Indian army is the third largest force in the world. India has a total of 1.4 million active army excluding 11.55 reserve forces. Apart from the armed forces on ground, we have a strong Air Force and Naval Force consisting of around 140,000 and 60,000 active members respectively. It is a well-known saying among the military corridors that in terms of battle on the ground; Indian soldiers are counted among the best soldiers in the world. It would not be hyperbole to say that "If an army has English officer, American weapons and Indian soldiers then nobody can defeat this army."
In India, The Army is regulated by Army Act 1950, Air Force and Navy are constituted under their respective Acts of 1950 and 1957. The Army Act 1950 is more or less on similar lines as that of Indian Army under British control under which larger parts of commissioned officers were British and the cadre of lower ranks of soldiers including junior commissioned officers was from rural or semi urban part of India. After getting Independence in 1947, a major overhaul of laws prevalent in the British era was done and many such Acts or provisions of Acts were abolished which were either against the very spirit of free India or were derogatory towards the people of India. But the Army Act 1950 remained same by and large except a few superficial and cosmetic changes.
JURISPRUDENCE OF MILITARY JUSTICE
The Army Act 1950, establishes a court to try offences committed by the officers or members subject to this Act. These courts are known as Court-Martial. The Army Act describes the composition of these Court Martials and the procedure within the organization in detail.
Four kinds of Court Martial are given under section 108 of the Act.
Section 108 states that, "For the purpose of this Act there shall be four kind of Court Martial, that is to say,-
(a) General Court Martial
(b) District Court Martial
(c) Summary General Court Martial
(d) Summary Court Martial.
These are four kinds of Court-Martials and they operate at different levels. Almost all the offences committed by any army personnel would be tried by a Court-Martial. The offences that can be tried by the Court-Martial have been given in the Chapter VI of the Army Act, 1950. However, an exception wherein Court-Martial does not have its jurisdiction, is when any army personnel commits an offence of murder, or
culpable-homicide not amounting to murder, or rape against a person not subject to Army Act.
But, there is an exception to the above exception according to which the Court-Martial will have jurisdiction over the matter if the offence was committed:
1) While on active service
2) At any place outside India
3) At a frontier post specified by the Central Government in notification.
Reliability of Court Martial
The criminal justice system of military is fully dependent on court martials. These courts are constituted under the provisions of Army Act and not otherwise. The four kinds of Courts as mentioned in section 108 of the Act are convened by the senior military officers. Almost all the members of these courts are from non- legal backgrounds except the Judge Advocate, who is the only officer who sits in all courts except the summary court Martial.
When it comes to the reliability and fairness of the trial of military courts, then it becomes necessary to look at the composition of these military courts.
(A) General Court-Martial
Not less than five officers and each must have held a commission for not less than three years. Amongst the five, not less than four should be above the rank of Captain. This court Martial can be constituted for any rank who is subject to this Act and can give any kind of punishment as prescribed under Army Act.
(B) District Court-Martial
Not less than three officers and each must have held a commission for not less than two years. This court- martial shall have power to try any person subject to this Act other than an officer or a junior commissioned officer for any offence made
punishable therein, and to pass any sentence authorised by this Act other than a sentence of death, transportation, or imprisonment for a term exceeding two years: Provided that a district court- martial shall not sentence a warrant officer to imprisonment.
Hence, the district court Martial can try only person below junior commissioned officers with competency to award punishment up to two years of imprisonment only.
(C) Summary General Court Martial
This court consists of not less than three officers and like General Court Martial, this can also award any punishment as prescribed under Act.
(D) Summary Court Martial
This court is most controversial and its reliability is more often questioned now a days. This is constituted by the local commanding officer of the unit and he is the only prosecuting officer under this court. The maximum sentence prescribed under this court is imprisonment of one year. As the name suggests, this court follows summary proceedings and trial is completed within few days and in some cases within few hours.
As per section 116 of Army Act, Summary Court Martial may be constituted by commanding officer of any corps, department or detachment of regular army and he shall alone constitute this court. Moreover, subsection (2) of this section says that the proceedings shall be attended by two other persons-throughout who shall be officers or JCO or one either.
