Summary Court Marital And The Indian Judiciary

Introduction: 
The Indian Army is still following the system of military justice it inherited from the British though the law in the UK has changed to deep pace with the modern practices of justice. The right of the individuals enshrined in the Indian Constitution is not reflected in the laws that govern the personnel of the armed forces. The Army Act 1950 especially 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 the minimum degree of decency and fair play that must be guaranteed in any democratic society professing to follow the concept of rule of law and causational system the military justice system off other democracies. Which are moving towards granting all the fundamental rights to the members of the armed forces have 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 existing provisions relating to summary courts martial are peculiar to the Indian Army. No other democracy in the work has concentrated such sweeping powers in the hands of an individual to deprive another citizen of his livelihood and freedom, that too, without recourse to any appeal.

Origin:
The provisions for summary courts martial were not introduced into the regular army till after the mutiny in the Bengal Army in 1857. The discipline of the regular Indian Army had, for some time before that catastrophe, seriously deteriorate and it was noticed that an irregular troops, especially the Punjab irregular Force, where in this respect in a much better state than their comrades of the regular army. After the suppression of the mutiny the reason for this difference was sought, and it was found to be insignificance occupied of comparative insignificance occupied by the commandant of a regular regiment, who had practically no power to punish or reward his own men. In contrast the commanding officer of a regiment of the Punjab irregular Force had almost absolute power and could himself deal promptly and effectively with all military of fenders. This system appears to have had its origin in the union, frequent in those days on the Frontier, of the functions of deputy commissioner, political officer and military commandant in one and the same person. This union of power enabled the commanding officer to convict and sentence a military offender, and thereafter to issue a warrant for the execution of the sentence, which was respected by the civil and prison officials as emanation from him in his civil and magisterial capacity. When a new Indian Army came to be organized on the ruins of the old, it was realized that the hands of the regimental commanding officer would have to be strengthened if the 'evils' which had gal Army were to be avoided. With this object in mind summary courts martial were at first introduced tentatively and in 1869 established definitely as part of the legal machinery of the Indian Army. The procedure and powers relation to the summary court martial were contained in Articles 93-97 and 107 of the Indian Articles of War of 1869.

Summary Courts martial: Salient Features
A Summary court martial may be held by the commanding officer of any corps, department or detachment of the regular army to which the accused belongs. The commanding officer alone constitutes the court. The proceedings of a summary court-martial are attended by two other persons who are officers or junior commissioned officers. They are, however, not to be sworn or affirmed are, however, not they supposed to take part in the proceedings. They have no right to vote in determining lither the findings or the sentence. The procedure to be followed at a summary court-martial is different in many in many ways to the procedure adopted at trial by general, summary general and district courts-martial. The jurisdiction of the summary courts-martial is co-extensive as to all offences and offenders with that of the superior courts martial. In other words, a summary court-marital is legally offences of soldiers (Havildar and below) however grave, provided the same are not made punishable capitally or exclusively by a general court-martial.

A Summary court-martial may pass any sentence that could be awarded under the Army Act in respect of the offence charged except a sentence of death or imprisonment for a term exceeding one year. However where the officer holding the summary court-martial is of the rank of Major or be low, a summary court-martial cannot award punishment of imprisonment exceeding three months. At a summary court-martial an accused is not entitled to defend himself with the help of a defending officer or counsel. He is, however, allowed a friend to assist him in conducting his defense. There being no prosecutor at a summary court-martial the commanding officer himself plays the part of the prosecutor in doing the chief examination of witnesses in support of the charge.

Summary Courts martial and the 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 and were generally rejected. One reason for the rejection of such pleas was that once an accused pleaded guilty. It would become difficult for him to establish his innocence or the injustice of the award 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:

1. Judicial Review of Biased Decision
In Ranjit Thakur vs. Union of India[1] the appellant Ranjit Thakur at the time of alleged offence was undergoing a sentence of 28 days of rigorous imprisonment for violating the service norms by sending representation to higher officers against a decision of his commanding officer. He had sent a representation to higher officers complaining of ill-treatment at the hands of his commanding officer. For this he was tried summarily by his commanding officer and awarded punishment under Section 80 of the army Act. He was held in the quarter guard cell in handcuffs to serve out his sentence. While serving the above sentence, he committed another offence and was charged under Section 41(2) of the Army Act for disobeying a lawful command given by his superior officer. The offence was when ordered by Subedar Ram Singh the Orderly Officer of the same regiment to eat his food he did not do so.

