|Lt Gen (ret) H S Panag
Indian jurisprudence is characterised by separation of powers and we acceded to the International [Covenant on] Civil and Political Rights in 1979 which promises an independent and impartial trial to every citizen. The decision of the SC provides a great opportunity to the military for reform – to expand its legal cadre and adjust its practices with the thorough fairness that is expected of it.
It has been my experience both in service and as a member of the Armed Forces Tribunal, that while conducting majority of the SCMs, existing procedures, as given in the Army Act 1950, were given short shrift leading to miscarriage of justice. The higher headquarters rarely intervened to correct the same in the "interests of the organisation". More often than not, the proceedings were set aside by High Courts and the Armed Forces Tribunal. The provision of SCM should be used as an exception and not as a rule and the reasons for doing so should be on record. The Army Act 1950 should be suitably amended and further detailed guidelines should be issued by the Adjutant General's Branch, Army Headquarters.
The Delhi High Court had once opined that “in order to obtain discipline and obedience, it is essential that the Armed Forces personnel are dealt with an innate fairness”. The Supreme Court had recorded that “fair play and justice cannot always be sacrificed at the altar of military discipline”. These wise words should forever ring true, and the Army, being the beacon of rectitude, must go out of its way to ensure that it spurns rigidity and rather imbibes a system worth emulation by other institutions in every sense of the word.H/T to Global Military Justice Reform contributor Maj (ret) Navdeep Singh for the link.