisdiction and powers of the Armed Forces Tribunal. It gave an insight into the
problems that were likely to be encountered by the tribunal when it started functioning. It also
carried a resume of the existing system of grievances redressal.

The other book by Wg. Cdr. U.C. Jha in 2010 was titled The South Asian Military Law Systems30. It
was a comparative study of the military law systems of the five South Asian countries viz.

Bangladesh, India, Nepal, Pakistan and Sri Lanka. It also included certain portions on law of Armed
Conflict and International Human Rights Law, relevant to the activities of the Armed Forces. The
author devoted a separate chapter to conclusions and recommendations. He advocated separation
of the Judge Advocate branch of the respective services and its placement under the Ministry of
either law or justice.

A Handbook of Military Law by Wg. Cdr. Dr. U.C. Jha was claimed by the author to have been
written with an aim to serve as a ready reference for the officers of the Indian Army who would like
to know something about their legal rights and responsibilities. The handbook also covered the

8 Means critical observation or examination.

9It is aslo known as a legal treatise is an unofficial text, intended to complement a particular sources of law often
consisting of one or more statutes.
syllabus of Part B and D promotion examinations and DSSC entrance examination. The portion on
Right to Information had information on a matter otherwise little known to the military. The last
chapter dealt with military contingents in peacekeeping.

Court Martial Process : Empirically studied was the work of Brigadier Rama Gopal Vidhu. It was
based on the award of Ph.D by the University of Delhi. The text had drawn heavily on the responses
of 200 military and civilian personnel to undertake a comprehensive analysis of the court martial
process. The book carried a number of useful suggestions to streamline the procedures at different
stages of courts martial.

The contributors to the book were some of the well known experts on military and legal issues e.g.
Lt. Gen. V.R. Raghavan, Justice DP Wadhwa formerly of the Supreme Court, Dr. Manoj Kumar Sinha,
Dr. Manish Arora, Dr. Shyamlha Pappu, Maj. Gen. V.K. Singh, SV Thapliyal and AB Gorthi; Maria
Teresa Dutli, Krister Thelin, KPD Samanta, Diane Guillemette, Dr. N.M. Ghatate, PH Parekh etc.

Military Law Lexicon was a joint effort by Maj. Gen. Nilendra Kumar and Kush Chaturvedi. It was a
lexicon of military legal terms a necessary step for understanding military terms. Various terms were
explained by a combination of means i.e. some times by their dictionary meaning or by statutory
definition, and at places by a combination of both. Terms of foreign usage were also included.

The Military Justice System in India by Wg. Cdr. U.C. Jha was a critical study of existing military
justice system in India and its comparison with that of the UK and the USA. It enumerated the
deficiencies in the Indian military justice system. It articulated that limitations on human rights must
be provided for by law and should be consistent with international treaty obligations. The author

strongly called for drafting a common code10 for the three services. He was in favour of the judicial
branch of the armed forces to be headed by a Chief Judge Advocate General, of the rank of
Lieutenant General, under the Ministry of Defence.

Courts on Military Law by Col. G.K. Sharma and Col. M.S. Jaswal came in the form of voluminous
work. It is a narration of the Army Act and Army Rule provisions. Each section or rule was followed
by a commentary which was essentially a case law relevant to the text thereof. The book had drawn
upon 954 decided cases to build up its text. This number included the rulings on pension matters.

Wg. Cdr. U.C. Jha came up with a work titled Armed Forces Tribunal29 in 2010. The book critically
examined the jurisdiction and powers of the Armed Forces Tribunal. It gave an insight into the
problems that were likely to be encountered by the tribunal when it started functioning. It also
carried a resume of the existing system of grievances redressal.

The other book by Wg. Cdr. U.C. Jha in 2010 was titled The South Asian Military Law Systems30. It
was a comparative study of the military law systems of the five South Asian countries viz.
Bangladesh, India, Nepal, Pakistan and Sri Lanka. It also included certain portions on law of Armed

10The body of law derived from judicial decisions rather than from statutes or constitutions ;[ synonym] CASELAW, [
contrast ] STATUTORY LAW.
Conflict and International Human Rights Law, relevant to the activities of the Armed Forces. The
author devoted a separate chapter to conclusions and recommendations. He advocated separation
of the Judge Advocate branch of the respective services and its placement under the Ministry of
either law or justice.

A Handbook of Military Law by Wg. Cdr. Dr. U.C. Jha was claimed by the author to have been written
with an aim to serve as a ready reference for the officers of the Indian Army who would like to know
something about their legal rights and responsibilities. The handbook also covered the syllabus of
Part B and D promotion examinations and DSSC entrance examination. The portion on Right to
Information had information on a matter otherwise little known to the military. The last chapter
dealt with military contingents in peacekeeping.

Court Martial Process : Empirically studied was the work of Brigadier Rama Gopal Vidhu. It was
based on the award of Ph.D by the University of Delhi. The text had drawn heavily on the responses
of 200 military and civilian personnel to undertake a comprehensive analysis of the court martial
process. The book carried a number of useful suggestions to streamline the procedures at different
stages of courts martial.

REFERENCES :-

It is based on books written by the Indian Army Officers and ACT 11is also based on that book.

The above text is based chiefly on an article by Major General Nilendra Kumar, former Judge
Advocate General, Indian Army

1. Military and Cantonment Law in India by HWC Carnduff; CIE. S.K. Lahiri & Co., 54, College Street,
Calcutta, 1904 edition Hardbound, 672 page. Particular mention may be made of Chapter VI that
related to the interpretation and construction of legislative enactments. The author acknowledged
the willing assistance and valuable advice he had received from time to time from several friends in
the Army, especially at Simla, where during the last five years most of the work had been compiled.

2. Courts Martial in India by Major LM Peet.

3. Indian Military Law by Lt. Col. ST Banning.

4. Handbook of Military Law by Col. C.S. Nayudu.

5. Text book of Military Law by Capt. K.K. Pradhan.

6. Privileges of the Military Personnel Act.

7. Law Relating to Military Service Act.

11 Indian Military Act 1850

8. Military Law in India Act.

9. Military Law at a Glance Act.

10. Military Law in India Act.

11. Study and Practice of Military Law Act.

12. Law Relating to the Armed Forces in India Act.

13. Compendium of Law for Defence Services Act.

15. Military Law Journal Act.

16. Court Martial and Military Matters Act.

17. The History of the Department of Judge Advocate General Act.

18. Military Law Handbook Act.

19. Pension Regulations for the Army 1961 Act.

20. Brought out by the author himself.

21. Law Relating to the Disability Benefits in the Armed Forces Act.

22. Case Studies on Military Law by Maj. Gen. Nilendra Kumar.

23. Courts Martial Under Scrutiny’ by Maj. Gen. Nilendra Kumar.

24. Military Law & Writs by Major J.L. Obheroi.

25. Military Law Lexicon by Maj. Gen. Nilendra Kumar.

26. The Military Justice System in India Act.

27. Courts on Military Law by Colonels G.K. Sharma.

28. Armed Forces Tribunal, Wg. Cdr.(Dr.) U.C. Jha.

29. The South Asian Military Law Systems by Wg. Cdr.

30. A Handbook of Military Law – Reference Manual – by Wg. Cdr. (Regd.) Dr. U.C. Jha(Retd), Vij
Books India Pvt. Ltd., Ansari Road, Darya Ganj, New Delhi.

31. Court Martial Process : Empirically studied by Brigadier Rama Gopal Vidhu; Vij Books India, New
Delhi.