(Note: This piece was posted today at Medium and is a bit longer than usual)
Not many in India would have heard about a young British
soldier called Private Harry Farr.
Not many would also have heard about the ‘shot at dawn’ memorial at
Staffordshire in the United Kingdom.
The memorial is a tribute to 309 British and Commonwealth
soldiers who were court martialled and shot during World War I primarily for
offences of cowardice and desertion. Young Harry Farr was one of them. This
battle hardened soldier fought bravely for the British in the First Great War.
His trench was shelled and he sustained a disability due to which he was
repeatedly admitted in hospital. At one stage he was refused admission in a
medical establishment on the pretext that he was not ‘physically wounded’. He
was suffering from ‘shell shock’ or what is now known as Post Traumatic Stress
Syndrome (PTSD).
Private Farr, in a fragile frame of mind, went missing
for three hours, and when located, was arrested and arraigned before a Court
Martial, which, after a mere twenty minutes of trial, awarded the punishment of
death by a firing squad.
The family fought a long war for justice when documents
were discovered that despite his medical condition the young soldier had been
forcibly sent to the front. The family could not meet success even at the High
Court. Despite being refused positive judicial intervention, the United
Kingdom, in 2007, granted a posthumous pardon to Private Farr thereby restoring
the family’s honour. And with him, due to lack of individual evidence, a total
of 306 soldiers executed that dawn were pardoned, providing them the benefit of
doubt.
Then is the story of Lieutenant Henry O Flipper of the United States Army. Lt
Flipper, born a slave, was the first African-American cadet at West Point to
have graduated and commissioned in the US Army. As a military engineer, he was
the inventor of the ‘Flipper’s Ditch’, a drainage system for malaria infested
swamps, which is still used. Lt Flipper was accused of embezzlement and Court
Martialled. He was found ‘not guilty’ of embezzlement but convicted for
‘conduct unbecoming of an officer’ for not having informed his Commanding
Officer about some missing funds in his unit, and dismissed from service in the
year 1881. Post his dismissal, Lt Flipper built up a successful career also
recognized by the Government which appointed him at high offices.
Interestingly, despite having been dismissed from service, West Point
instituted an award in his name and placed his bust in the academy. Perusal of
documents of the conviction pointed out the bias in his trial. It was long
thought that his dismissal was the result of an inherent resentment towards
African-Americans at the time. It was also discovered that the then Judge
Advocate General of the Army wrote a detailed note to the President stating
that his dismissal was unwarranted but it was never put up to the President and
his dismissal was approved through a one-line non-speaking order. While
reviewing the documents and showing moral courage of impeccable nature, the US
Army in the year 1976 opined that his conviction was unjust but also stated
that it had no power to overturn it, however his dismissal was converted into
‘honourable discharge’ which was permissible with the powers of the Army. In
1999, fully restoring the honour of the first officer of colour commissioned
into the United States Army, the then President, William J Clinton, granted a
full and unconditional pardon to Lt Flipper.
It’s ironic that the basic provisions of Courts Martial,
especially Summary Courts Martial, practiced by the British during World War I,
remain the same as on date under the Indian statute except cosmetic changes.
The only real changes in how the provisions are effectuated have been forced
upon the system due to judicial intervention primarily by the High Courts and
the Supreme Court over the years. Though it is also totally agreeable that
today’s military hierarchy is much more sensitive towards injustice or
miscarriage of justice than the rank and file of the yesteryears. There was a
time when the Courts could not even go into the appreciation of evidence of
Courts Martial, something which was altered much later in the year 2009 with
the inception of the Armed Forces Tribunal.
Why
do I write this.
Why I am writing this here today is that due to the
primitive nature of military justice being practiced in our country in the
past, there are glaring instances of injustice and miscarriage of justice that
have come to light years later, some due to a closer analysis in hindsight.
Some are such which appear so nonsensical that these would not seem compatible
with any of the values professed by our great military which is the pride of the
nation. Many affected fought it out and succeeded, but some lost judicially and
yet others did not even try. Some died without closure, some are living and
looking for closure, and interestingly, under the Indian law, setting things
right, even after a judicial verdict to the contrary, is not a far-fetched idea
and is in fact provided by the statute, thereby triggering my urge to write
this today.
Two glaring examples come to my mind:
The
Samba Spy Case
Much has been written about this case popularly known as
the Samba Spy Scandal. Many books have also been penned. Many of those
affected have exhausted their legal remedies as per law and the judgment
rendered in their favour by the Delhi High Court was ultimately overturned by
the Supreme Court on an appeal filed by the Union of India. There is, hence, no
judicial remedy remaining. But other doors are still not closed, as I would
explain a little later. Coming back to the case, de hors the fact
that they were unable to secure a final decision in their favour, there are
some extremely jarring notes that would move even an untrained non-legal eye-
All
accused were implicated essentially on just the statements of two spies, that
is, Sarwan Das and Aya Singh and an officer of the rank of Captain who
implicated (by his statements) about 52 personnel including, hold your breath,
an officer of the Judge Advocate General’s department. The two spies were
initially arrested in 1975 but they apparently named others in 1978. The said
Captain clearly stated in his cross examination that he had been badly tortured
to elicit his statements.
