Monday, May 22, 2017
Indian Military Law worked well for nearly a century across two World Wars and was updated in the early 1950’s. For the next few decades it worked well. However in the 1990’s a change in the functioning of a General Court Marshal ( GCM ) was brought in whereby it was required to record, “speaking order/ reasoned order. “
The trigger for this change was the increasing number of defence personnel approaching High courts/Supreme court against verdicts of GCMs. So was the case concerning Summary Court Marshals ( SCM) . The number of military personnel seeking justice from the civil courts in 1992 was 1723, which increased to 6024 in 2000.
In a particular year the civil courts decided 1100 cases but the fresh cases during the same year were 1500. Committee formed by the defence minister had unfortunately presumed that this, large scale exodus to the civil courts, was due to loss of faith in the military's internal redressal system.
However, all the cases taken up with the civil courts do not relate to seeking relief from the verdict of a military court, but a good percentage pertain to administrative matters.
In one instance, of the 1100 cases decided by the civil courts, 86 percent were in favour of the military ( in agreement with the military court verdict / administrative action ) and out of the remaining 14 percent against the military, 70 percent related to medical disability cases ( administrative matter ) and 30 percent were miscellaneous cases.
Out of the miscellaneous category only 7 to 8 percent pertained to disciplinary cases. From these figures it would be apparent that in a very small percentage of GCM cases, verdict is, reversed by the civil courts. This percentage would stand better than reversal of verdicts of lower courts by high courts and of high courts by the supreme court.
In the case of GCM, a high court had ruled that it must record speaking order/ reasoned order, to justify its verdict. However, the Supreme Court of India was alive to the fact that the very nature of composition of a court at a GCM did not qualify it to record a speaking order/reasoned order and consequently, in the case of SM Mukherjee versus Union of India, set aside the high court order on the subject.
However the Indian Parliament had missed the breakdown of details of military’s cases taken up with civil courts and in it's wisdom, passed the bill, Army Amendment Act, September 1992, making it mandatory for the court at the GCM to record a speaking order / reasoned order. Thereby hangs a tale of delivering a grievous blow to the military’s justice system.
Now, a military court at a GCM is somewhat similar to a jury in a civil court, except that its members are well versed in the nature of military’s functioning and the laws that govern these. Further one member on the GCM is from the same branch of the army as the accused. Members of a GCM are not legally qualified to be able to write a speaking order which could stand scrutiny by a legal luminary, such as a high court or supreme court judge: in case an appeal is placed before it, which in to-day's ethos is more the rule than an exception.
KTS Tulsi, former Additional Solicitor General, commenting on the military judicial system, had then observed that Court Martials lay, “excessive, emphasis on discipline and the hierarchical system.” Obviously Tulsi feels that a half way house to discipline is possible. He is apparently unfamiliar, both with the central place discipline holds, in the military’s scheme of things and the rationale to the hierarchical system. Discipline is the bedrock, the very soul of an army, on which the military structure rests and in its absence, it would simply collapse. What is less known is that military law is more severe than the civil law and there is a rationale to this severity.
Civil courts are generally not familiar with the peculiar environments and extraordinary conditions under which the military is required to operate and at one time were quite rightly reluctant to accept cases pertaining exclusively to the military. That perhaps is not so any more. Less known is the point that military discipline, enhances efficiency and contribute to safety during combat.
The requirement of recording speaking order / reasoned order by the court at a GCM tends to subvert the very spirit of the jury system of this court. The
Judge Advocate Branch General ( JAG ) officer in the court is there only in an advisory capacity on issues specific to law points and procedures and is not part of the court. Since officer from the JAG branch is the only law qualified officer and the one who can (in fact does ) write the speaking order / reasoned order, has come to exercise undesirable influence on the court, thus undermining the very rationale to the jury system at the GCM. This has also led to inordinate delays in concluding GCMs thus defeating the essential requirement of quick disposal of cases.
However in the case of Summary Court Marshal ( SCM ) cases, the Supreme Court ( SC ) had held that it must be held only in rare and exceptional circumstances, with reasons for the immediacy of action recorded in writing. Appeal filed by the Army, for review of this order, was set aside by the SC.
Now a commanding officer who alone holds SCM, is a father figure in a unit and it is only in a very rare case, where inaction in initiating SCM against the offender can lead to spread of ill discipline in the unit, that he takes recourse to holding SCM. If he is to record in writing the reasons for holding an SCM, the reasons thus recorded cannot be adequately appreciated by a civil court, detached, in time and circumstances, as it would be, from the then prevailing conditions in the unit, and therefore, cannot objectively access the award of a SCM. A commanding officer is entrusted with the safety and lives of thousand men and yet called upon to justify an SCM of an erring soldier!
. What is often overlooked is that one cannot be disciplined in great things and undisciplined in small things. Ill discipline is contagious and if not handled promptly and adequately can spread to the determent of good order and military discipline in a unit. This requirement of recording speaking order by a GCM has resulted JAG branch officer gaining say in the verdict, in prolonging its proceedings, and it almost adopting pattern of civil courts with all the attendant adverse impact on discipline. There has been similar fallout on holding SCM by unit commanders.
It is frequently being parroted that Indian military law is a legacy of the colonial era and that SCM, as pointed out by a high court, came into being soon after the mutiny, overlooking the fact that military law, rules and regulations were updated in early fifties. Whatever may have been the excesses of the colonial era, it left behind in India a world class military, which distinguished itself in the two World Wars and soon after independence in J and k operations in 1947-48. What is less appreciated is that military law is more to do with administrative functioning than legal aspects.
In the recent past there have been some unsavory and despicable acts of ill discipline in a number of military units and more recently in Indian Navy at INS Sandhayak. Such incidents were not known to have occurred during the colonial period. Perhaps our meddling with the military’s system of justice has, had its adverse impact on discipline!