Summary Court Martial The Indian Armed Forces
Summary Court Martial persist in adhering to a military justice framework bequeathed by the British, even as the legal landscape in the UK has evolved to align with modern justice practices. The rights enshrined in the Indian Constitution for individuals find scant reflection in the laws governing armed forces personnel. The Army Act of 1950, particularly the provisions pertaining to summary courts-martial, essentially perpetuates a system replete with inherent flaws inherited from the past.
This system denies the accused the modicum of decency and fair play that should be inherent in any democratic society subscribing to the rule of law—a departure from the evolving military justice systems in other democracies. These systems are progressively affording fundamental rights to armed forces members, prompting a call to reassess India’s extant military justice system—a system conceived to assert stringent control over the indigenous army.
The unique provisions related to summary courts-martial are exclusive to the Indian Army, setting it apart from other democracies worldwide. No other democratic nation concentrates such sweeping powers in the hands of an individual to curtail another citizen’s livelihood and freedom, sans recourse to any form of appeal.
Origin:
The genesis of summary courts-martial traces back to post-1857, following the mutiny in the Bengal Army. The discipline of the regular Indian Army had markedly deteriorated before the catastrophe, prompting a comparison with irregular troops, particularly the Punjab Irregular Force. Notably, the latter exhibited superior discipline. Post-mutiny, an inquiry revealed the significant role played by the commandant of a regular regiment, who possessed minimal power to punish or reward his men.
In contrast, the commanding officer of a Punjab Irregular Force regiment wielded considerable authority, promptly addressing military offenses. This system seemed rooted in the amalgamation of roles—deputy commissioner, political officer, and military commandant—held by a single individual, prevalent on the Frontier during those times. This union empowered the commanding officer to convict and sentence military offenders, issuing warrants for execution respected by civil and prison officials. With the reorganization of the Indian Army, summary courts-martial were tentatively introduced and firmly established in 1869 as part of the legal machinery. The procedures and powers governing summary courts-martial were codified in Articles 93-97 and 107 of the 1869 Indian Articles of War.
Salient Features of Summary Court Martial:
A commanding officer of any corps, department, or detachment of the regular army to which the accused belongs may convene a summary court-martial. The commanding officer constitutes the sole court, attended by two other persons, either officers or junior commissioned officers. While present, these individuals remain unsworn and uninvolved in the proceedings, lacking the right to vote on findings or sentences.
The jurisdiction of summary courts-martial mirrors that of superior courts-martial, encompassing all offenses and offenders, excluding those exclusively punishable by a general court-martial or capital punishment. A summary court-martial holds the authority to impose any sentence allowable under the Army Act for the charged offense, barring death or imprisonment exceeding one year.
However, if the presiding officer is a Major or lower in rank, the court cannot decree imprisonment exceeding three months. Unlike general courts-martial, an accused at a summary court-martial is not entitled to a defense officer or counsel; instead, they may enlist a friend’s assistance. The commanding officer assumes the prosecutor’s role, conducting the primary examination of witnesses supporting the charge.
Summary Court Martial and the Judicial Interface:
Historically, summary courts-martial decisions were considered final in independent India. Rarely did a soldier challenge these in civil courts, and appeals mostly targeted superior officers within the military hierarchy. Pleas from the accused who pleaded guilty faced hurdles in establishing innocence or contesting the sentence. Yet, a shift is underway, with challenges to summary court-martial awards surfacing in High Courts and the Supreme Court. Notably, higher courts have critiqued these proceedings, deeming them biased, unfair, and disproportionate to the offenses. Several cases underscore this evolving trend:
- Judicial Review of Biased Decision (Ranjit Thakur vs. Union of India): The appellant, undergoing imprisonment, faced a second offense tried by a summary court-martial. The commanding officer’s involvement led to a biased process, and the Supreme Court, echoing Lord Denning, found the proceedings Coram non-judice. The punishment was deemed disproportionately severe, resulting in the quashing of the court-martial.
