Understanding Summary Court Martial - Balancing Justice And Authority
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Category: General Law
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UNDERSTANDING SUMMARY COURT MARTIAL -
BALANCING JUSTICE AND AUTHORITY
Shaurya Singh, Christ (Deemed to be University) Pune-Lavasa
ABSTRACT
This paper analyses the effectiveness and procedure of summary court martial in the Indian Army that is conducted against persons of rank below officers and junior commissioned officers or warrant officers. It is often frowned upon due to the Commanding Officer being the sole presiding officer of the court and thereby considered to have arbitrary powers while conducting the same. It is the duty of the Commanding Officer to ensure discipline and administer justice. SCM came into existence with the idea of being applied to administer justice in field/operational areas where resources are scarce and a speedy trial is desired. Hence, the paper provides a critical analyses of the SCM by evaluating the existing procedure and providing recommendations to improve the same thereby balancing justice and authority.
Keywords: Summary Court Martial, Commanding Officer (CO), Judge Advocate General (JAG), Junior Commissioned Officers (JCO), Warrant Officers (WO), court of inquiry, summary of evidence, promulgation.
Introduction
The Armed Forces have to be ready for a battle at any given moment, which calls for readiness and discipline, hence, discipline is a NEED in order to have that ever-readiness for war. This need is thus upheld by military law, which assists in maintaining good order and discipline within the Armed Forces. But why do we have to subject the soldiers to military law on top of the already existing civil and criminal laws? To answer that, we need to delve into the features of military service that separate it from other occupations- 1. Universal jurisdiction- civilians are confined to a particular area, whereas in military service, a person can be called to serve anywhere in the territory of India or outside India. 2. Voluntary induction- the people voluntarily sign up for the service and give up certain rights and subject themselves to the rules and regulations of the organisation. 3.
No reservation- though it is part of the government, there is no reservation in the military. 4. No right to resign- while induction is voluntary, one can only make an application to resign, which may or may not be accepted. 5. Military law is a self-contained code- i. e. a statute which does not need or depend upon any other Act and is able to exist without help or influence of other laws, the help or influence being wrt the procedure. Special statutes exist like the Army Act, Navy Act, Air Force Act and the entire Armed Forces are governed by the rules contained herein. A soldier is thus subject to the concurrent jurisdiction of the military law and the law of the land and has the same rights and duties as a civilian, as well as is bound by the rights and duties under military laws.
Military law is regulated by the Constitution of India, the Army Act 1950, the Navy Act 1957, the Air Force Act 1950, the Armed Forces Tribunal Act 2007, and Defence Service Regulations (DSR). In fact, the DSR for the respective services is a comprehensive guide that governs a wide variety of aspects, ranging from service conditions, conduct of soldiers, to pensions and leave.
The demands of military law make it obligatory for all ranks to adhere to the law as laid down. This indicates that whoever is at the higher rank has a responsibility to enforce discipline and also to administer justice. There is no separate category of judges to administer the law. The trial takes place by a system of court martial, which are ad hoc courts, and the members of the court martial are your own peers and superiors. Trial proceeds on a day-to-day basis due to the urgency and necessity to maintain discipline, as matters cannot be allowed to drag on.
Offenders in military law are not viewed as criminals but are soldiers who may have deviated from the laid down code, violated the orders and for that they have to be brought before a court martial but care is to be taken as they need to be reformed and turned into useful combatants by giving them the requisite punishment to get them back in line. There are 4 kinds of court martial as per Sec. 1081 Army Act 1950- (a) general court martial (GCM), (b) district court martial (DCM), (c) summary general court martial (SGCM), (d) summary court martial (SCM). Summary Court Martial A summary court martial (SCM) is the lowest form of court martial, which came into existence to provide a prompt disposal of cases related to discipline in the Army. Any person other than an officer or junior commissioned officer (JCO) or warrant officer (WO) can be tried by an SCM.
The convening authority of the SCM is the Commanding Officer (CO) of any corps, department or detachment of the regular Army, who is the sole authority presiding over it. The SCM proceedings are attended by two other persons who are officers or junior commissioned officers or one of either, who shall not be sworn or affirmed as per Sec. 1162 of the Act. This implies that these two additional persons do not constitute the court, but their absence may vitiate the proceeding. On understanding Sec. 120 of the Act- Powers of summary court martial3, it can be seen that an SCM can try any offence punishable under the Act other than the offences punishable by death under Sec. 34, the offence of mutiny under Sec. 37, and civil offences under Section 69. Moreover, a limit has been set for the punishment of imprisonment given by an SCM, which
1 Army Act of 1950 § 108
2 Army Act of 1950 § 116
3 Army Act of 1950 § 120
shall be one year if the officer conducting it is of the rank of Lieutenant Colonel and above, and it shall be three months if such officer is below the specified rank. The parallels can be drawn between SCM and the Summary Trials under Section. 2834 of the Bhartiya Nagarik Suraksha Sanhita 2023, where the Chief Judicial Magistrate or the Magistrate of the first class have the power to try any offence summarily not punishable with death penalty, imprisonment for life, or imprisonment exceeding three years. Procedure for conducting an SCM:- 1. Court of Inquiry Once the CO convenes an SCM, a Court of Inquiry which is an assembly of officers/JCOs/NCOs to collect evidence, is issued against the accused soldier, and a Summary of Evidence is recorded, which is taken down in a narrative way in a question-and-answer form. If the court deems it material, it is recorded verbatim as well5.
