Throughout history, military law has been viewed as a compromise between justice and necessity. In July 5 2016, the Supreme Court (SC) judgement on the concept of Summary Court Martial (SCM) in the Army generated a fascinating debate in military circles.

The SC ruled: “The summary court martial is an exception, and it is imperative that a case must be made out for immediacy of action.” It upheld the legality of the SCM, but emphasised that this provision was based on necessity. Expeditious enforcement of discipline must be used as an exception, not as a rule, lest the spirit of natural justice gets violated. While what the SC said was well known to the military Commanders of the past – that these are extraordinary provisions meant to be invoked in exceptional circumstances – the perception had become foggy in the past few decades, with the SCM being employed as a method in the regular routine. It’s an approach that the SC has now deprecated and rightly reminded the Army to correct.

SCM was introduced into the British Indian Army after the mutiny of the Bengal Army in 1857. It was found that discipline in the mutinous Bengal Army was very poor due to the insignificant status of the Commandant/Commanding Officer (CO) of the units who had practically no power to punish the soldiers under his command. In contrast, discipline in the Punjab Irregular Force (responsible for the security of the North West Frontier Province) was much better as the Commandant/CO had absolute powers and could deal promptly and efficiently with all military offenders. The system had its origin in the union of the functions of deputy commissioner, political officer and military commander in the same person. This union enabled the CO to conduct trials, convict a military offender, and thereafter issue a warrant for execution of the sentence, which was respected by the civil and prison officials because of the CO’s civil and magisterial capacity.

Post-1857, when the new Indian Army came to be organised upon the ruins of the old, it was decided to strengthen the hands of the CO. With this object in mind SCM was introduced tentatively and in 1869, established as part of Indian Military Law through Articles 93-97 and 107 of the Indian Articles of War 1869. It remained on the statute book in the Indian Army Act of 1911 and then the post-independence Army Act of 1950.

Unlike other court martial formats, the Court with respect to a SCM does not consist of an independent presiding officer and members of the court with voting rights, and the accused does not have the right to legal counsel. The CO of the unit to which the accused belongs, forms the Court and is also the prosecutor. He can hand out punishments that amount to as much as one year’s imprisonment and dismissal from service to soldiers of the rank of Havaldar and below. The proceedings are conducted in the presence of two Officers/Junior Commissioned Officers. However, they do not take active part in the proceedings and do not have voting rights. The accused cannot be represented by a lawyer, but is entitled to a “friend of the accused” for advice. This “friend” cannot take part in the proceedings. There is also no mandate of recording reasons for the decision and there is no condition of ‘confirmation’ by higher authorities as applicable to other courts martial. The sentence meted out is promulgated and executed forthwith.

Officially, proceedings of the SCM are ex post facto scrutinised at the Corps Headquarters for adherence to procedure. The accused can also make an ex post facto representation to a higher authority than his CO. However, as per available statistics, the judgement of the SCM is rarely interfered with either during scrutiny of adherence to procedure or while examining the representation. Thus, the SCM is an exception even within the military justice system and to a layman, it would appear to be extremely draconian.

SCMs also tend to violate the two fundamentals of natural justice: ‘bias’ and ‘opportunity to the accused to defend himself’. The CO constitutes the Court. Since he is responsible for discipline and operational efficiency of his unit, there is always a possibility of ‘bias’ against an accused. More so when he himself gets the first information of an offence and orders investigations. The counter argument is the Utopian logic that a CO can do no wrong. The proceedings of a SCM are formal: charges are read out, witnesses are produced and cross examination is carried out by the prosecutor (the CO) and the defence (the accused). Given the limited knowledge of law that the soldiers have, on the face of it, the accused can hardly defend himself. The counter argument focuses on the “opportunity given” and not the capability of the accused to use the opportunity.

An army unit is a very cohesive organisation. Disciplinary proceedings are only initiated as a last resort. However, this also leads to presumption of guilt resulting in procedures for the conduct of the  SCM being given short shrift.

Viewed from the angle of expediency in active military operations, it might still be an effective tool in rare circumstances, but there could be no justification of invoking it in peace time or when other types of trials or Court Martial are possible, or when other forms of punishment would suffice. For example, SCM may still be a helpful tool when a unit is deployed at a place like Siachen and a heinous crime is committed which needs to be dealt with swiftly and recourse to other remedy is not possible. However, it makes no sense to employ it minor cases, for instance if a theft by a soldier is reported when the unit is at a peace-time location. To utilise such a method in regular situations would mean denuding our soldiers from the right to proper trial, right to counsel and all procedural safeguards that cannot be wished away under the garb of discipline only because the soldiers happen to wear a uniform.

It was also interesting to note the serving and retired officers commenting that depriving the COs of this power would affect discipline and they would not be able to punish troublemakers or instill fear of command in troops. As a disclaimer, I must underline that there can be no cavil with the fact that discipline is the bedrock of our military. However, such discussions and comments bring about a serious question on whether the armed forces are making the commanders aware and educated of their powers and their correct usage.

Firstly, the SC has not taken away the power of ordering the SCM and it has not been restricted; it has only been rationalised. Secondly, COs have ample authority under Section 80 of the Army Act to award various forms of punishments, including imprisonment upto 28 days. There are other administrative methods too which can lead to discharge or even dismissal from service. Further, men and women in uniform are meant to be commanded by earning their respect and leading by impeccable example, not by instilling fear, and such powers are not meant to mete out pre-decided punishments, but to render justice. What the apex court has done is remind the Army that an instrument which gives us drastic powers in exceptional circumstances – to the extent of incarceration and stripping of livelihood – cannot be used casually.

Close to 500 Summary Courts Martial take place every year, which is much higher than all other types of Court Martial. That itself shows how it has become more of a preferred way than an exception. At times, the SCM is used as a means to award lesser punishment to a soldier than he would have been awarded through a regular trial, which amounts to circumventing the law.

It is also important to realise that the Navy and the Air Force do not have the concept of SCM on their statute books. All other major armies, including ones which are facing much heavier disciplinary issues, do not employ this system. In the United States of America, a person can be tried by SCM only if he or she renders consent and even then, the punishment of dismissal is not permissible. There have been massive reforms in other militaries where the role (or interference) of senior military commanders in the overall system of military justice has been done away with and members of military juries and prosecution have been insulated from command influence. Even smaller nations like Nepal have moved on.

Indian jurisprudence is characterised by separation of powers and we acceded to the International Convention of Civil and Political Rights in 1979 which promises an independent and impartial trial to every citizen. The decision of the SC provides a great opportunity to the military for reform – to expand its legal cadre and adjust its practices with the thorough fairness that is expected of it.

It has been my experience both in service and as a member of the Armed Forces Tribunal, that while conducting majority of the SCMs, existing procedures, as given in the Army Act 1950, were given short shrift leading to miscarriage of justice. The higher headquarters rarely intervened to correct the same in the “interests of the organisation”. More often than not, the proceedings were set aside by High Courts and the Armed Forces Tribunal. The provision of SCM should be used as an exception and not as a rule and the reasons for doing so should be on record. The Army Act 1950 should be suitably amended and further detailed guidelines should be issued by the Adjutant General’s Branch, Army Headquarters.

The Delhi High Court had once opined that “in order to obtain discipline and obedience, it is essential that the Armed Forces personnel are dealt with an innate fairness”. The Supreme Court had recorded that “fair play and justice cannot always be sacrificed at the altar of military discipline”. These wise words should forever ring true, and the Army, being the beacon of rectitude, must go out of its way to ensure that it spurns rigidity and rather imbibes a system worth emulation by other institutions in every sense of the word.