- Injustice (Sivaraman Nair v. Union of India): The summary court-martial’s proceedings, dismissing Sepoy Sivaraman, did not align with rules. While upholding discipline’s importance, the Supreme Court altered the punishment, deeming the dismissal unjust, with the appellant eligible for pension after 15 years of service.
- Quantum of Punishment (Chaudhry M.R. Ex. Sepoy v. Union of India): The Himachal Pradesh High Court set aside a dismissal and imprisonment verdict, deeming it disproportionate to the offense—criminal force against a JCO during IPKF service.
- Retrial (Duralbabu R.v. Union of India): The petitioner faced a retrial after summary court-martial proceedings were set aside. Legal nuances were debated, emphasizing the need for adherence to jurisdictional rules.
- Fast-track Court-martial (Balkan Singh v. Union of India): A summary court-martial’s swift trial faced scrutiny in the J & K High Court due to procedural violations, leading to the writ petition’s success.
- Procedural Lapses (Uma Shankar Pathak vs. Union of India): Non-compliance with Army Rules 34 and 115 prompted the Allahabad High Court to quash summary court-martial proceedings, emphasizing procedural impropriety.
- Violation of Article 20(2) of the Constitution (Surinder Singh v. Union of India): The Madhya Pradesh High Court quashed general court-martial proceedings, citing violation of Article 20(2) and Section 121 of the Army Act
Also Read General Court Martial (GCM) can be contested before an Armed Forces Tribunal (AFT). Union of India & Ors. Vs. P.S. Gill, Criminal Appeal No. 404 of 2013 - Biased and Unfair Trial (Lance Naik Mirza Narza Ahmed v. Union of India): J & K High Court addressed bias, preparation of evidence, and lack of evidence concerns, ultimately setting aside summary court-martial proceedings.
- Severe and Disproportionate Punishment (Ex-Naik Sardar Singh v. Union of India): Carrying extra rum bottles resulted in a severe summary court-martial punishment, overturned by the Supreme Court as disproportionate, emphasizing a lesser sentence.
- Unfair and Unjust Trial (Ex Hav Prithpal Singh v. Union of India): Summary court-martial proceedings faced scrutiny in the Jammu and Kashmir High Court due to non-compliance with Army Rules 115 and 129. Procedural flaws led to the proceedings’ setting aside, emphasizing fairness and judicial norms.
Conclusion:
Regrettably, in contemporary India, those who pledge their lives to defend the nation’s honor lack protection against arbitrary actions in the name of discipline. The lofty ideals of the rule of law and natural justice find little relevance in their lives. Should a summary court-martial dispense punishment, the recourse for justice becomes a labyrinthine journey, with no forum for asserting rightful claims. Venturing into higher courts is hampered by constitutional articles, the Army Act of 1950, legal ignorance, and prohibitive expenses.
This indifference stems from the bureaucratic and political control over military affairs, maintaining a psychological subservience to outdated British practices. Service members find themselves disowned by service laws in the guise of discipline. If the Indian Air Force and Indian Navy function without summary court-martials, the Army can follow . The existing court-martial system arose from mutiny-era necessities, and its continued existence lacks justification under the constitution in its current form.
Military law in India demands a rejuvenated jurisprudence, fresh legal perspectives, and an orientation favoring human rights protection. Fundamental to a common Indian soldier is the fundamental question of livelihood, overshadowing concerns of political and civil liberties. The protection of these liberties and constitutional safeguards is a distant prospect. Consequently, the state must uphold the soldier’s right to a fair justice system.
The military justice system, particularly as administered by summary courts-martial, has faced disapproval from the Supreme Court. Cases reaching superior civil courts illustrate the quality of justice meted out to Indian soldiers, emphasizing the need for a just and equitable system to maintain discipline and foster contentment within the ranks. For democracy to flourish, a robust defense force is indispensable, comprising individuals deserving dignity and justice.