Then a chargesheet is made which contains one or several charges for which the accused is being tried. 2. Hearing of Charge After the presiding officer, member and interpreter (if any) are sworn in, the accused is read the charges one by one for which he is arraigned, and he shall plead to each charge separately6 as guilty or not guilty. The accused can even object to a charge if no offence can be seen as per the Act or the Rules7. Upon the hearing of the charge, the CO may even set aside a charge if the evidence does not disclose one. In case an offence is discovered other than the offence which was the subject matter of the investigation, the CO may frame a suitable charge along with the investigation of the original charge8. There is also a provision for the accused to raise special pleas9 which may relate to the general jurisdiction or plea bar.
Special plea wrt general jurisdiction can be made if the particular court
4 Bhartiya Nagagrik Suraksha Sanhita of 2023 § 283
5 Army Rules of 1954 Rule 106
6 Army Rules of 1954 Rule 111
7 Army Rules of 1954 Rule 112
8 Army Rules of 1954 Rule 22
9 Army Rules of 1954 Rule 114
does not have the jurisdiction to try a particular matter or if the accused has ceased to be a person subject to the Army Act. A plea in bar can be understood as the accused being punished already for the offence, or when the offence has become time-barred. 3. Trial When the trial commences, the accused soldier has the option to represent himself or have any person present during the proceedings and get their assistance, who is called the friend of the accused10. This friend of the accused can assist him on all facts of the matter and even suggest questions to be put to the witnesses, but the friend of the accused can never address the court or cross-examine the witnesses themselves. On the other hand, during a GCM or DCM, the accused has the right to have a defending officer or a friend of the accused, whichever one he so desires.
If the accused wants a defending officer, it is the duty of the convening authority to make sure that the accused is represented by a suitable officer11. As stated earlier, the accused shall plead guilty or not guilty to the individual charge/s. In the event of the accused pleading guilty to a charge, the court shall ensure that whether or not the accused understands the nature of the charge he is pleading guilty to and make him understand the effect that such plea will have and overall explain the meaning of the charge and the difference in procedure if any. If the court ascertains from the summary of evidence that the accused ought not to plead guilty, then the court shall advise him to withdraw such plea or simply plead not guilty12. After this, the accused may address the court wrt the charge or in mitigation of the punishment.
In case the accused pleads not guilty, the evidence of the prosecution is taken, and once the prosecution is done making their case, the accused is asked if he has anything to say in his defence, for which he may call his witnesses. The court may then question the accused to enable him to explain any circumstances appearing in his statement or in evidence against him. For this, no oath shall be administered to him13. If the court deems it fit, any fitness can be called upon to reply to the defence of the accused.
10 Army Rules of 1954 Rule 129
11 Army Rules of 1954 Rule 95(2)
12 Army Rules of 1954 Rule 115(2)
13 Army Rules of 1954 Rule 118
4. Verdict Rule 12014 clearly states that “After all the evidence, both for prosecution and defence, has been heard, the court shall give its opinion as to whether the accused is guilty or not guilty of the charges”. The findings on every charge are then recorded and stated in the verdict as guilty or not guilty. If the accused is found to be not guilty of the charges, he shall be acquitted, and the same shall be pronounced in open court, to which the court shall date and sign the proceedings thereby authenticating it15. If the findings of the charge are guilty, the court may take into consideration the accused’s age, rank, service, gallantry awards, military awards, character, previous convictions or accusations (if any), and previous arrests before sentence of conviction.
Rule 124 states, “The court shall award one sentence in respect of all the offences of which the accused is found guilty. 16 If the sentence of imprisonment given by an SCM is three months or less, without dismissal being part of the sentence, the court shall issue a direction for the offender to be in military custody as a part of the sentence. Unless the specific direction of military custody is given, the offender shall by default be sent to a civil prison. Sending an offender to a civil prison is avoided especially if he has to return to duty after the punishment. On the other hand during active service, Section 169(4) of the Army Act gives the CO the power to designate any place where imprisonment can be done and that too for and length17.
Moreover, the summary trial conducted by the CO shall be considered illegal if he tries for any of the offences mentioned under Section 120(2) of Army Act without considering whether grave reasons for immediate action exist or not. Hence, an explanatory memorandum is to be attached to the proceedings of SCM after its completion, explaining the need for conducting the same. 5. Execution The SCM sentence shall be promulgated at the earliest opportunity after pronouncement without delay. Promulgation refers to the pronouncement of the findings and verdict of the court. A parade is called upon and the accused is brought and everyone attending is told the
14 Army Rules of 1954 Rule 120
15 Army Rules of 1954 Rule 122
16 Army Rules of 1954 Rule 124
17 Army Act of 1950 § 169(4)
charges for which the accused was arraigned, whether he was found guilty/not guilty, which sentence the court has decided to pass against the accused, and if the accused is dismissed- he is escorted out of the unit. The confirmation/non-confirmation of the proceedings shall be promulgated as per the the directions (if any) of the confirming authority and then given to the accused. Without the promulgation being in effect, the proceedings are considered incomplete as no confirmation is given on the findings and sentence of the court martial by the confirming authority. Finally the review of proceeding takes place as per Rule 133 r/w Section 162 of the Act.
