Summary court-martial: British legacy in the Indian military legal system

Summary courts-martial were a part of post-1857 mutiny reforms in India. It never existed under the British military legal system. Historically, they owe their origin to the Punjab Irregular Forces which came into prominence after the 1857 mutiny. It was found that the Punjab Irregular Forces, which were under the Local Government, were far more disciplined as compared to the regular forces. The Irregular Forces, created in 1851 to protect the NW frontier of British India, were not under the Commander-in-Chief and were also not subject to Native military law in the British India. The reason for this was traced to the paramount position secured to commanding officers who were allowed to deal promptly and directly with military offenders and enforce discipline among the troops commanded by them. Such officers often held drum-head court-martial and passed sentences and inflicted punishments on them in the way in which a general officer commanding in the field across the frontier exercised extraordinary powers (under military commissions) over persons who were not amenable to military law. The system was associated with the name of Colonel Coke, who, while Deputy Commissioner of Kohat, raised and commanded the 55th Coke’s Rifles. It had come into existence through the then frequent union on the frontier of the functions of Deputy Commissioner, Political Officer, and Military Commandant in the same person. The combination of power enabled the commanding officer to award the punishment to a military offender and thereafter to issue a warrant for the execution of the sentence which was respected by the civil and prison officials as emanating from him in his civil and magisterial capacity.

It was realized during the post-Mutiny reforms that to strengthen the hands of commanding officers, similar summary powers must be given to them to discipline the Native regular forces. With this object summary powers were first introduced by Act No. VI of 1860 and continued under Articles 81 and 82 of the Act XXIX of 1861. In these two Acts, it was stated that a trial under these Articles shall be deemed a Court Martial and the words “court martial” in the Articles of War shall be deemed to include a commanding officer/detachment commander holding a trial. The term summary court-martial was formerly used under Article 72 of the Act of 1869. The Indian Articles of War (Amendment) Act XII of 1894, categorized the summary and summary general court-martial as “extra-ordinary courts-martial,” while general, district and regimental courts-martial were termed as “ordinary court-martial.” 

 The Act No. VI of 1860, increased the power of Regimental Commanding Officers to punish Native Non-commissioned officers and soldiers by amending Articles 78 and 112 of Act XIX of 1847 (Articles of War for the Native Army). A Commanding Officer holding a trial under the Act was deemed a Court-Martial who could summarily try all offences against the Articles of War committed by any person subject to those Articles and sentence such offender on conviction up to one year of imprisonment and dismissal from the service. The summary proceedings were to be conducted by Commanding Officer in the presence of two or more European or Native Commissioned Officers. However, the Native Commissioned Officers were always detailed for this. The reason for this has been explained in Rule 41 of the Rules of Procedure (Native Army) for the guidance of courts-martial held under the Articles of War (Act V 1869) as follows:

 

The officers attending the trial do not give any opinion as to the finding or sentence. They are as a rule native officers, and their duty is to help the commanding officer, who refers to them any point of native custom on which he might be doubtful, and on which from their nationality and position they would be able to give him reliable information, e. g., in a case of using insubordinate language to a non-commissioned officer, he might enquire from them whether any particular phrase used, though seeming on the surface unobjectionable, bears an offensive or opprobrious meaning in the vernacular.

 The proceedings were recorded in the English language, and the evidence was to be taken on oath or affirmation and interpreted by a competent interpreter upon solemn affirmation. After the Commanding Officer has recorded the finding and sentence, the proceedings were to be signed by such Commanding Officer and by the officers in whose presence the trial was held. The proceedings, without delay, were to be forwarded to the General Officer Commanding the Division for review, who was authorized to set aside the trial for reasons based on the merit of the case but not of a merely technical nature. The sentence so awarded by the Commanding Officer could be carried out without waiting for its approval by the reviewing officer.

