A Brigadier who was sentenced to three years Rigorous Imprisonment (RI) and cashiering from service on charges of adultery has moved the Armed Forces Tribunal (AFT) alleging that he had been convinced to plead guilty to the charges by the presiding officer of the court martial in exchange for a lesser sentence but later his sentence was increased in a “breach of faith”.What Brig Amit Chatterjee failed to anticipate was that, despite assurances by others, higher authority might require the court-martial to reconsider (and increase the severity of) the sentence:
The Brigadier further states [to the AFT] that his advocates were also present when the Presiding Officer reiterated his commitment of awarding a reasonable punishment and said that the same will be approved by the commanders up in the chain. Thereafter he pleaded guilty to all the charges and as per the commitment he was awarded a forfeiture of seniority by 10 years and to be ‘Severely Reprimanded’ in October 2017.How common are pretrial agreements or plea bargains in Indian court-martial practice? Is there a way to ensure that the accused gets what he bargains for? The command power to order reconsideration was a traditional feature of British-inflected military justice systems. The U.S. abandoned it decades ago.
However on December 21, 2017 a revision order was issued by the GOC 33 Corps to revise the sentence awarded by the General Courts Martial following which his sentence was increased to three years RI and cashiering from service.
If higher authorities can insist on reconsideration, is the court-martial independent and impartial, as required by the International Covenant on Civil and Political Rights? Global Military Justice Reform's crystal ball is currently being overhauled, but this does seem like a case that would receive a sympathetic review by the AFT.
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ReplyDeleteThe disposal of case by the method of “plea bargaining” was introduced in the Indian criminal justice system in 2006 and is contained in the Criminal Procedure Code ss. 265A to 165L. The concepts of “plea trial agreements” or “plea bargaining” do not exist in the military legal system in India.
ReplyDeleteThus, it was improper on the part of the presiding officer, as stated in the news report, to have stated that “lesser sentence” would be awarded, if accuse pleaded guilty to charge(s).
In a general court martial, the punishment is decided by independent votes by all the members and the presiding officer has not “final say” in the award of punishment. When the case came for revision before the same court, in which the punishment was enhanced to three years RI and dismissal, clearly indicates that it was influenced by the revision letter of the confirming authority.
A military commander who acts as confirming officer over the court martial has exceptional power in the Indian military legal system, akin to what the British military justice system was in pre-Findlay era.
Wg Cdr (Retd) U C Jha