Through the Deputy Judge-Advocate General in whose command the court martial was held, forwards the proceedings upon promulgation to the officer in command of the division or brigade who shall deal with them in pursuance of Section 16218. The officer in command of the division or brigade may set aside aside the proceeding or reduce the sentence to any other based on the merits of the case19. After review by the officer, the proceedings are returned to the accused person’s corps for preservation and record where they shall be kept for not less than three years. Analysis SCM has functional utility as a speedy and accelerated trial is essential especially in field areas or during active operations where conductinga formal trial is difficult.
In the context of Army or any service for that matter, discipline is key and an SCM provides an immediate response to indispline thereby deterring further infractions. Further, an SCM in terms of procedure is simple and less complications and technical irregularities occur when it is conducted. While comparing GCM and SCM, GCM is designated for more serious crimes and is presided over three, five, or seven officers who are senior in rank to the accused. Moreover, a GCM is more in touch with the probative process and allows the accused to have legal representation by providing a defending officer. On the other hand, the expediated nature of SCM often comprises of several procedural inaccuracies and lack legal representation as the accused is allowed to have a friend of the accused who assists the accused throughout the trial but cannot represent him. Thus the
18 Army Rules of 1954 Rule 133
19 Army Act of 1950 § 162
right to defence gets undermined especially when accused might get imprisoned. This disparity often raises question on balancing justice and authority. The CO is the convening authority of the SCM as he calls for the court martial. He acts as a judge as hes is the presiding officer and acts as a prosecutor/investigator as he also calls for the court of inquiry which prepare the summary of evidence and charges against the accused. This might cause bias and conflit of interest. Before 2007, an SCM could have been considered a violation natural justice as there was no appellate forum against SCM verdicts and only a statutory application to under Section 164 of the Army Act could be made to the confirming authority to remit the sentence, mitigate the punishment or pass any other award20.
But post the establishment of the Armed Forces Tribunal, persons aggreived by an order, decision, finding or sentence of a court martial can appeal under Section 15 of the Armed Forces Tribunal Act 200721. Hence there is an authority to look over in case there is any miscarriage of justice. Recommendations
1. Legal representation- accused persons in an SCM are not given a defending officer and only
a friend of the accused is allowed to be present. This practice is not exactly beneficial for the accused as he might not be able to convey his pleadings or cross-examine the witness properly due to lack of military legal knowledge and being under pressure of receiving punishment which could be career-ending or worse, lead to imprisonment. MMoreover, a defending officer should be provided atleast when the result is potential imprisonment or dismissal from service.
2. Judicial training- COs are of the rank of Colonel in the Army. So once an officer is promoted
to the rank of Colonel, they should be made to do a course in judicial training and law in order to instill an appreciation of natural justice priniciples. This will also lead to reducing the number of procedural irregularities that allegedly occur during SCM.
3. Separation of roles- during an SCM the CO acts as both the prosecutor and judge which
leads to the alleged bias. Hence, an SCM should consist of two officers in order to separate the
20 Army Act of 1950 § 164
21 Armed Forces Tribunal Act of 2007 § 15
roles. The CO can act as the judge and an officer from the JAG department can be the prosecutor.
4. JAG Review- the SCM proceedings are sent to the officer in command of the division or
brigade under which the SCM was held, to review the proceedings and deal with them in pursuance of Section 16222. Instead the proceedings should be sent to a senior JAG officer like the Dy JAG of that particular command and either him or an officer appointed by him shall review the proceedings as per procedure and principles of natural justice.
5. Use of technology- video/audio recording of the SCM proceedings should be mandated to
be reviewed by the superior officer or a senior JAG officer to keep a check on the CO as well as have additional data to review the proceedings and not just rely on the summary of evidence of the proceeding which could have been allegedly be manipulated by the CO. Conclusion Summary Court Martial is surely an effective tool in ensuring discipline on the regimental level or in active operational areas where the focus of the CO is required to act efficiently against external aggression/armed rebellion and he cannot afford to spend a lot of time on solving the internal issues being created under his command due to indiscipline and insubordination. But still with passing time reforms are needed in the military justice system as we cannot continue to rely upon statutes that were enacted in the 1950s.
The concerns regarding lack of judicial fairness and alleged arbitrariness should be reformed through checks and balances. Reforms such as legal representation, judicial training to the CO, and review of the proceedings by a JAG officer are good enough to bring about a positive change that harmonizes justice and authority because at the end of the day the people being subject to the court martial are soldiers who deviated from the path of order and discipline and hence they cannot be treated as criminals.
22 Ibid Army Act