Wednesday, September 17, 2014

Supreme Court of India faults inadequate punishments of military personnel

The Times of India reports on a lively argument at the Supreme Court of India in a pending public interest litigation (PIL) questioning inadequate punishments that had been meted out to Army officers found to have trafficked in weapons.
Attorney general Mukul Rohatgi argued that the conviction of 71 officers and junior commissioned officers (JCOs) itself was a blot on their careers, spoiling any chance of promotion in addition to carrying the stigma of conviction for their life. So they should not be again subjected to a fresh trial under general court martial or court of inquiry. 
He said the GCM and CoI [Court of Inquiry] proceedings and punishments awarded to them in 2011 had become final and it could not be reopened without breaching the officers' rights against double jeopardy under Article 20 of the Constitution and similar protection under the Criminal Procedure Code and the Army Act. 
He said these proceedings were not challenged in any court for inadequacy of punishment and the apex court was legally barred from reopening the process on the basis of a PIL filed by advocate Arvind Kumar Sharma, who had in 2007 brought to the court's notice illegal gunrunning in Rajasthan involving Army officers, leading to GCM and CoI proceedings in 2011.
The Attorney General reported that he would consult with Army leadership and report back in a month's time.

To the extent that some of the officers may have been subject to nonjudicial or summary punishment, double jeopardy would presumably not be a bar to formal court-martial proceedings (unless of course the statute of limitations had expired in the interim), as is the case under United States law. But certainly for those who were convicted by court-martial, the notion that a stranger could persuade a higher court to reopen the matter with a view to further proceedings and stiffer penalties is startling. Perhaps a reader versed in the arcana of Indian double jeopardy jurisprudence can clarify matters for us.

Comparative law note: in Israel, the Supreme Court has on rare occasion intervened where the Military Advocate General (MAG) has either pursued charges that were blatantly inadequate on the facts of the case or, in at least one instance, has instructed the MAG to take to court-martial a case that, as a matter of favoritism, had been disposed of by summary trial. Is the Indian court moving in that direction?

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