To try his offence a summary court-martial was assembled the day after he committed the said offence. The commanding officer of the appellant and two other officers serving under him were on the court-martial. The appellant was stated to have pleaded guilty and a sentence of rigorous imprisonment for one year was imposed by the summary court-martial. The appellant was also dismissed from service with the added disqualification of being declared unfit for any future civil employment to the civil prison at Tezpur to survey out the confirming authority under to the confirming authority under Section 164 of the Army Act was rejected by the General Officer Commanding. There alter, he challenged the proceedings of the summary court-martial before the High Court, which also dismissed his writ partition in limine. Feeling aggrieved by the order of the High court, he approached the Supreme Court by way of a special Leave Petition

The Supreme Court, in its judgment quoted with approval the observation of Lord Denning in the matter of M.R. Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, [2] : In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever, it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression, which would be given to other people. Even if he was as impartial as could be nevertheless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit .

Accordingly, the Supreme Court came to the conclusion that the participation of the commanding officer rendered the proceedings Coram non-judice. The Court also found the punishment awarded to be strikingly disproportionate to the offence committed As a result, the appeal was allowed and the proceedings of the court-martial and the subsequent orders were quashed.

The pertinent observation of the Supreme Court with regard to the severity of sentence was, "Judicial review, generally speaking is not directed against a decision, but is directed against the, decision making process. 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 reality as part of the concept of judicial review, would ensure that even on an aspect which otherwise, within the exclusive, province of the court-martial if the sentence is an outrageous defiance of logic then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review. The Supreme Court held, in this case that here the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review. The Court ordered reinstatement of the appellant with all monetary and service benefits but did not grant any compensation for the one year R.I. already undergone by him.

2. Injustice
In Sivaraman Nair v. Union of India [3] Sepoy Sivaraman was dismissed from service for an incident which took place on December 25, 1985. He was charge-sheeted for having given a blow to one of his superior officers. He pleaded guilty to the charge. He was sentenced to three months rigorous imprisonment and dismissal. The High Court dismissed the writ petition. On appeal the Supreme Court held that the proceedings of the summary court martial did not appear to have been strictly in accordance with the rules and there was much to be said on the behalf of the appellant. The Supreme Court further stated that discipline being of the almost importance in the army, we refrain from setting aside the order and remanding the case for retrial. But the injustice to the appellant instead of being dismissed from the service should be deemed to have rebred after completion of 15 years of service which is the minimum requirement for eligibility of pension. The order for punishment therefore, shall stand substituted to this extent. But the petitioner shall not be entitled to back wages. Considering the poor circumstances in which the appellant is and the fact that he has suffered rigorous imprisonment of three months, he should be given 1/4 th of the back wages till retirement.

3. Quantum of Punishment
 In Chaudhry M.R. Ex. Sepoy v. Union of India [4]the Himachal Pradesh High Court set aside the punishment of dismissal and six months of rigorous imprisonment awarded by the summary court-martial. The accused, while serving with the IPKF in Sri Lanka, had used criminal force against a JCO of his unit by giving him a push. The High Court held that the punishment awarded was not commensurate with the offence.

4. Retrial
In Duralbabu R.v. Union of India [5]after being tried by a summary court martial on a charge of overstayed of leave, the petitioner was found guilty and awarded three months imprisonment and dismissal from service on July 5 1989. The proceedings were set-aside on September 22, 1989 for want of jurisdiction of Court due to non compliance with the provisions of Rule 22. Accordingly. He was brought back to the unit from the civil jail after he consented to being re-instated in the army. The charge was then re-heard the summary of evidence was recorded afresh and the accused brought before a summary Court-martial where he pleaded guilty. He was them sentenced to dismissal from the service on September 30, 1989 He challenged the order of dismissal as volatile of Article 20(2) of the Constitution and Section 121 of the Army Act. It was not for the respondent to set aside the earlier order and order of enquiry and punish the petitioner against in clear violation of Article 20(2) of the Constantan.