Now coming back on the reliability and fairness of court Martial, these courts have been functioning under ambit of military laws in India with due respect, a primary reason being that the general public has a great allegiance and faith on the working culture of the Army at large. The speedy trial of cases unlike the civil court is assumed to be signature tune of these military courts. The court martials work pragmatically on the principle that justice delayed is justice denied. Moreover, in order to maintain the discipline of forces, it is significant to dispose of the matter expeditiously otherwise it will adversely impact the moral of forces.
However, it is pertinent to note that the court proceedings should not be decided or impacted by public sentiments. If the justice delayed is justice denied then it is equally true that justice hurried is justice buried.
It is a substantial and procedural law in army that takes care of everyone from the sepoy to the Chief. As is the case with much of India's Penal Code, even the Military Act has remained by and large unchanged from its colonial days. The proceedings, for instance, are recorded in English. The majority of the troops and junior commissioned officers are not fluent in the language, making their access to case papers difficult. During the course of the court martial, the accused is denied bail and not even allowed to meet his family, provisions that are available in the trial stage in civil courts.
A trial in the services is usually referred to as a court martial and the laws for conducting this are as those laid out in the Act and rules of Army. Before a case goes to court martial, a court of inquiry may be conducted in which the evidence is examined. This is done under the command of a senior officer known as the convening authority.
A court martial is a temporary body assumed by a senior military officer after looking into the charges against an accused solider, As discussed earlier, all the courts are consisting of senior army officers but interestingly, none of the officers who constitute a court martial save the officer from JAG are trained in law. They are simply men in uniform, thus having meager knowledge of the reliability of evidences and fairness of a justice system. The lack of opportunity given to the accused person to show cause also goes against the basic principle of common law, audi-alterum partem, that is no one should be condemned unheard.
There are, however, certain rank protocols to be followed when convening a court martial with the lowest rank of a presiding officer being a full colonel. If the accused is an officer, then members have to be of that rank or above. The accused is allowed a "suitable counsel" and the trial is conducted with a proper examination of proof and witnesses. The quantum of punishment awarded by the court martial has to be signed upon by the convening officer who also has the power to send back the sentence if not satisfied. A trial can be spread over some months with the court martial being convened from time to time. This approach is generally followed in all court Martials save summary courts. Moreover, other than conviction under a summary court Martial,
an accused has the right to go to the Armed Forces Tribunal (AFT) if he is not happy with the sentence. And in case he is not happy with the ruling of the AFT also, he can approach the Supreme Court. Moreover, his other legal options; like remedy by way of a writ petition to the High Court under Art 226 of the Constitution of India are also open.
But the problems with this system are manifold. First and foremost, none of the officers are legally qualified. Secondly, since the convening officer is of the highest rank, there is the question of whether the other officers who constitute the court martial can act in an independent manner. The rank structure and hierarchy in army is strongly rooted and junior officer present in court Martial hardly dissent the opinion of his seniors or the convening officer. Though as per law, any dissenting member may attach his dissent but this is hardly seen in military court proceedings.
Army officers cannot be clear of command influence and cannot be completely independent while exercising their judgment. Although in some cases before court martial, a court of inquiry is set up in which it is determined whether the evidence supports the charges. The convening officer of a court of inquiry appoints the court martial members and has the final say in the sentence which points to a clear conflict of interest.
In many precedents, the European Courts have ruled that service officer's lack of legal qualification or experience makes it impossible for them to act in an independent or impartial manner.
Notorious Summary Court Martial
The most questionable court in military justice system is summary court Martial. Though the maximum punishment under the competency of this court is one year, but it is infamous at least in the eyes of jurists because of its arbitrariness. In such courts, the only person to whom all discretion given is commanding officer of the unit of accused member. The accused under this court are only persons of non-officer rank (up to rank of Havildar) who lag behind educationally when compared to officers and junior commissioned officers in the same unit or regiment. Commanding officer is the sole in-charge of this court as other two members of court (usually junior officers or JCOs) can't dare to dissent to the opinion of the commanding officer. In summary court Martial, there is no proper trial and cases may be disposed of as per the whims and fancies of commanding officer. The evidence taking process is arbitrary and no natural justice is properly followed. There is no provision of having a legal advisor or pleader to assist the accused. There is no process of cross-examination of witness by the accused. Sometimes, a court of inquiry is constituted by commanding officer which is more of a nature of fact finding inquiry. This inquiry report practically becomes the basis of conviction. This is certainly not a good law and against all the cannons of criminal justice system wherein all the powers of justice system like inquiry, evidence collection, prosecution or convening the court are vested in one person. A poor soldier with little or no knowledge of law is forced to plead guilty, which ultimately makes the case strong in favour of prosecution.