This procedure was named “summary court-martial” under Article 72 of the Act V of 1869. The provisions relating to a summary court-martial in the Act were similar to those contained under the Act V of 1861. The Commanding officer could try any offence contained in the Articles of War, except mutiny, and award punishment. However, when there was no emergent reason for immediate action, and reference could, without detriment to discipline, be made to superior military authority, a Commanding Officer could not try by summary court-martial, without such reference, the offences (i) where maximum prescribed punishment was death; (ii) relating to embezzlement and military property etc., (Articles 54, 55, 56, 60, 61 and 64); and (iii) offences against such Commanding Officer. In case the officer holding a summary court martial had less than five years standing, he could not carry into effect any sentence by such court martial until it has received the approval of the nearest superior Military Officer holding command of not less than a regiment.

 

Under Article 94 of the Act of 1869, a summary court-martial held by any Officer Commanding a regiment or corps could award any sentence not exceeding that awardable by a district court martial. These were: (i) Imprisonment (with or without hard labour, and with or without solitary confinement) for a term not exceeding one year, (ii) Dismissal from the service, (iii) Suspension from rank, pay and, allowances, (iv) Degradation, (v) Loss of standing, (vi) Reduction to the ranks, (vii) Corporal punishment not exceeding fifty lashes, (viii) Forfeiture of additional pay, good-conduct pay and claim to pension, (ix) Forfeiture of arrears of pay and allowances, and (x) Stoppages.

A summary court-martial held by any CO other than the Officer Commanding a regiment or corps could award any sentence not exceeding that awardable by a Regimental or Detachment Court Martial. These were as follows: (i) Dismissal, (ii) Loss of standing, (iii) Reduction to the ranks, (iv) Imprisonment (with or without hard labour and with or without solitary confinement) for a term not exceeding six months, (v) Corporal punishment not exceeding fifty lashes, (vi) Forfeiture of arrears of pay and allowances, and (vii) Stoppages. There were no changes in the procedure followed by a summary court-martial as prescribed under Act XXIX of 1861. The power to hold a summary court-martial was not available to a Native Commissioned Officer, even if he was commanding a detachment. It was exclusively meant for a British commanding officer.

 

There are no substantial changes in the procedure and power of punishment awarded by summary court-martial as contained in the Act of 1869 and the Army Act, of 1950. Under section 116 of the Army Act, 1950, a summary court-martial may be held by the commanding officer of any corps, department or detachment of the regular Army to which the accused belongs or is attached. The commanding officer alone constitutes the court. The proceedings of the summary court-martial are attended throughout by two other persons who are officers or junior commissioned officers or one of either. They are, however, not to be sworn or affirmed, nor take any part in the proceedings and have no right to vote in finding and sentence. An accused can challenge his trial by the presiding officer/any member of the general, district or summary general court-martial on the ground of bias or personal interest; however, no such right to challenge is available in a summary court-martial.

 A summary court-martial can try only non-commissioned officers and soldiers in the Army. When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court-martial or on active service, a summary general court-martial for the trial of the alleged offender, an officer holding a summary court-martial shall not try without such reference any offence punishable under any of the sections 34 (offences against enemy and punishable with death), 37 (mutiny), and 69 (a civil offence), or any offence against the officer holding the court. A summary court-martial may pass any sentence which may be pass following sentences: (i) Imprisonment up to one year; (ii) dismissal from the service; (iii)  reduction to the ranks or to a lower rank or grade, in the case of non-commissioned officers; (iv) forfeiture of seniority of rank; (v) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (vi) severe reprimand or reprimand, in the case of non-commissioned officers; (vii) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service; (viii) forfeiture in the case of a person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal; and (ix) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good. In case the officer commanding holding summary court-martial is below the rank of lieutenant-colonel, he cannot award imprisonment for more than three months.

Rule 12 contained in the Rules of Procedure (Native) Army, 1869 provided:

 

The discipline of the Native army depends in great measure on the summary court-martial. When a soldier or other native amenable to the Indian Articles of war has committed an offence which is ordinarily triable by a summary court-martial, commanding officers, when determining by what court the prisoner is to be tried, are to bear in mind that the legislature, in conferring upon them the powers of a summary court-martial, intends that they shall exercise these powers.

The above provision now appears under para 447 of the Regulations for the Army (1987) in the following form:

 

Summary Courts-Martial: When a person subject to the Army Act has committed an offence which can be tried by summary court-martial, officers commanding units when determining by what court the accused will be tried, will bear in mind that the legislature, in conferring upon them the powers of summary court-martial, intends that they will exercise these powers.

The summary court-martial might have been considered valuable by the British to discipline the native army, whose members were considered lesser human beings as compared to British and other European citizens. The rules for the court limited that only native non-commissioned officers and soldiers could be brought before the court, the offences that may be tried by such a court. The native army person could be removed from the service by imposing a sentence of imprisonment for one year and dismissal from the service including forfeiture of pension and arrears of pay. These provisions were continued in the Indian Army Act, 1911 to facilitate the trial of native troops by British commanding officers. Even today, summary courts martials are being used extensively, depriving a large number of army personnel of their livelihood and freedom.

 In summary court martial, an accused is not given any defending officer or civilian lawyer for his defence. The accused [Army Rule 129] is entitled to have the services of a ‘friend’ who may be any person whose services the accused may be able to procure. He can only advise the accused on all points and suggest questions to be put to the witnesses and is not permitted to examine or cross-examine the witnesses or address the court.  Take the recent case of a sepoy of the Army who was denied the legitimate services of a lawyer as his “friend” during a summary court-martial, and had to knock at the doors of the Supreme Court to get justice. He was tried in 2009 and sent to a civil jail and got relief from the Supreme Court only in 2018. By anyone’s guess, this justice was neither ‘quick’ nor ‘less expensive'.

The Delhi High Court in Lance Naik V.P. Singh v. Union of India, [WP (C) 2511/1992 decided on January 25, 2008], while comparing the powers of the summary court-martial in India, with the US commented that the issue presents a sad picture, which portrays that the law in India remains a vestige of the colonial era. The Court held:

 

“Mindful of the fact that Article 33 of the Constitution of India confers unbridled powers on Parliament to bring into place a situation which severely abridges the Fundamental Rights of a citizen it becomes the bounden duty of the Courts to ensure that the equality doctrine is not needlessly nullified. It also becomes essential that the Courts should interpret the law in a manner which will reduce to the minimum the inroads into the infrangible rights contained in Chapter III of the Constitution. … A Summary Court Martial must be an exception and not the rule. It can only be convened where the exigencies demand an immediate and swift decision without which the situation will indubitably be exacerbated with widespread ramifications…The decision to convene a Summary Court Martial must be preceded by a reasoned order which itself will be amenable to judicial review.”

The Supreme Court on July 5, 2016, while hearing appeal in the above case [Civil Appeal No. 8360 of 2010] observed:

 

“We fully endorse and affirm the view taken by the High Court that summary court martial is an exception and it is imperative that a case must be made out for immediacy of action. Though there is no lack of determination or dearth of talent within the military set-up on the subject, there is a lack of collective will, administrative lethargy and inertia wherein the thought of systemic progressive change brings in an unexplained fear of the unknown, despite judicial intervention on a number of issues. Reform in the true sense will only be initiated when there is a clear-cut strong direction by the political executive by overruling any exaggerated claims of any such reform perceivably affecting ‘discipline’ or ‘national security.’ Rather, it must be realized that fair-play, justice and judiciousness promote discipline.”

 

Further, “The recent creation of the appointment of Chief of Defence Staff in India, as mentioned above, presents a new and fresh opportunity to finally kickstart the process of reform of military justice, along with the creation of a common military justice code for all defence services, in India. The issues and challenges faced by most democracies in this field are common, and we must be open to considering the best practices of varied jurisdictions.”

The Indian Navy and the Air Force do not have summary court martial. The unbridled discretionary power of a commanding officer to hold a summary court-martial in the Indian Army has often degenerated into arbitrariness and discrimination. The Supreme Court [Naraindas v. State of MP, AIR 1974 SC 1232] has laid down the applicable principle in the following words: “If power conferred by statute on any authority of the State is vagrant and unconfined and no standard or principles are laid down by the statute to guide and control the exercise of such power, the statute would be violative of the equality clause because it would permit arbitrary and capricious power, which is the antithesis of the equality before the law.”

The Supreme Court as well as various High Courts in India have criticized summary court-martial, being arbitrary, biased, unfair, and unjust and declared the punishment disproportionate to the offence. There is thus an urgent need to abolish this arbitrary system of a trial carried over from the era of colonial rule.

Wg Cdr U C Jha (Retd)