The Royal Indian Air Force was established on 08 Oct 1932 as an auxiliary of the Royal Air Force. To commemorate the formation day of the Royal Indian Air Force, 8th October is declared as Air Force Day. After India became a Republic on 26th January 1950, the Indian Air Force dropped its prefix ‘Royal’. Subsequently, an act to consolidate and amend the law relating to the Air Force was enacted by the Parliament of India on 22 Jul 1950 shortly called as Air Force Act 1950.
Accordingly in the exercise of the powers conferred by Section 189 of the Air Force Act 1950, the Central Government has made rules called ‘The Air Force Rules 1969’. Thereafter to meet the requirement of authoritative commentary on the provisions of the Air Force Act, 1950 and the Air Force Rules 1969, a Manual of Air Force Law was brought out in 1988 which primarily constitutes the Air Force Law. The Manual of Air Force Law is prepared considering various amendments to the Air Force Rules 1969 and also various landmark judgments of the Hon’ble Supreme Court on the Air Force Act 1950.
The Air Force being a special law has extraterritorial application in as much 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.
PERSONS SUBJECT TO THE AIR FORCE ACT
The persons who are subject to Air Force Act 1950 are as follows:
Officers and Warrant Officers of the Air Force.
Persons enrolled under this Act Airmen and Non-Combatants
Persons not otherwise subject to Air Force Law and who are on active service as specified by the Central Government.
Laws pertaining to Air Force personnel hold a unique position as they can supersede the Fundamental Rights guaranteed by the Indian Constitution. While Fundamental Rights are available to all citizens of India, there are certain reasonable classifications where restrictions on these rights may be imposed on specific individuals. Under Article 33 of the Indian Constitution, the Parliament has the authority to modify the application of Fundamental Rights to members of the Armed Forces. This empowers the Parliament to determine the extent to which these rights are applicable to Armed Forces personnel. Additionally, Article 34 of the Indian Constitution allows for specific restrictions on Fundamental Rights when martial law is in force in any area. Hence, through Article 33 and Article 34, Parliament is empowered to restrict, modify, or even suspend certain Fundamental Rights for members of the Armed Forces. Notably, these restrictions primarily pertain to the provisions outlined in Articles 14, 15, and 19 of the Indian Constitution. Consequently, the provisions of the Air Force Act 1950 cannot be challenged solely on the grounds that they infringe upon Fundamental Rights. These acts are enacted by Parliament within its legislative jurisdiction, as provided by Article 33 of the Constitution of India.
IMPORTANT LAWS APPLICABLE TO INDIAN AIR FORCE
Air Force Act 1950
The Air Force Act 1950 consists of 194 sections and is divided into 16 chapters.
The applicability of Article 33 of the Indian Constitution is found in section 21 of the Air Force Act which empowers the Central Government to make rules restricting certain Fundamental Rights.
The Air Force Act is mostly a disciplinary code and ensures that the will of the commander is put into effect. The Act broadly deals with two provisions.
Firstly it recognizes certain offences committed by the persons subject to this Act.
Secondly, it lays down procedures regarding enrollment into the force, their arrest and court-martial procedures.
Offences under the Air Force Act: A wide range of offenses is punishable under the act, indicating discipline among the force. Some of the major offences are :
Section 34 : Offences in relation to the enemy, committed treacherously, intentionally with knowledge.
Section 35: Offences in relation to the enemy committed negligently or without due authority.
Section 37 : Mutiny
Section 38: Desertion and aiding desertion
Section 40: Striking or threatening a superior officer
Section 57: Falsifying official documents and false declaration
Section 64: Disobedience of lawful command.
Chapter III (Section 10-17) deals with the commission, Appointment, and Enrollment of personnel into the Air Force. The commission is related to Officers, Enrollment for Airmen/NCs( E), and appointment for Civilians.
A Court Martial is a legal proceeding or a trial conducted for the personnel belonging to Air Force Act. Court Martial is a tribunal. Section 109 of the Act determines three different kinds of Court martial.
(i) General Court Martial
(ii) District Court Martial
(iii) Summary General Court Martial
The Armed Forces Special Powers Act (AFSPA)
Armed Forces are deployed in counter insurgency / terrorist operations when all other forces available to the State have failed to bring the situation under control. Armed forces operating in such an environment require certain special powers and protection in the form of an enabling law.
The Armed Forces Special Powers Act (AFSPA) was enacted by the Parliament and confers certain special powers on members of the Armed Forces (military forces, air forces operating on ground as land forces and any other armed forces of the Union (CRPF, BSF, ITBP etc)for carrying out proactive operations against the insurgents in a highly hostile environment. AFSPA comes into effect only in Disturbed Areas. Some of the important provisions are:
Section 3 It lays down the authority which has power to declare areas to be disturbed. These authorities are the Central and the State Governments.
Section 4 It gives the Army (including Air Force & Navy) powers to search premises and make arrests without warrants, to use force even to the extent of causing death, destroy arms / ammunition dumps, fortifications/ shelters / hideouts and to stop, search and seize any vehicle.