The bare minimum of decency and fair play has to be given to every accused irrespective of his caste, custom, sect, organization or any other distinct identity of any form. But the summary court Martial, a colonial practice with colonial mindset which is imposed only upon the soldiers is unconstitutional and unjustified in every aspect.
How proceedings of Summary Court Martial are bad in Law
1. Audi alteram partem is the rule of natural justice, without which all the administrative actions become unconstitutional. In summary court Martial, this aspect is completely ignored.
2. Nemo judex causa sua , meaning thereby, no one shall be judge in his own case. In summary court Martial the commanding officer of unit is interested party and all the proceedings are conducted at his behest. So in such circumstances, commanding officer cannot be assumed to be free from all kind of pre conceived notional biases and prejudices.
3. There is no explainer for this fact that only the lower ranks are subject to summary court martials. Why this is not applicable to officers. This is an utter discrimination and against the manadate of article 14 of Indian constitution.
4. As per Section 129 of Army Act, all the military courts as defined under section 108, except the summary court Martial, shall he attended by Judge advocate, an only legal person from the Judge Advocate General branch of Army. Due to the absence of any legal personality in such court Martial, there is always an apprehension that complete justice is not done.
5. As per section 161 read with section 153 of same Act, no punishment given by any of court Martial, except summary court martial, shall be valid unless it is confirmed by confirming authority of Army. So, here also the bare minimum fairness in the form of approach to higher authorities is curtailed for summary court martial convicts.
6. Section 164 of this Act provides remedy against the order, findings or sentence of all the court Martial. This approach is made available to every accused and for the satisfaction of confirming authority to the correctness, legality and propriety of such order or findings whatever may be the case. As discussed above, subjects of summary court are person of lower ranks with no legal assistance, their approach to such higher confirmation authority is in vain and a futile exercise for them.
7. If there is a fault in court of inquiry, then accused does not have any remedy to file any protest petition or any other remedy of like nature.
Why army needs summary court martial
Most of the modern armies of democratic countries do not follow such kind of criminal courts in which the minimum fairness is not available. The British Army, from where our army inherited this criminal court does not own the summary court martial in their military jurisprudence. Even in our own Airforce and Navy do not have such kind of kangaroo courts which infringe the already infringed fundamental rights of a solider. Indian army took all provisions of court martial from colonial Indian army controlled by Britishers. The provisions of summary court martial were added in military law only after 1857 after the sepoy mutiny in order to contain the Indian soldiers.
The provisions relating to summary courts martial are in essence a continuation of the then prevalent system with all its inherent defects. It denies the accused a minimum degree of decency and fair play that must be guaranteed in any democratic society professing to follow the concept of rule of law. The world is moving towards granting all the fundamental rights to the members of the armed forces which has led to a demand for reviewing the existing military justice system in India- a system conceived to keep the native army under strict control.
The only contention which can be raised in favour of such courts is that it accelerates the trial process which is ultimately indispensable for discipline within army. But this argument is not wholly sustainable and bereft of reasons.
Discipline is a subjective matter and it should be dealt accordingly. Crafting a process of justice system more fair and free will not affect the discipline adversely rather this will boost up the morals of subordinates particularly jawans who are vulnerable to such unjust and arbitrary courts. Legal illiteracy along with low level of academic education makes the troops to fall easy prey for such courts. When no democratic country has this kind of kangaroo courts then their existence in a democratic army like that of India is beyond any logic or reason. No amount of justification is ample for advocacy of such summary trial in military law.
