Summary courts-martial and natural justice

The Indian Supreme Court in its decision of 10 December 2018 has quashed the summary court martial proceedings on the grounds that the accused was not allowed the services of a civilian lawyer.

The Court held, “In the present case, the accused had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense. For these reasons, we are of the view that there was a clear violation of the principles of natural justice.” The Court, has clarified, “ … we have interfered with the order only on the ground of a violation of the principles of natural justice. It would be open to the Respondents (Union of India) to take further steps as may be permissible in accordance with law.”

In a trial by summary court martial, an accused is allowed services of a “Friend” to defend his case under the Army Rules 129. It states: “Friend of accused—In any summary court martial, an accused person may have a person to assist him during the trial, whether a legal adviser or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross examine witnesses or address the court.”

Under Regulations for the Army paragraph 479, when a person subject to Act is being tried for an offence punishable with death (only general or summary general court martial have such power) and the accused cannot engage a counsel for his defence owing to lack of pecuniary resources, the convening authority may provide a defence counsel at the government expenses.

The practice in the Indian Army is that the accused is allowed service of an officer or other rank as “Friend” from the same unit where summary court martial is being held. Such officer/other rank have practically no role, because the trial is held by the commanding officer. Summary court martial is Colonial Era provision still followed by the Indian Army. There have been numerous decisions of the higher courts in India where the trial by a summary court martial has been held arbitrary denying basic rights to a fair trial to an accused.

The decision of the Supreme Court can be found here:

https://www.sci.gov.in/supremecourt/2013/41081/41081_2013_Judgement_10-Dec-2018.pdf.