Ex. Ln Vishav Priya Singh vs Union Of India (Uoi) And Ors. ...
2008 Latest Caselaw 152 Del

JUDGMENT

Vikramajit Sen, J.

1. This batch of Writ Petitions raises two common questions of law pertaining to the Summary Court Martials (SCMs hereafter) of general importance - (a) whether an SCM can be convened, constituted and completed by the Commanding Officer (CO for short) of a Unit to which the accused did not belong and (b) circumstances in which an SCM can be convened rather than a General Courts Martial (GCM) or District Courts Martial (DCM) or Summary General Courts Martial (SGCM) as envisaged in Section 108 of the Army Act, 1950 (Army Act for short).

2. In CWP 2511/1992 the Petitioner, Ex. L Nk Vishav Priya Singh, has alleged that he had made complaint against the CO, 19th Batallion Mahar Regiment of prejudicial treatment meted out by him to the Petitioner. It has been asseverated in the Writ Petition that initially the Brigade Commander had nominated the CO, 17th Kumaon to investigate into the Petitioner's complaint. The CO of 19th Mahar through manipulation got his close friend, the CO of 18th Batallion, Punjab Regiment, detailed to investigate these complaints. The Petitioner was ordered to proceed to 18th Punjab Regiment. Eventually, the CO, 18th Punjab Regiment tried the Petitioner by SCM and convicted/sentenced him to suffer Rigorous Imprisonment of six months in the Civil Jail and dismissal from service. The argument is that since the Petitioner belonged to the 19th Mahar, but was tried by SCM held by CO of 18th Punjab Regiment, the Trial was rendered coram non judice. The factual matrix, as will be seen, is similar to those existing in S.K. Sharma (infra) inasmuch as the accusation had been leveled against the CO of the Unit to which the Petitioner belonged. It is important to mention that the Petitioner had made complaints against his CO on 26.3.1990; he was interviewed by the Brigade Commander on 30.5.1990; was asked to appear before the CO, 18th Punjab Regiment on 15.7.1990; was charged under Section 41(2) of the Army Act for disobeying a lawful command given by a superior officer in that he, when asked to accept a letter dated 16.7.1990, requiring his presence in CO's Office for investigation in Unit, refused to do so and disobeyed verbal orders.

3. Ex. NK Prem Singh has filed CWP 3519/1998 pleading that he belonged to 15 INF DIV ORD Unit which assertion stands admitted. On 17.4.1998 he was charged under Section 40(a) of the Army Act for using criminal force to his superior officer in that he, at Amritsar on 20.10.1997 struck with an iron implement on the head and legs of Company Hav. Major Clerk. The Petitioner was sentenced to (a) reduced to ranks, (b) dismissed from service and (c) Rigorous Imprisonment for six months in the Civil Jail. It is also pleaded that Regulation 381 does not include offences under Section 40(a) of the Army Act, an aspect which we do not propose to consider at the present juncture. The CO, 194 Field Regiment, convened the SCM which concluded on 21.4.1998. The Respondents have pleaded that the Petitioner was attached for disciplinary purposes with 194 Field Regiment vide letter dated 21.10.1997. In paragraph 3 of the Counter Affidavit it has been asseverated that the 'occurrence for which the petitioner was taken into custody took place on the evening of 20.10.1997. He was taken into custody by the CO of his Unit and since his Unit had no quarter guard, the petitioner was shifted to the quarter guard towards of 194 Field Regiment for safe custody'. It has further been pleaded that by letter dated 24.10.1997 the Petitioner was attached with the Unit for disciplinary purposes, to remain attached till finalisation of the investigation against him. In other words, six months had elapsed between the incident which is the subject matter of the SCM and the holding of the SCM.

4. CWP 6185/2002 has been filed by Ex. NK Dwarka Prasad stating that he belonged to 24th Rajput Regiment. In the year 2000 he was temporarily attached to 61st Infantry Brigade to perform the duties as a Sahayak. By Charge-sheet dated 29.10.2001 under Section 69 of the Army Act he was accused of committing a civil offence on 25.10.2001, that is to say, using criminal force to a woman with an intent to outrage her modesty and on that very date the Commander, 65th Infantry Brigade ordered that he be tried by an SCM. The Petitioner was tried by the SCM between 3.11.2001 and 5.11.2001 and was convicted/sentenced (1) to be reduced to ranks (ii) to be dismissed from service, (iii) to suffer imprisonment in civil jail for one year.

5. CWP 2433/2003 has been filed by Ex. Hav Dharambir Kanker who had been promoted to the rank of Havaldar in the Corps of the Military Police. After sixteen years he was posted to 4th Corps Provost Unit at Tezpur in Assam. By Charge-sheet dated 9.6.2000 the Petitioner was accused of making sundry accusations against a person subject to the Army Act. On 22.6.2000 the SCM sentenced the Petitioner (a) to be reduced to the ranks and (b) to be dismissed from service.

6. CWP 20233/2005 has been filed by Sepoy U.S. Mishra stating that he was enrolled in the Indian Army in March, 1987 and that on 18.3.1999 he was posted to 38 defense Medical Store Depot. By letter dated 27.3.2002 the Petitioner was attached, for disciplinary purposes, to 38 AMSD Blocks. The Petitioner was, along with 15 Army personnel, tried by SCM between 20.12.2004 and 4.1.2005 by CO 118 Field Regiment where the Petitioner was attached for disciplinary purposes. The first charge under Section 52(f) of the Army Act was that the Petitioner between 4.8.1999 to 6.6.2001, with intent to defraud, improperly altered several entries in the Issue Vouchers. The Petitioner was found guilty and sentenced to be reduced to ranks on 4.1.2005. The contention is that the CO of 118 Field Regiment could not try the Petitioner by SCM since he was only 'attached with the Unit'. Delay in convening the SCM would also obviously come in for consideration.

7. The facts in CWP 17622/2004 filed by Sep/Clerk S.K. Nair and CWP 18185/2004 filed by Sep/Clerk Balwinder Singh are similar. In September 1998 a Court of Inquiry was ordered to investigate into the irregular enrollment during a recruitment rally held at Pathankot in March 1995. The Petitioners' assert that since they were posted to 14th Sikh Regiment, only the CO of that Unit was competent to try them by an SCM. Accordingly, SCM by the CO of 1 TB ASC Centre, Gaya was legally incompetent and non-est. Delay in convening the SCM would also obviously come in for consideration.

8. On the first question, two Single Benches of this Court have taken the view that an SCM cannot be held by the CO of a Unit to which the accused/delinquent did not belong. See Ex-Havildar Mahipal Singh v. Union of India and Hav. (AEC) S.K. Sharma v. Union of India 2002 (1) Forces Law Judgment 308. The latter case was carried to the Division Bench by way of appeal and came to be reversed in Union of India v. S.K. Sharma . We have painstakingly perused this Judgment of the Division Bench and, with respect, find that a rhetorical question has been raised but not answered. The discussion or dialectic is confined to these words-

7. A bare reading of Regulation 381 and the operative words as set out in Regulation 381 makes it manifestly clear that the said regulation is only for the trial of deserters and in an eventuality where a deserter has to be tried by a Summary Court Martial, such deserter has to be tried by the Commanding Officer of that Unit only to which he belongs. How the procedure prescribed under regulation 381 for the trial of deserter can be applied for offences under Section 56(a) and Section 63 of the Act.

Therefore, the reliance placed by the learned Single Judge on Ex Havildar Mahipal Singh's case is misplaced.

9. Meanwhile, a Bench of the Allahabad High Court in Hav (MP) Hanuman Singh v. Union of India Mil LJ 1999 All 37 relying on Mahipal has also concluded that attachment of the accused/delinquent to another Unit for the purpose of an SCM viz-a-viz charges of using threatening language to a superior officer was legally improper. This decision is also of importance and significance to the issue before us in that the Court found insufficient cause and reason for taking immediate action in the nature of an SCM rather than taking recourse to the convening of either a District Court Martial or a Summary General Court Martial. After careful cogitation, the only possible conclusion that we can conceive of is that the Division Bench in S.K. Sharma did not specifically overrule Mahipal but merely found its ratio not to apply to the factual matrix before them. Otherwise, the Division Bench was bound to explain the reasons which prevailed upon it to take a different view from the two Single Benches. Furthermore, both Mahipal as well as Hav. (AEC) S.K. Sharma have been considered in great detail by another Division Bench in K.P. Pandey v. Union of India 2003 LAB. I.C. 1937. His Lordship, Justice S.B. Sinha (as the Chief Justice of this Court), speaking also for our learned brother Justice A.K. Sikri, inter alia, extracted with approval the following passage from the Judgment of the learned Single Judge in Hav. (AEC) S.K. Sharma:

9. There is no doubt that in view of the allegations having been made by the petitioner against his own commanding officer, the decision of the respondents to attach the petitioner to a different unit cannot be faulted. The proceeding before the summary court martial also shows that the petitioner was granted opportunity to cross-examine the witness. In view of the offence charged, there would also be no question of application of Section 120(2) of the Act. The question however, remains whether the petitioner having been once attached to a different unit other than his own, summary court martial proceedings could or could not take place after such attachment. The question is not to doubt the bona fides of the attachment to the other unit since the same was rightly done. In Ex. Havildar Mahipal Singh's case (supra), the learned Single Judge has considered the scope and ambit of a summary court martial under Section 116 of the Act and has categorically held that the summary court martial cannot take place by transfer of the petitioner to another unit for purposes of trial. The only exception made out vide Note 5 of the Manual of Military Law would not apply to the case of the petitioner since the petitioner was admittedly not a deserter. It has also to be kept in mind that in fact the CO had recommended a District court martial but the Superior Military authority, in their wisdom, directed holding of a summary Court martial. It cannot be doubted that the superior authority does have a right to direct summary court martial as stated in judgment in Ex. Sepoy Vijay Kumar's case (supra). The controversy has arisen in the present case by reason of the fact that as a consequence of the direction to hold a summary court martial the same had to be held by a commanding officer other than the commanding officer of Regiment to which the petitioner was attached where he is alleged to have committed the offence for which he was allegedly charged. The letter dated 8-2-1997 (Annexure R) further makes it clear that the petitioner was attached to 1842 Light Regiment only for discipline purposes. In view of the aforesaid I am of the considered view that the ratio of Ex. Havildar Mahipal Singh's case (supra) would squarely apply to the facts of the present case and in view of the facts of the present case and in view of the fact that summary court martial has been held by a commanding officer of another unit, the same cannot be sustained in law.

10. We propose to deal with this legal nodus in detail. The relevant provisions, namely, Sections 116 and 120 of the Army Act and Paragraph 381 of the defense Services Regulations, Regulations for the Army to be considered, are reproduced for facility of reference:-

116. Summary court-martial.--(1) A summary court-martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the Court.

(2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such be sworn or affirmed.

Note 5:- See Regs Army para 381 for the circumstances under which a CO of a different unit may hold the trial by SCM of a person subject to AA. 120. Powers of summary courts-martial--(1) Subject to the provisions of Sub-section (2), a summary court-martial may try any offence punishable under this Act.

(2) 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 an 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, 37 and 69, or any offence against the officer holding the court.

(3) A summary court-martial may try any person subject to this Act and under the command of the officer holding the court, except an officer, junior commissioned officer or warrant officer.

(4) A summary court-martial may pass any sentence which may be passed under this Act, except a sentence of death or (imprisonment for life) or of imprisonment for a term exceeding the limit specified in Sub-section (5).

(5) The limit referred to in Sub-section (4) shall be one year if the officer holding the summary court-martial is of the rank of lieutenant-colonel and upwards, and three months if such officer is below that rank.

Note 5:- A NCO or a sepoy cannot be attached to another unit for the purpose of his trial by SCM except as provided in Regs Army para 381.

381. Trial of Deserters.-- Under normal circumstances trial by summary court martial for desertion will be held by the CO of the unit of the deserter. However, when a deserter or an absentee from a unit shown in column one of the table below surrenders to, or is taken over by, the unit shown opposite in column two and is properly attached to and taken on the strength of the latter unit he may, provided evidence, particularly evidence of identification, is available with the latter unit, be tried by summary court-martial by the CO of that unit when the unit shown in column one is serving in high altitude area or overseas or engaged in counter-insurgency operation or active hostilities or Andaman and Nicobar Islands.

In no circumstances will a man be tried by summary court-martial held by a CO other than the CO of the unit to which the man properly belongs; a unit to which the man may be attached subsequent to commission of the offence by him will also be a unit to which the man properly belongs.

TABLE Column one Column two Armoured Corps Regiment Armoured Corps Centre and School A unit of Artillery Regimental Centre concerned A Unit of Engineers Headquarters Engineers Group, concerned A unit of Signals Signal Training Centre, Jabalpur Infantry battalion Regimental Centre concerned Gorkha Rifle battalion Gorkha Regimental Centre concerned ASC Unit ASC Centre concerned RV Corps RVC Centre

11. It should also be noted that paragraph 448(c) of the defense Services Regulations, Regulations for the Army prescribes valuable safeguards against abuse of SCMs, but the spirit of all these provisions is far too often ignored so much so that the vice has become the norm - SCMs invariably pass orders of dismissal from service.

448. Scale of Punishments Awardable by Summary Courts-Martial.--The following general instructions are issued for the guidance of officers holding summary courts-martial in passing sentence, but nothing contained in them will be construed as limiting the discretion of the court to pass any legal sentence, whether in accordance with these instructions or not, if in its opinion, there is good reason for doing so:-

(c) The award of imprisonment in a civil jail coupled with dismissal from the service must never be used merely as a mean of getting rid of a man from the service but should be imposed only when the offence by itself, or the offence and the man's previous record taken together, actually merits such a punishment. In other cases in which removal is considered desirable in the interest of the service, the discharge of the individual under the appropriate item of Army Rule 13 should be applied for by the CO and authorised by the brigade or superior commander.

12. Learned Counsel for the Respondents have strenuously contended before us that the two Notes 5 on which reliance has been placed by learned Counsel for the Petitioners cannot be given any legal effect. We find no merit in the objection as this question has already been considered by the Supreme Court on several occasions. Tara Singh v. State of Rajasthan enunciates that the 'function of the note is to provide procedure and to control discretion. The real purpose of the Note is that when Rules are silent the Notes will fill up the gaps'. Thereafter their Lordships analysed several decisions in Shyam Lal v. State of UP and T.G. Shivacharana Singh v. State of Mysore and further opined 'that Notes which are appended to Rules are of aid not only in applying the Rules but also in interpreting the true import of the Rules'. These very passages have been applied in H.C. Sarin v. Union of India . In the backdrop of these precedents there is no justification or scope for the Respondents to raise the objection as to the binding force of the Rules yet again, and that too before us. It has led to the protraction of the present proceedings. This position is highlighted on a perusal of the Union of India v. Charanjit S. Gill (decided without any reference of these cases) in which the rank/qualification of the Judge Advocate was at the fulcrum of the controversy, that is, whether he could be junior to the accused. The Respondents had taken a stand diametrically opposite to that adopted by them before us, as is manifest upon a reading of these paragraphs:-

22. Further relying upon Note 2 mentioned at the foot of Rule 102 providing, 'as to disqualification of Judge Advocate CAR 39(2)', the learned Additional Solicitor General submitted that the said Note having the force of law has been followed by the Army authorities from the very beginning and thus disqualifications of a Judge advocate are referable to only Rule 39(2) of the Rules. It is contended that as the source of the Rules and the Note thereto is the same, the efficacy of Note 2 cannot be minimised. The Army authorities, according to the learned Additional Solicitor General have understood Rules 39, 40 and 102 in this context while making appointments of the Judge Advocate....

24. Per contra Respondent 1 in his affidavit has submitted that the Notes under the sections and rules as are found under various provisions of law compiled by the Army authorities in the Manual of Military Law do not form part of the Army Act, 1950 and Army Rules, 1954. The Rules of 1954 are stated to have been borrowed from the Indian Army Act, 1911 and the Rules framed there under. It is contended that the Notes are not law passed by Parliament and have not been vetted even by the Ministry of Law and Justice or by the Law Commission. 25. It is not disputed that Section 191 of the Army Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the Act and Section 192 to make regulations for all or any of the provisions of the Act other than those specified in Section 191. All rules and regulations made under the Act are required to be published in the Official Gazette and on such publication shall have the effect as if enacted in the Act. No power is conferred upon the Central Government of issuing notes or issuing orders which could have the effect of the rules made under the Act. Rules and regulations or administrative instructions can neither be supplemented nor substituted under any provision of the Act or the rules and regulations framed there under. The administrative instructions issued or the notes attached to the rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The government, however, has the power to fill up the gaps in supplementing the rules by issuing instructions if the rules are silent on the subject provided the instructions issued are not inconsistent with the rules already framed. Accepting the contention of holding Note 2 as supplementing Rules 39 and 40 would amount to amending and superseding statutory Rules by administrative instructions. When Rule 39 read with Rule 40 imposes a restriction upon the Government and a right in favor of the person tried by a Court Martial to the effect that a person lower in rank shall not be a Member of the Court Martial or be a Judge Advocate, the insertion of Note 2 to Rule 102 cannot be held to have the effect of a rule or regulation. It appears that the 'Notes' have been issued by the authorities of the Armed Forces for the guidance of the officers connected with the implementation of the provisions of the Act and the Rules and not with the object of supplementing or superseding the statutory Rules by administrative instructions....

13. We should briefly refer to the Constitution Bench decision in Ram Sarup v. Union of India AIR 1965 SC 236 in which several issues had been formulated, one of which was the vires of Section 125 of the Army Act. The Appellant had been found by the General Court Martial to be guilty of the murder of three Army personnel. Article 33 of the Constitution, which empowers Parliament to determine to what extent any of the Fundamental Rights of members of the Armed Forces could be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them, was duly taken into consideration. The vires of Section 125 of the Army Act were upheld observing that it is not discriminatory and does not infringe Article 14 of the Constitution. Their Lordships observed that even though Section 125 did not itself circumscribe the circumstances in which discretion to try an accused by General Court Martial or by a referral to a Civil Court, there is sufficient material in the statute to serve as guidance in the matter. This decision has been followed in Lt. Col. Prithi Pal Singh Bedi v. Union of India and more recently in Union of India v. Ex. Flt. Lt. G.S. Bajwa . It appears to us that Section 120(2) of the Act also delineates the limits within which a Summary Court Martial can be held, but this provision is mostly ignored if not deliberately breached by the Respondents.

14. The contention on behalf of the Respondents is that Notes 5 appended to Sections 116 and 120 are not statutory notes and have been issued by the Authorities merely for the guidance of the officers responsible for the implementation of the Act and Rules. The Notes, the submission continues, is intended neither to supplement nor to supersede the statutory Rules by this means of administrative instructions. Our immediate response is that this is contrary to the stand taken by the Respondents themselves in Charanjit S. Gill, which we have extracted above for highlighting this very point. We are in no doubt that if the Notes are inconsistent with the Act or Rules or Regulations we would immediately strike them down and render them legally inefficacious. However, beyond articulating this well established legal proposition, learned Counsel for the Respondents have not shown in what manner the Notes supplement or supersede any legal provision. It seems to us that the Rules are merely clarificatory and have always been relied upon and applied by the Army Authorities as per their own submission in Charanjit S. Gill before the Supreme Court. Reference by learned Counsel for the Respondents to the definition of CO found in Regulation 9 of the defense Services Regulations, Regulations for the Army, in our view militates against the position posited by them. It reads -

Except where otherwise expressly provided in these Regulations, the CO of a person subject to the Army Act is either:

(a) the officer who has been appointed by higher authority to be a commanding officer while able effectively to exercise his power as such, or (b) where no appointment has been made, the officer who is, for the time being, in immediate command of --

(i) the unit to which the person belongs or is attached to, or

(ii) any detachment or a distinct sizeable separate portion of a unit with which the person is for the time being serving, and in respect of which it is the duty of such officer, under these Regulations or by the custom of the service, to discharge the functions of a Commanding Officer.

15. Before venturing further into the question of the nature and need for holding SCMs, we propose to respond to the submissions made by Ms. Barkha Babbar, learned Counsel for the Respondents. She has, inter alia, contended that Sections 116 and 120 empower the holding of an SCM by the CO of any Corps, Department or Detachment of the Regular Army. These statutory provisions do not carve out any exceptions and, therefore, there is no scope for undertaking this exercise merely because it suits the Petitioner to so contend. We have also perused the definition of Corps, Department and Detachment and regretfully find that they do not shed any light on the conundrum before us. Ms. Barkha Babbar has argued that the Regulations for the Army, being compilations of the Administrative Instructions, cannot, on their own confer on any officer/authority to conduct an SCM; that unless Section 120 of the Act permits trial by SCM of a person on detachment to a unit, even paragraph 381 cannot validate such a trial. According to her, even the trial of a deserter on detachment to another unit, would be illegal. Having made this submission we are unable to appreciate how Ms. Babbar can logically contend that - 'para 381 of the RA provides for trial of Deserters on attachment and indisputably that is a legal mode of trial by SCM. Since para 381 of the RA is non-statutory, being merely administrative instructions, the trial by SCM of deserter on attachment to be valid has to fall within the purview of Section 120(3) of the Act. As a corollary, if a deserter on attachment can be validly tried by SCM, then it becomes clear that a person attached to another unit can be validly tried by SCM'. It seems to us that, even assuming that this interpretation does not militate against the stand of the Respondents, the situation remains nebulous and uncertain, necessitating and requiring elucidation by means of Notes.

16. The absence of the words 'unit to which the person belongs or is attached to' is conspicuous by its absence in the preceding Sub-regulation 9(a). Accordingly, if an officer has been appointed as the CO only he shall exercise powers assigned to the CO and no one else. Only in the absence of such an appointment can an officer temporarily appointed as CO either of the Unit to which he belongs or to the Unit to which he is attached exercises the powers normally reserved to the CO. Furthermore, if the Act, Rules or Regulations postulate that a CO of a Unit to which a person may be attached, can exercise the powers of the person's regular CO there would scarcely have been any reason or requirement to incorporate either of the subject Notes 5. Conversely stated, the need to clarify that in a case of alleged desertion the CO of a Unit to which the person may be attached, that too if the Unit falls within a relatively select category is in the circumstances spelt out in Regulation 381, shall be authorised and competent to conduct an SCM, cannot but indicate that he would otherwise have not been so empowered. Clearly these are exceptions to the norm and therefore require to be spelt out.

17. Counsel on both sides of the Bar have made extensive arguments on the provenance, origin, nature and need for holding SCMs. We have seen further that even though India is a Republic, the rights of Army personnel remain emasculated to a substantial and significant extent. Personnel of the Armed Forces are entitled as much as any other citizen to the protection of the Constitution of India. The Supreme Court had observed over thirty years ago and reiterated regularly thereafter (yet regretfully unheeded by the Respondents) that service in the Armed Forces can no longer be viewed as a support or adjunct of the Rulers. We cannot do better than to reproduce the following extract from the decision in Lt. Col. Prithi Pal Singh Bedi :

44. Reluctance of the apex court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act are not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering Armed Forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration, that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. In the larger interest of national security and military discipline Parliament in its wisdom may restrict or abrogate such rights in their application to the Armed Forces but this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty-oriented constitution. Personal liberty makes for the worth of human being and is a chershed and prized right. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial by a judge of unquestioned integrity and wholly unbiased. A marked difference in the procedure for trial of an offence by the criminal court and the court martial is apt to generate dissatisfaction arising out of this differential treatment. Even though it is pointed out that the procedure of trial by court martial is almost analogous to the procedure of trial in the ordinary criminal courts, we must recall what Justice William O'Douglas observed : '[T]hat civil trial is held in an atmosphere conducive to the protection of individual rights while a military trial is market by the age-old manifest destiny of retributive justice. Very expression 'court martial' generally strikes terror in the heart of the person to be tried by it. And somehow or the other the trial is looked upon with disfavor.' In Reid v. Covert, Justice Black observed at page 1174 as under: Courts martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of 'command influence'. In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings ' in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges.

Absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counterpart civilian convict can prefer appeal after appeal to hierarchy of courts. Submission that full review of finding and/or sentence in confirmation proceeding under Section 153 is provided for is poor solace. A hierarchy of courts with appellate powers each having its own power of judicial review has of course been found to be counter-productive but the converse is equally distressing in that there is not even a single judicial review. With the expanding horizons of fair play in action even in administrative decision, the universal declaration of human rights and retributive justice being relegated to the uncivilised days, a time has come when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body composed of non-military personnel or civil personnel. Army is always on alert for repelling external aggression and suppressing internal disorder so that the peace-loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of this order. And it must be realised that an appeal from Ceaser to Ceaser's wife' confirmation proceeding under Section 153 'has been condemned as injudicious and merely a lip sympathy to form. The core question is whether at least there should be one appeal to a body composed of non-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged. Judicial approach by people well-versed in objective analysis of evidence trained by experience to look at facts and law objectively, fair play and justice cannot always be sacrificed at the altar of military discipline. Unjust decision would be subversive of discipline. There must be a judicious admixture of both.

18. Historically, the origin of SCM is traceable to the widespread agitations and insurgency which occurred in 1857, which British or imperialist historians labelled as the Mutiny, and Indian or nationalist historians referred to as the first War of Independence. We do not propose to comment on the nomenclature or epithet that should be adopted. It was ubiquitously believed by the Raj administrators that the 1857 events were attributable in large measure to the fact that the CO did not possess the power to summarily punish the transgressors, and thereby squelch rebellion, revolt or mutiny quickly and ruthlessly, if required. SCMs were introduced in 1869, with the avowed purpose of prompt and swift award of punishment to indisciplined sepoy malefactors. Indeed, it is not surprising that an SCM cannot be convened where the accused is an officer or junior commissioned officer; rebellion from this cadre had been rare. In Charanjit S. Gill the absence of a regular appeal from the sentence of an SCM had already been highlighted. Even post independence, Parliament has substantially repeated the provisions of the Indian Army Act, 1911 while enacting the Army Act. Contrast this state to the position in the United Kingdom in terms of the Armed Forces Act, 2006 - (a) Section 54 requires prior permission of a SCM by an authority of the rank of Rear Admiral, Major General or Air Vice Marshal; (b) under Section 129 the CO must afford the accused the opportunity of electing a trial by Court Martial; (c) Section 141 recognizes the right of an appeal in respect of a charge which has been heard summarily to the Summary Courts Appeal; (d) Section 239 contemplates the reduction in sentences if an offender pleads guilty to a service offence; (e) Section 253 spells out the duties of the Summary Appeal Court; (f) Section 132 prescribes the powers of punishment imposable by the CO which includes detention up to 90 days, reduction in rank, fine etc. but does not empower dismissal from service, unlike in India.

19. Learned Counsel for the Petitioners have also contended that there is a material difference between the provisions contained in the Indian Army Act, 1911 and the Army Act. It is pointed out that Section 64(I)(b) states that the SCM may be held by a CO of any British Corps or Detachment to which details subject to the Act are attached. Section 116 of the Army Act, however, does not contain any such provision. The argument is that it is palpably evident that a departure from the earlier law was intended and hence the power of the CO of the Corps or Detachment to which a person was 'detached' had been withdrawn.

20. An SCM can legitimately be convened where there is grave and compelling cause for taking immediate action which would be defeated if reference to a District Court Martial or Summary General Court Martial is made. In other words, holding of an SCM is the exception and not the rule. From the multitude of possible offences it is only those envisaged in Sections 34, 37 and 69, that can be tried by an SCM, further fortifying the exceptional and extraordinary character of an SCM. We think it necessary to underscore that it is not proper to convene an SCM merely because the offence(s) with which a sepoy of the force is charged finds mention in the enumeration contained in these three Sections. What is of preeminence in convening an SCM is that it should be found imperative that immediate action is manifestly necessary. Therefore, it is essential that this factor, viz. need to hold a trial immediately, is articulated and reasoned out in writing in the order convening the SCM. Failure to do so would create good reason to quash the SCM itself. Routinely, and certainly far too frequently, the sentence passed by SCMs violates the spirit of Regulation 448(c) (supra) thereby taking away the sepoys' livelihood without affording them the normal procedural protections of law.

21. In the United States of America the position is similar to that obtaining in the United Kingdom. The function of the SCM is to promptly adjudicate minor offences under a simple procedure expecting the SCM to impartially inquire into the merits of the case on both sides. The maximum punishment awarded by an SCM does not include death, dismissal, dishonourable or bad conduct discharge, hard labour without confinement for more than 45 days, restriction to specified limits for more than 2 months or forfeiture of more than 2/3rd of one month pay. If the accused is above the 4th enlisted pay grade, the SCM can only reduce him to the 4th enlisted pay grade. Rule 1303 gives the right to the accused to object to the trial by an SCM. This comparison between the SCM regime prevailing in India, and that presently existing in the United States and/or United Kingdom presents a sad picture, which portrays that the law in India remains a vestige of the colonial era. 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.

22. We shall endeavor to discharge this duty by enunciating firstly that it is the CO of the Unit to which the accused belongs who is empowered to convene an SCM. This is not a empty formality or pointless punctilio. There is an abiding and umbilical connection between the CO and his regime. The Ranks have always looked up at their CO as the father figure who will be as concerned with their welfare as with their discipline. This is the only conclusion that can be arrived at on a holistic reading of the Army Act, Rules and Regulations.

23. As per our analysis above, the exception to this Rule is restricted to the case of Deserters and that too where the CO of the Unit to which they belong is not readily and easily available. Secondly, an SCM must be the 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. Obviously, where the delinquent or the indisciplined action partakes of an individual character or has civil law dimensions, an SCM should not be resorted to. Delay would thus become fatal to an SCM. Thirdly, the decision to convene an SCM must be preceded by a reasoned order which itself will be amenable to Judicial Review. We are certain that once this formality is complied with, the inevitable disregard of the accused rights for a fair trial shall automatically be restricted to those rare cases where the interests of maintaining a disciplined military force far outweigh the protection of the minor civil rights of a citizen of India.

24. In this analysis of the law in the context of the factual matrix spelt out in the Petitions, we set aside the verdict of the impugned SCMs on the short ground that it was not convened, constituted and completed by the CO of the Unit to which the Petitioner belonged. We are fully mindful of the fact that in Vishav Priya Singh's petition the situation is a complex one, inasmuch as the allegations have been levelled against the CO of the Unit to which the Petitioner belongs. If the CO were to himself convene the SCM it would tantamount to his being a judge in his own cause. It has so often been quipped in the portals of the Court that hard cases should not make bad law. Therefore, solution may lie in constituting any other Court Martial, on an emergency footing if the circumstances so dictate. None of the Petitioners have been charged with the most reprehensible offence conceivable in the Armed Forces, that is of Desertion. Even if so charged it would have to have been further established, as a pre-condition for the holding of an SCM by the CO of the Unit to which the Petitioner was attached, that the CO of the Unit to which the accused belonged was serving in a high altitude area, or overseas or engaged in counter-insurgency operations or active hostilities or in Andaman and Nicobar Islands. We clarify that since the Trial is non est ,the Respondents shall be free to proceed against the Petitioners de novo in accordance with law.

25. Petitions are allowed. Pending applications, if any, are disposed of. There shall be no orders as to costs.