Summary Court Martial in eyes of Indian Judiciary
Summary court-martial has been used extensively even in independent India. Till recently the decisions of summary courts-martial were considered final. Hardly any soldier approached civil courts against the award of a summary court-martial. Appeals were addressed merely to Superior offices in the army in the forms of petitions and provisions under the regulations for the army and were generally rejected. One reason for the rejection of such pleas was that once an accused pleaded is declared guilty, it would become difficult for him to establish his innocence or the injustice of the award of punishment at a later stage. However the trend is changing and the awards of summary court-martial are being challenged in various High courts, and Supreme Court. In a large number of cases the higher courts have criticized the justice system followed by a summary court-martial. They have even quashed much such derision as being biased, unfair, and unjust and declared the punishment disproportionate to the offence. Some of these cases are as follows:
Ranjit Thakur V Union of India-The appellant, Ranjit Thakur, joined the Armed Services on September 7, 1972, and was, at the relevant time, a Signal Man in "4, Corps operating Signal Regiment." located at Tezpur in Assam. Apparently, appellant had not commended himself well to respondent No. 4, who was the commanding officer of the regiment. On March 29, 1985, appellant was already serving- out a sentence of 28 days rigorous imprisonment imposed on him for violating the norms for presenting representations to higher officers. Appellant had also sent representation complaining of ill-treatment at the hands of Respondent 4 directly to the higher officers. Appellant was punished for that by Respondent 4. Appellant was held in the Quarter-guard Cell in handcuffs to serve that sentence of rigorous imprisonment. In this case criticizing the decision of summary court martial, Apex court held that:
(i) The proceedings of the Court-Martial are vitiated by non-compliance with the mandate of Section 130(1) of the Act in that the Summary Court Martial did not afford to the appellant an opportunity to challenge its constitution as required by that section;
(ii) The proceedings of the Court-Martial were vitiated by bias on the part of Respondent 4 who participated in and dominated the proceedings.
Jaswant Singh vs Union of India (2018)- Supreme Court in this case interpreted the rule 129 of Army rules 1954 and said that even in summary court martial, the accused can take assistance of legal advisor. As per the facts of the case, the appellant was a sepoy in the army who had joined service on January 1, 2003 was dismissed from the service and sentenced to six months' imprisonment after Summary Court-Martial (SCM).Bench of Justices D.Y. Chandrachud and M.R. Shah set aside the order of December 18, 2012 of Armed Force Tribunal (AFT), Lucknow bench, and the decision taken on the basis of the Summary Court Martial and observed that, "In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense," The court said that there was a clear violation of the principles of natural justice as the "prejudice is too evident".
"The appellant was dismissed from service and sentenced to six months' imprisonment. Both his livelihood and liberty were taken away," the bench said while setting aside the order of AFT and the decision taken on the basis of the SCM. He had requested the Commanding Officer to permit him to hire a civil advocate. On July 8, 2009, the request of sepoy was turned down on the ground that under Regulation 479 of the Army Regulations, a civil advocate is permissible to only those persons who are subject to trial for an offence which entails death penalty.
"The Rule clearly indicates that in a Summary Court Martial, the accused may have a person to assist him during the trial, whether a legal adviser or any other person. The expression 'may' must be read to mean that the person who is proceeded against has the option on whether or not to engage a legal advisor or any other person. It represents an entitlement to be represented," the bench observed.
Lance Naik Mirza Narza Ahmed v. Union of India- The proceedings of the summary Court-martial were challenged on the these grounds (i) the commanding officer was biased against the petitioner, (ii) the summary of evidence was prepared by the commanding officer and, therefore, was not qualified to preside over the Court and (iii) there was no evidence against the petitioner. After examining the case the J & K High Court repelled the first two contentions but found the third contention tenable because under Section 52(b) of the Army Act, the proceedings disclosed neither any evidence of entrustment nor of disposal of property by the petitioner. Accordingly the Court set aside the proceedings.
On the face of it, the prescribed procedure under the summary court martial appears to be bad in law as it lacks principles of natural justice in its operation. India is a democratic country so is her army. The discipline, ethos and culture of Indian army is well recognized all over the world. It is true that in order to maintain this culture and discipline, there should be zero tolerance towards the offences within organization and the trial and conviction of such offenders should be fast and expeditious. But it does not mean that in the haste of expeditious disposal of cases in the name of discipline, the basic and fundamental pillar of any fair criminal justice system is done away with. The present form of summary court martial lacks in principles of natural justice to the accused. Neither the accused is heard properly nor is he permitted to be represented by any civil advocate or any legal advisor. It is high time that the Central government in consultation with the Army develops a new mechanism of the proceedings of summary trial by which neither the discipline nor the rights of accused of fair trial are compromised.
Views Are Personal Only
(Aanchal Dahiya is Visiting faculty, Faculty of Law, University of Delhi Co-author Hari Mudgil is Lawyer and Research Scholar.)