Thursday, April 6, 2017

To the rear, march

Lt Gen (R) Harwant Singh
Former Deputy Chief of Staff
Retired Indian Army Lieut. Gen. Harwant Singh, no stranger to controversy, has written this unfortunate essay on military justice. In his view, the flow of cases into the civilian courts for judicial review (only a few of which concern disciplinary matters) is a mistake, and that the real problem is the requirement that courts-martial must render an explanation of their decisions, a process that is slowed down by the fact that the speaking order is prepared by the advisory judge advocate. He writes:
Now a commanding officer who alone holds SCM, is a father figure in a unit and it is only in a very rare case, where inaction in initiating SCM against the offender can lead to spread of ill discipline in the unit, that he takes recourse to holding SCM. If he is to record in writing the reasons for holding an SCM, the reasons thus recorded cannot be adequately appreciated by a civil court, detached, in time and circumstances, as it would be, from the then prevailing conditions in the unit, and therefore, cannot objectively access the award of a SCM. A commanding officer is entrusted with the safety and lives of thousand men and yet called upon to justify an SCM of an erring soldier!
It seems the author would do away with the speaking order requirement and continue regular resort to summary courts-martial (which the Supreme Court of India recently ruled were to be used only exceptionally) on the notion that they are fast and the commanding officer is a father figure for the unit. He says India shed its colonial military justice heritage by enacting the Army Act 1950.

Someone might want to talk with Gen. Singh about the evolution around the world in military justice over the last several decades, and suggest to him that India might do well to catch up by such means as establishing a proper trial judiciary.

1 comment:

  1. Unfortunately, as claimed by the officer in his write up, no substantial changes were made in the military legal system when they were adopted in 1950 for the Army and the Air Force; and in 1957 for the Navy. The changes in 1992 were made in the Army Act as it was found that court martial functioning under the command influence could give any verdict without giving any reasons for it. Even after this change, court martial are required to give only ‘brief’ reasons in support of findings [see Army Rule 62(1)]. Another change (in Army Rule 22) was made at the instance of military that a commanding officer may deny right to an accused to cross-examine witnesses against him during a charge trial; if the charge was an outcome of a matter investigated earlier where the affected person had cross-examined the witness. This provision is in fact against fundamental principle of natural justice.
    Summary court martial powers in India are unique. A commanding officer of the rank of Lt Col could dismiss an NCO (who may have up to 20 years of service) and also send him for one year of imprisonment, without giving any reasons. In fact even recoding of evidence is not necessary in case of a summary court martial. Some of these trials have been completed in just 5-10 minutes. The Supreme Court has rightly held that SCM must be held only in rare and exceptional circumstances, with reasons for the immediacy of action recorded in writing.
    The author is also wrong when he states the “one member on the GCM is from the same branch of the army as the accused”. What happen in case of a court martial of person below officer rank? The author must read recent developments in international human rights law and military justice systems world over. Our generals must stop chanting that “ours-is-a-time-tested-system”.
    Wg Cdr U C Jha (Retd)


Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).