The Chennai Bench of the Armed Forces Tribunal of India has set aside as grossly disproportionate the dismissal portion of a summary court-martial sentence for a year's AWOL, and substituted a term of rigorous imprisonment in its place, permitting Sapper
Neelam Moyyi to return to duty. The court expressed concern about a false government representation on appeal that the accused had a record of previous disciplinary actions:
[W]e are baffled by the pleadings of the respondents that the applicant was a habitual offender and had various disciplinary cases against him. The respondents, i.e., the Union of India, and the Army being responsible organizations ought not to make such submissions on Affidavit without verifying the records.
Details of the case appear
here. The September 21, 2015 decision of the AFT in
Moyyi v. Union of India can be found
here.
Thanks as always for this update.
ReplyDeleteThe question that equally baffles the reader is whether an illegal absence of over one year in near nine years total service is such a minor offence for 75 days of military custody and continuance in service. The Tribunal had reasons for its agitation when they find the unblemished record in disciplinary proceedings contrary to averment in counter. The actual position is still not known and Tribunal may be right for its annoyance. But the same cannot reflect adversely to maintenance of military discipline. What prohibited the accused to have joined the new unit and obtain regular leave and with due respect even in case of high risk pregnancy of wife, which though permitted him to undertake travel, can a soldier even on extreme compassionate grounds have an argument that he will remain with with his wife for over one year deserting the service. The Tribunal selected Ranjit Thakur judgment to butress its contention while turning a blind eye towards the host of other subsequent judgments where illegal absence by employees even in civil sector has been depreciated by the Supreme Court of India. Overall its is a judicial over reach and compassion flowing from a non legally trained heart.
Such interference and skewed logic erodes faith in a fair appellate process.
ajeenkumark@gmail.com
Wing Cdr U C Jha writes:
ReplyDeleteNot going into the intricacies of this case, the fact remains that two summary forms of court martial in India, i.e., summary general court martial (SGCM) and summary court martial (SCM) have been misused by the military commanders. The SGCM existed in the British military system until 2006 but was rarely convened in the last 25 years. The SGCM consists of three officers with one year of service. The court is not even required to frame a formal charge-sheet against the alleged accused. A judge advocate ‘may’ attend the trial. It can try any person subject to the Army Act for any offence committed under the Act and pass any sentence up to the death.
An SCM is peculiar to the India Army. It may try any person below the rank of Junior Commissioned Officer and can award a punishment of dismissal with one-year imprisonment after a summary trial. An accused cannot challenge his trial by the commanding officer on the ground of bias or personal interest. He is not represented by any counsel or defending officer.
In India, the high courts, the Supreme Court and various benches of Armed Forces Tribunal have criticized trials held under the SCM for awarding excessive and harsh punishments or denying the procedural rights guaranteed under article 14 of the Constitution. Both these ad hoc systems of justice are not followed in other democratic countries and need to be abolished.