A call for reform in India

Global Military Justice Reform contributor Wing Commander (Ret) U C Jha has written another powerful op-ed for Daily News & Analysis. Excerpt:

The Indian Armed Forces are following arbitrary and discriminatory systems of trial in the form of summary general court martial (SGCM) and summary court martial (SCM). The SGCM is prevalent in the Army and in the Air Force, and the SCM in the Army alone.

These systems of trial were envisaged by the British government to govern illiterate native soldiers recruited from villages. Post-mutiny, when a new Indian Army came to be organised on the ruins of the old one, it was realised that the hands of the British commanding officer (CO) would have to be strengthened if the ‘evils’ which had led to the near-disappearance of the Bengal Army were to be avoided. With this objective in mind, the SGCM/SCM was established as part of the legal machinery of the Indian Army. The British Indian Army Act of 1911 contains these provisions and continues to govern Indian soldiers.

In the SGCM, any individual subject to the Army/Air Force Act can be tried by three lay officers, who can unanimously award punishment up to death. The most senior member of the SGCM should be senior in rank to the accused, while the other officers should have one year of commissioned service. The officer convening the SGCM can do away with a formal charge sheet and the statement of offence can be made briefly to disclose an offence under the Act. In the case of the SCM, the CO alone constitutes the court and acts as judge as well as prosecutor. He can try an accused up to the rank of havildar. The proceedings are attended by two others, who may be officers or junior commissioned officers. They are not supposed to take any part in the proceedings and have no right to vote in determining either the findings or the sentence.

The accused has no right to defend himself through any military or civilian counsel. There is no need for a detailed judgement or even a discussion on the evidence. An accused cannot claim that he should be governed by the principles of natural justice which apply to a civil servant under Article 311 of the Constitution. The unbridled discretionary power of a CO to hold trial under SGCM/SCM is violative of Article 14.

Many countries retain summary trial procedures for their armed forces, but they confine their use to minor disciplinary offenses, permit only limited punishments, and provide a modicum of procedural protections. It would seem that India has some catching up to do.