5. A Fast track Court-martial
In Balkan Singh v. Union of India[6]the petitioner appealed against his conviction by a summary Court-martial, which sentenced him to three months imprisonment and dismissal from service. He challenged the order on a number of grounds. When the J & K High Court examined the proceedings of the summary Court martial, it was revealed that the trial had been conducted in one hour and forty five minutes on the same day. The records did not provide any clue about the hearing of the charge in accordance with Army Rules order directing the recording of the summary of evidence. The record relating to the summary of evidence had no date and there was nothing on the record to show that the summary of evidence was considered by the commanding officer before remanding the petitioner's trial by summary Court-martial. The plea of guilty was recorded in flagrant violation of the terms of Rule 115. It was also not known who recorded the plea and whether the same was recorded in the presence of the accused. The High Court allowed the writ petition because the entire procedure was volatile of Rules 22, 24 and 115 of the Army Rules.

6. Procedural Lapses
In the case of Uma Shankar Pathak vs. Union of India [7] the proceedings of the summary court-martial were questioned by the Allahabad High Court. The main point raised by the petitioner before the Court pertained to non-compliance with Army Rules 34 and 115. With regard regard to non-compliance with Army Rule 115(2) the Court observed that a bald certificate by the commanding officer that the provisions of Army Rule are hereby complied with is not enough. The record of the proceedings must explicitly state that the court had dully explained to the accused the nature and the meaning of the charge and made him aware of the difference in procedure in cases of pleading guilty/not guilty. The questions put to the accused and his answers have to be reproduced by the Court verbatim. The Court had not done any such thing. With regard to non-compliance with Army Rule 34, the Court observed that the requirement of at least 96 hours notice to the accused is mandatory. The Court found that the petitioner had been informed of the charge only 8 hours before the trial was to commence. Considering the facts and circumstances of the case, the Court reached the conclusion that there had been breach of Rules 34 and 115(2). Consequently the Court quashed the summary Court-martial proceedings and directed the reinstatement of the petitioner with all benefits.

7.Violation of Article 20(2) of the constitution
In the case of Surinder Singh v. Union of India [8]petitioner approached the Madhya Pradesh High Court ,Jabalpur for setting aside the proceedings of the general Court martial which was convened to try him after his conviction by summary court-martial was set aside. His main contention was that he had already been tried and punished for the same offence by a summary Court-martial and retrial was barred under the provisions of Section 121 of the Army Act and Article Contended that the proceeding of the summary Court-martial by which he was tried earlier was quashed for non-compliance with the mandatory provisions of Army Rule 22. As the trial by summary Court - martial was after considering the contentions of the summary Court-martial proceedings could not have been set aside for some technical flaw in the procedure at pre-trial stage. Even according to Section 162 of the Army Act. Summary Court-martial proceedings can be set aside only on the merit of the case and not merely on technical grounds. The Court accordingly quashed the general Court-martial proceedings as being volatile of Army Act Section 121 and Article 20(2) of the Constitution.

8. Procedural Impropriety
Nineteen persons of the Assam Rifles were tried by summary Court-martial for various offences and awarded punishments. They filed separate writ petitions before the Guwahati High Court and challenged the proceedings of the summary Court martial. All the writ petitions were disposed by the high Court by a common judgment viz sadacharan v. Union of India[9] . There were two major items to be considered in the writ petitions. First the petitioners were being considered under two sets of rules, namely
(i) Central Services Ciassification Control and Appeals Rules 1965 and
(ii) Army Act. 1950 the Court held that it would be improper to deal with petitioners under the drastic rules, as it would be arbitrary and violative of Article 14 of Constitution. Second, the summary Court did not record properly the plea of guilty allegedly offered by the petitioners. It was held that the proceedings suffered from procedural impropriety. However the Government filed as SLP in the Supreme Court which was admitted and the operation of the judgment of the Guwahati High Court stayed.

9.Biased and unfair Trial
 In the case of Lance Naik Mirza Narza Ahmed v. Union of India [10]the proceedings of the summary Court-martial were challenged on the 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 be cause on charge 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.

10.Severe and Disproportionate Punishment
In Ex-Naik Sardar Singh v. Union of India,[11] the appellant was carrying seven extra bottles of rum without the necessary permit. He was carrying rum in connection with the marriage of one of his relations. The extra bottles were collected by him against chits given to him by various officers. He was tried by a summary Court-martial and awarded three months rigorous imprisonment and dismissal from service. Considering the nature and circumstances of the case, the Court held that the punishment awarded to the appellant was severe and also violative of Section 72 of the Army Act. Quoting with approval their own observation in the case of Ranjit Thakur, the supreme Court set aside the punishment of three month of rigorous imprisonment and dismissal from the service and remanded the appellant to the Court-martial for awarding lesser punishment with due regard to the nature and circumstances of the case and in the light of the observation made by the Court.

