In an important judgment on military justice, the Supreme Court has declared that the Army’s system of Summary Court Martial (SCM), with its roots in the 1857 Mutiny, is an exceptional provision and not a rule.
Adjudicating appeals emanating from conflicting high court decisions, though the Apex Court has held that in certain circumstances an accused can be tried by the Commanding Officer of a unit to which he was attached and not necessarily his own Commanding Officer, the SC has held that it fully endorses and affirms the view of the Delhi HC that SCM is an exception.
A bench of Chief Justice of India TS Thakur and Justice UU Lalit has said that it is imperative that to conduct the SCM a case must be made out for immediacy of action with recorded reasons. Senior Advocates Jyoti Singh and Arun Mohan had assisted the SC as amicus curiae.
The Apex Court has also endorsed the view of a Committee of Experts constituted by the defence minister to look into military litigation, wherein it had opined that SCM was an exceptional provision not meant for peace-time or regular recourse and it is desirable to replace it with a more robust system meeting Constitutional norms. The SC has held that the recommendations of the Committee sum up the approach to be adopted quite well.
In the judgment under challenge, the Delhi HC had held that the origin of SCM could be traced to the 1857 Mutiny for “prompt and swift award of punishment to indisciplined Sepoy malefactors.” The HC had further held that SCM was meant for extraordinary situations and routine recourse would result in taking away “Sepoys’ livelihood without affording them the normal procedural protections of law.” It had also held that SCM should not be held in cases with civil law ramifications.
The Committee of Experts comprising former Adjutant General Lt Gen Mukesh Sabharwal, former Military Secretary Lt Gen Richard Khare, Punjab and Haryana High Court Lawyer Maj Navdeep Singh, former Judge Advocate General Maj Gen T Parshad and Kargil disabled veteran Maj DP Singh had recorded in their report that a provision with such drastic powers did not exist in any other democracy or even in the Indian Navy and Air Force.
It was stated that SCM did not meet the basic fundamentals of a trial or separation of powers or the International Covenant of Civil and Political rights and the CO performed the dual role of a prosecutor and judge without a public hearing and without even the availability of a counsel or an officer of the Judge Advocate General’s department and even a judgement or reasons for decision were not spelt out.
The Committee had held that though the requirement of discipline in the military could not be underestimated, SCM should be used sparingly and only in operational areas where a regular trial was not practicable and administrative action would not meet the immediate requirement of discipline.