Summary court martials scuttle fair trials for Armed Forces

The Indian Armed Forces are following arbitrary and discriminatory systems of trial in the form of summary general court martial (SGCM) and summary court martial (SCM). The SGCM is prevalent in the Army and in the Air Force, and the SCM in the Army alone.

These systems of trial were envisaged by the British government to govern illiterate native soldiers recruited from villages. Post-mutiny, when a new Indian Army came to be organised on the ruins of the old one, it was realised that the hands of the British commanding officer (CO) would have to be strengthened if the ‘evils’ which had led to the near-disappearance of the Bengal Army were to be avoided. With this objective in mind, the SGCM/SCM was established as part of the legal machinery of the Indian Army. The British Indian Army Act of 1911 contains these provisions and continues to govern Indian soldiers.

In the SGCM, any individual subject to the Army/Air Force Act can be tried by three lay officers, who can unanimously award punishment up to death. The most senior member of the SGCM should be senior in rank to the accused, while the other officers should have one year of commissioned service. The officer convening the SGCM can do away with a formal charge sheet and the statement of offence can be made briefly to disclose an offence under the Act. In the case of the SCM, the CO alone constitutes the court and acts as judge as well as prosecutor. He can try an accused up to the rank of havildar. The proceedings are attended by two others, who may be officers or junior commissioned officers. They are not supposed to take any part in the proceedings and have no right to vote in determining either the findings or the sentence.

The accused has no right to defend himself through any military or civilian counsel. There is no need for a detailed judgement or even a discussion on the evidence. An accused cannot claim that he should be governed by the principles of natural justice which apply to a civil servant under Article 311 of the Constitution. The unbridled discretionary power of a CO to hold trial under SGCM/SCM is violative of Article 14.

The following example shows how the military mindset has not changed since Independence. Rule 12 of the Rules of Procedure made under the Indian Articles of War (1869) contained a provision relating to SCM. It reads:  “The discipline of the native army depends in great measure on the SCM. When a soldier amenable to the Indian Articles of War has committed an offence which is ordinarily tried by SCM, CO, when determining by what court the prisoner to be tried, are to bear in mind that the legislature, in conferring upon them the powers of SCM, intends that they shall exercise these powers.” This provision has been reproduced as Para 447 under the 1987 Regulations for the Army substituting words “soldier amenable to the Indian Articles of War” with “a person subject to the Army Act”.

The Supreme Court has often criticised these systems of trial as being arbitrary, awarding excessive and harsh punishments, and denying procedural rights guaranteed under the Constitution. The Court rightly commented in Lt. Col. PPS Bedi (1982): “The reluctance of the apex court, which is more concerned with civil law, to interfere with the internal affairs of the Armed Forces is likely to create a distorted picture in the minds of the military personnel that the persons subject to the armed forces are not citizens of India.”

The military hierarchy in India is reluctant to do away with these systems of trial, presumably on the grounds that they are needed to strengthen the hands of CO. This is a wrong presumption. Soldiers are no longer illiterate peasants hailing from remote areas. A number of people in the ranks are graduates or post-graduates. In fact, there would be several families in which one sibling is an officer and the other in the ranks.

The Indian Army has extensively used the summary systems of court martial, depriving many of their livelihood, freedom and pension on the pretext of discipline. No other democratic country follows such an arbitrary system of justice. The military justice systems of the UK, US, Australia, Israel, China, Russia, Canada and South Africa do not have such provisions.

There is a need to scrutinise the governance and justice delivery system of the Armed Forces in the light of the broadened perspective of discipline and command. All Indians, including soldiers, should have the “right to a fair trial”, which is contained also in the international documents ratified by India. While the government has recently done away with several colonial-era legislations, surprisingly, no efforts have been made to modernise antiquated military laws.

The author is a retired Wing Commander. Views expressed are personal