PROVISIONS IN INDIAN PENAL CODE 1860
Chapter VII of IPC 1860 deals with offenses relating to the Air Force
Section 131 Abetting Mutiny, or attempting to seduce an Airman from his duty.
Section 132 Abetment of mutiny, if mutiny is committed in consequence thereof.
Section 133 Abetment of assault by Airman on his superior officer.
Section 134 Abetment of such assault, if the assault is committed.
Section 135 Abetment of desertion of Airmen.
Section 136 Harbouring Deserter.
Section 137 Deserter concealed
Section 138 Abetment of act of insubordination by Airmen.
Section 139 Persons subject to certain acts
PROVISIONS IN CRPC
Section 45: Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government.
Sections 130 to 132 The procedure for use of Armed Forces to disperse a mob bent on violence is provided in Sections 130 to 132 of the Code of Criminal Procedure (CrPC) of 1973.
Section 475: The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950 ), the Navy Act, 1957 (62 of 1957 ), and the Air Force Act, 1950 (45 of 1950 ), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Court- martial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court- martial, such Magistrate shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by a Court- martial.
Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.
A High Court may, if it thinks fit, direct that a prisoner detained in any jail situated within the State be brought before a Court- martial for trial or to be examined touching any matter pending before the Court- martial.
PROVISIONS IN CPC
Order V Rule 28: The summons process is mentioned in Order V Rule 28 for servicing summons to soldiers, sailors or Airmen. Rule 28 of Order V states that the summons of service shall be sent to the Commanding Officer along with the Copy to be retained by the Defendant. The suit filing process against the armed forces personnel is the same as that of the regular suit but the only difference is of the service process and the privileges
IMMUNITIES AVAILABLE TO AIR FORCE PERSONNEL
Immunity from attachment
According to Section 28 of the Air Force Act, no arms, clothes, equipment, necessaries, or animals used by any person for the performance of his duties may be confiscated nor can his pay, allowances, or any part thereof may be attached by the direction of any civil or revenue court or revenue officer to the satisfaction of any decree or order that may be enforced against him.
Immunity from arrest for debt
According to Section 29 of the Air Force Act, any person who belongs to the armed forces is not liable to be arrested under any process issued by the authority of any civil, revenue court or revenue officer. In case, if an arrest is made then the revenue officer may discharge such person by awarding reasonable costs to the Complaint concerned on receipt of a complaint by such person or his superior to that effect. Costs can be recovered in the same way as if they had been awarded by a decree against the individual obtaining the processes and no court fees are required to be paid for the recovery of such costs.
Immunity of persons conducting court-martial from arrest
According to Section 30 of the Air Force Act, 1950 no presiding officer or member of a Court-martial, no Judge advocate, no party to any proceedings before a Court-martial, or his legal practitioner or representative, and no witness acting in obedience to a summons to a Court-martial while proceeding or returning from the Court-martial, may be detained in civil or revenue proceedings. If such a person is arrested under any such practice, he can be discharged by order of the Court-martial.
PRIVILEGES AVAILABLE TO AIR FORCE PERSONNEL
Priority in respect of litigation
According to section 32 of the Air Force Act, 1950 any person of the armed forces is subject to obtain the certificate from the proper military/ Air Force authority to grant leave of absence or the leave applied by him to prosecute any suit or defend any such suit. The Court shall on the application of such a person may keep it for the hearing and final disposal of suit within the period of the leave so granted.
Speedy disposal of cases
Civil courts should dispose of all suits for prosecution or defense, of officers, soldiers, or reservists who have received leave of absence as quickly as is compatible with the administration of justice, irrespective of the order in which they are recorded.
IMPORTANT SUPREME COURT JUDGMENTS
Naga People’s Movement of Human Rights v. Union of India
In this judgment, the Supreme Court arrived at a conclusion that A suo-motto declaration can be made by the Central government; however, it is desirable that the state government should be consulted by the central government before making the declaration.
Extra Judicial Execution Victim Families Association (EEVFAM) V/s Union of India & Anr
In this judgment, the Supreme Court arrived at a conclusion that no blanket immunity will be available to the armed forces personnel for the unjustified death.
The legal framework governing the Indian Air Force is primarily based on the Air Force Act 1950, which acts as the main source of Air Force Law. This Act is further supplemented by subsequent Manuals, Rules, and Regulations that have been issued and updated over time, subject to amendments as necessary.
In addition to the Air Force Act 1950, the Air Force also relies on two additional forms of guidance to specify and delegate the content and subjects covered by the Act. These include Air Force Orders and Air Force Instructions.
Air Force Orders are issued on specific subjects and carry the signature of the Chief of the Air Staff. They primarily focus on internal policy matters that concern Air Force personnel. On the other hand, Air Force Instructions are issued by the Ministry of Defence and cover various policy matters that affect the Air Force as a whole.
It is worth noting that the Air Force Act 1950 is the primary authority and legal framework for the Indian Air Force. There are no other Acts or laws that unilaterally apply to the Indian Air Force, apart from the ones discussed above. The Act, along with the subsequent Manuals, Rules, and Regulations, form the basis for the operations, policies, and internal governance of the Indian Air Force.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat