The Supreme Court has ruled that the summary court martial (SCM) to try the army jawans should be an exception.
The SCM, in vogue since the 1857 Mutiny, is carried out for swift action against an undisciplined soldier by a commanding officer (CO) who acts as the judge and prosecutor. The soldier is not entitled to a lawyer, and can be dismissed and jailed up to a year.
In the general court martial, a soldier or an officer can hire a lawyer. There is panel of officers, assisted by an officer from the judge advocate branch, which pronounces the final order.
In its July 5 judgment, the apex court said: “The summary court martial is an exception, and it is imperative that a case must be made out for immediacy of action.”
Deciding appeals from conflicting high court decisions, the Supreme Court quoted the opinion of the committee of experts appointed by the defence minister that the provision of the SCM should be used sparingly and only in operational areas where a regular trial is not practical.
The committee, comprising former adjutant general Lt Gen Mukesh Sabharwal, former military secretary Lt Gen Richard Khare, Punjab and Haryana High Court lawyer Maj Navdeep Singh, former judge Maj Gen T Parshad and Kargil war veteran Maj DP Singh reviewed service and pension matters, including strengthening of institutional mechanisms to redress the grievances.
The panel, in its report last year, called for replacement of the SCM by a robust system to meet judicial and constitutional norms.
On the CO’s qualification to conduct an SCM, a double bench of chief justice TS Thakur and justice Uday Umesh Lalit, said: “It is not imperative that an SCM be convened, constituted and completed by the CO of the unit to which the accused belongs. It is competent and permissible for the CO of the unit to which the accused was attached or sent to for the purpose of trial to try such accused by convening, constituting and completing the SCM in a manner known to law.”
What is summary court martial
The summary court martial is carried out in the army for swift action against undisciplined sepoys by a commanding officer (CO). The CO is the judge and prosecutor and the jawan is not entitled for a lawyer and can be dismissed and jailed up to a year. In the general court martial, a soldier or an officer can hire a lawyer. There is panel of officers, assisted by an officer from the judge advocate branch, which pronounces the final order. There is also a civilian lawyer to press the charges from the prosecution side