11.Unfair and unjust Trial
In the case of Ex Hav Prithpal Singh v. Union of India. [12]the Jammu and Kashmir High Court was called upon to examine the summary court martial proceedings of the petitioner. The main points agitated by him pertained to non compliance with Army Rules 115 and 129 After Examining the record of the proceedings and hearing the parties, the Court observed From the perusal of The record it appears that one individual was styled as a friend of accused in terms of Rule 129 of the Army Rules. The accused has not opted for the said individual and had at no stage demanded his assistance. Of their own authorities have imposed the said individual on the accused to assist him and there is material to indicate that the accused had protested this individual being his friend in the terms of Rule 129. The plea of guilty recorded during the proceeding was presented before me in original. In reply to each charge word "guilty" is recorded or of any officer who is purported to have written the word "guilty". There is nothing on this paper to indicate that the accused was advised not to plead guilty as is required under Rule 115 of the Army Rules. "The Court set aside the summary Court-martial proceedings and held that the petitioner from service on the bases of proceedings which were concluded in a manner which was neither fair nor judicial. Here the H.C. held that a person bind by the army rules cannot be denied procedural safeguards on the plea that procedures are summary in nature. They do not lose their rights under article 14 of the constitution. Hence they cannot be denied equality before law and equal protection of law.

Conclusion
It is sad that in independent India, those who have pledged their lives for defending the honor of the nation have no protection against arbitrary action in the name of discipline". Phrases like the rule of law and "natural justice" have no role to play in their lives. In the event of being punished by a summary Court martial they run from pillar to post as there is no forum to fight for their just rights. It someone dares to think of going to the higher courts for justice. Articles 33, 136 (2) and 227 (4) of the constitution, the Army Act of 1950, the ignorance of advocates and high legal expenses blocks his path. This is sadly due to the in different attitude of bureaucrats and political who control military matters. Despite more than 55 years of independence, military leadership in India is reluctant to release itself form the psychological subjection to the old British way of life. This is includes continuation of the justice delivery system conceived by the British to keep Indian troops under strict check. Serviceman is disowned by their service laws in the name of discipline. If the Indian Air Force and the Indian Navy can function without the provisions of summary court marital, so should the Indian Army. This system of Court martial came into existence to serve the needs of the mutiny days when certain rough and ready system of punishment had to be resorted to. There is hardly any justification to keep this system going in its present form under the constitution.

Military law in India needs a new jurisprudence, fresh legal thinking and a new orientation towards the protection of human rights. What is of utmost importance to a common Indian soldier is the basic question of earning a livelihood. The protection of political and civil liberties and constitutional protection are remote ideas to him. In such a scenario it becomes the prime duty of the State to protect his right to a fair justice system. The military justice system, especially rail by the summary Court-martial has been frowned upon by the Supreme Court. The handfuls of cases of trial by summary court martial which have come up for the scrutiny of the superior civil courts provide sample evidence of the quality of justice available to Indian soldiers. We must realize that members of a highly disciplined and efficient force do need not to be subjected to an unfair justice system in the name of maintaining discipline. Tuscan only gives rise to discontent and may be even indiscipline. We must remember that for a democratize to succeed; a strong defense force is indispensable. And that such a strong deficient force is made of people - people who deserve to be treated with dignity and justice.

End Notes
[1] 1988 Cri W 158 ,AIR 1987 SC 2386
[2] (1969) 1 QB 577 p. 599
[3] Supreme Court Civil Appeal No 1093 of 1989
[4] CWP No 563 of 1990
[5] Madras High Court WP No. 11525 of 1990 and WA No. 794 of 1992
[6] 1992 Cri W 1712 W & K
[7] (1989) 3 Serv LR 405
[8] 1992 CriLJ 1312
[9] (Civil Rule Nos. 1381/88), delivered on November 15,1991.
[10] WP No. 317 of 1981
[11] AIR 1992 SC 417
[12] AIR 1985 SC 264

The  author can be reached at: divi_jain@legalserviceindia.com