Judicial review of summary punishments is a recurring issue. Non-judicial punishments under Article 15, UCMJ, are excluded, for example, from the jurisdiction of the U.S. Court of Appeals for the Armed Forces, United States v. Gammons, 51 M.J. 169, 175 (C.A.A.F. 1999); United States v. Edwards, 46 M.J. 41, 43 (C.A.A.F. 1997), although they are reviewable by the service boards for correction of military and naval records and in the Court of Federal Claims and federal district courts.
The 2019 Yale Draft Principles for Military Summary Proceedings stated in Principle 14:
Summary proceedings resulting in the imposition of a punishment shall be subject to appeal or review by a tribunal or higher military authority in a fair process prescribed by national law. Nothing in this principle affects the right of a member of the armed forces to seek judicial review of a decision by a military authority to the extent permitted by national law. [Footnote omitted.]
As noted in the post, the implication of this decision is that summary punishment would have to be challenged in the high court instead of the Armed Forces Tribunal (AFT). This emanates from an anomaly in the AFT Act itself and means that smaller punishments will be challenged in the high court which is a higher Constitutional Court while bigger punishments can be challenged in the AFT which is merely a statutory tribunal and lower in hierarchy than the high court. The govt is unlikely to resolve this anomaly and this situation would continue until the high court or the supreme court reads down or strikes down the offending provision.
ReplyDelete1. Under the Army Act, 1950, the military commanders at various levels are empowered to award minor punishments summarily to the officers and personnel below the officer rank (PBORs). The Armed Forces Tribunal (AFT) is not empowered to entertain any petition against the award of minor punishments like forfeiture of seniority, severe reprimand awarded to the officers and JCOs; or imprisonment/detention up to 42 days, besides other punishment like pay fine up to 14 days of pay, severe reprimand, etc, to PBOR (or equivalent rank in the Air Force or Navy). The only exception is the award of ‘dismissal’ through a summary trial under the Navy Act, 1957, where an affected person can approach the Tribunal [AFT Act, 2007, Section 3 (o) (iii) referes].
ReplyDelete2. In such cases, the aggrieved persons can make a grievance petition to the higher military authorities, where no hearing is allowed; or can seek remedy through the writ jurisdiction of the high courts, which is contrary to the aims and objectives of the Tribunal.
3. Let me clarify the issue. When the AFT Bill (No. CXXIX) was introduced for the first time in Parliament in 2005, term ‘service matter’ as defined in s. 3(o) included summary disposal and trial, but excluded (i) termination of service by the President and, (ii) transfers and posting. In this Bill summary disposals and trial were included in the definition of service matter and AFT had jurisdiction over them.
4. In 2007, a new Bill was introduced (No. CXXIX-F), where service matter was redefined and excluded (i) termination of service by the President (ii) transfers and posting (iii) leave of any kind, and (iv) summary court martial, except where the punishment is of dismissal or imprisonment for more than three month. In this Bill the term “summary disposal and trial”, which was under the jurisdiction of the AFT was qualified by the term “where punishment of dismissal is awarded”. This punishment can be awarded only under the Navy Act by the CO while on ship. Therefore, in the new Bill, all summary punishments which can be awarded under the three service Acts by the Commanding Officers or senior officers were excluded from the jurisdiction of the AFT. Only remedy for such punishments is to invoke Writ jurisdiction of the High Courts.
5. Earlier, the AFT in the cases of Sgt Tek Chand Sharma v. Union of India, decided on 19 February 2010 and Maj Manmohan Singh Battu v. Union of India decided on 6 April 2010, dismissed the petitions where the applicants were awarded minor punishment. In my view interpretation of the AFT Act by Allahabad High Court in Major Kunwar Ambreshwar Singh v. Union of India [2015 (3) SLR 595], was erroneous.
6. I fully agree with comments of Maj Navdeep. There is a serious shortcoming in the AFT Act, which needs to be rectified.
U. C. Jha
Wg Cdr (Retd)
Many thanks to Maj Navdeep Singh and WCdr UC Jha for the informative post and comment, respectively.
ReplyDelete