The
entire case was built up on the premise of the statement of Aya Singh that one
Capt Nagial was the initiator and had visited Pakistan in the year 1974. The
charge was later established to be false and Capt Nagial was acquitted of the
same by a Court Martial but implicated and convicted in some other case. When
the foundation itself was faulty, there was no reason for proceeding in the
matter.
Around
40 to 50 personnel and officers were finally accused of spying for Pakistan.
All of them were from the same location of a Brigade based in Samba, a small
town. Is it possible for such a large number of people being involved in spying
for Pakistan from such a small station?
Statements
were obtained from another Havildar, called Ram Swarup, who died of injuries
after interrogation. The case was built up on confessional statements but there
were large-scale allegations of torture.
Aya
Singh, the kingpin on whose statements the case had progressed, was apparently
killed later while crossing the Indo-Pak border. Could a person with such
credentials be considered a reliable witness and could his statements be relied
upon to implicate such a higher number of personnel located in a small town?
When
no evidence was found by Court Martial against some personnel, their services
were administratively terminated.
It
is understood that a report was sought by the then Prime Minister from civilian
agencies which established that the large-scale implications were no true.
Swaran
Dass later made an open statement under oath that he had implicated innocent
personnel after being tortured. The statement, made in 1994, was widely covered
in the media as
were other aspects of the case.
The above points do shake the very foundation of
allegations of a large-scale conspiracy. On the face of it, something
drastically went wrong somewhere but the wheels were not turned back to avoid
criticism.
The
curious case of Brig Pritam Singh
In one of his recent articles, Lieutenant General HS Panag,
the former General Officer Commanding of Indian Army’s Northern Command,
provided an interesting insight into the travesty faced by Brigadier Pritam
Singh, known as ‘Sher Bachha’ (Son of a Tiger) on account of his stellar
contribution to the battle of Poonch in 1947. Wounded in World War II, Brig
Singh was also awarded the Military Cross after he escaped a Prisoners of War
Camp. For one year, Brig Singh, then a Lt Col, resisted all the might of the
enemy and ensured the retention of Poonch with India. He was promoted to the
rank of Brigadier immediately thereafter (as per the system in vogue, officers
were promoted directly from Battalion Commanders in the rank of Lt Col as
Brigade Commanders in the rank of Brig). Though his contribution is legendary
and he was again wounded in the Poonch operations, which area would have had a
different history but for the valiant officer and his resolve, this piece is
not about his military prowess. Brig Singh, in 1951, was dismissed from service
by way of a Court Martial for misappropriating a sum of about Rupees Ten
Thousand and a carpet. Other charges were also put into motion, but all
collapsed. The carpet was meant as a present for the Air Force from the Raja of
Poonch but it was alleged that Brig Singh had stolen the carpet for his own
use. Despite the testimony of the Raja that it was indeed a gift from him to
the Air Force which was being transported by Brig (then Lt Col) Singh’s
battalion, the Court Martial went ahead and convicted him without even
examining any evidence or witness in his presence as mandated by law. The
allegation of misappropriation was with regard to excessive amount drawn than
the actual expenditure and the time when the offence had supposedly occurred
was a period when Brig Singh was admitted in a hospital after being wounded in
war. Failing to pin him down on corruption charges, the Court Martial managed
to convict him primarily on procedural lapses. It was well known during those
times that many of his peers were envious of the trajectory of his career and
the accolades he had achieved and the word amongst the military masses was that
the entire episode was a result of this jealousy to stop his ascent.
Those times were strange. Punishments handed down by the
military were not questioned. Courts were loath in entertaining petitions
against military authorities and individuals were not aware of their rights.
The direct result was that many injustices went unchallenged and this too,
perhaps, was one in that list.
Bigadier Pritam Singh died in Punjab, unsung.
Restoring
the Clock.
However, there is still a chance of redemption, but not
by way of judicial remedy since the same is closed in the Samba Spy Case and
barred by limitation in Brig Pritam Singh’s case. The fact that many of those
who were affected are no more living makes the situation even more complicated.
Though invocation of judicial remedy is not possible, the
Central Government still can very much undo the harm caused to the very concept
of justice in such cases. Section 165 of the Army Act empowers the Government
to annul any proceeding of any Court Martial on account of being illegal or
unjust. This power is unfettered and it does not matter whether a person has
exhausted his or her legal remedies or not, and with what result. If, based on
the material available, the Government comes to the conclusion that the Court
Martial was not just, it can annul the entire proceedings and restore the
honour to those who were treated unjustly. In cases of those whose services
were terminated or Presidential Pleasure withdrawn, the same, being merely an
administrative non-judicial act, can always be reversed by the same authority
which had passed the orders of punishment in the first place.
The remedies that I speak of above are not ordinary and
are meant for extraordinary situations. However, keeping in view the fact that
the systems of military justice in the yesteryears were primitive and there is
a possibility of innocents having been meted out unjust punishments, it would
only be right, with due diligence, to explore this exercise with full moral
courage for restoring their honour.
We need our own version of Private Farr and Lieutenant
Flipper here. Though there is bound to be resistance in such cases citing wrong
precedents being set, a hackneyed and regularly exercised excuse, a strong
political will can make it happen. Besides, setting aside of unjust actions is
not a new phenomenon and that is the very reason such rules exist to undo
miscarriage of justice. If ‘precedents’ are to be given so much undue emphasis,
then the mere existence of those provisions in the statute book becomes
superfluous and infructuous.
Will we have our Farr and Flipper moment in India?
Time will tell.
