Summary Court Martial should be used rarely, rules Supreme Court

The Supreme Court has ruled that the power of Summary Court Martial (SCM) provided in the Army Act, 1950 should be exercised very rarely and only when “immediate action” is called for..The Court also held that it is not necessary that an SCM be held by the Commanding Officer of the unit to which the accused belongs; it could also be held by the CO of the unit to which the accused is attached to..The judgment was delivered by a Bench comprising Chief Justice TS Thakur and Justice UU Lalit in a batch of appeals challenging the decisions of the Delhi High Court, the Rajasthan High Court and the Armed Forces Tribunal, Kolkata..The court considered two fundamental questions at length..The first was regarding the circumstances in which an SCM can be convened as opposed to a General Court Martial. The second pertained to whether the CO of a unit to which an accused has been sent on attachment can convene an SCM..When can SCM be convened?.Responding to this first question, the Court discussed the provisions of Army Act at length. Section 116 of the Act empowers the CO of any Corps, Department and Detachment of the regular Army to hold an SCM. Unlike other court martials where at least three officers make up the concerned court martial, a summary court martial proceedings is conducted by the CO alone..The Court, therefore, noted that the Act has given drastic power to one single individual, namely, the CO who alone is to constitute the Court..“No doubt, this power comes with restrictions insofar as the power to award sentence is concerned in terms of sub-Sections (4) &(5) of Section 120. However even with such restrictions the power is quite drastic. The reason for conferment of such power is obvious that in order to maintain discipline among the soldiers and units, the CO must have certain special powers, for it is the discipline which to a great extent binds the unit and makes it a co-hesive force.”.The Court, therefore, endorsed the view of the Delhi High Court that the power of SCM should be exercised rarely and only when immediate action is called for..“The High Court of Delhi was therefore completely correct in observing that such power must be exercised rarely and when it is absolutely imperative that immediate action is called for.”.The Court also categorically ruled that whenever an accused is sought to be tried by an SCM,.“the satisfaction in that behalf must either be articulated in writing or be available on record, specially when the matter can be considered on merits by a tribunal, with the coming into force of the Armed Forces.”.The apex court dealt at length with what kind of offences can be tried by an SCM..Relying on Section 120 and Rule 22 of the Army Rules, 1954, it held that any offence can be tried by an SCM. However, certain offences can be tried only after a reference a reference to the officer who is otherwise empowered to convene a DCM in regular course or an SGCM while on active service..These are offences under Section 34, 37 and 60 of the Army Act..“Sub-Section (2) of Section 120 prescribes that in respect of such stipulated offences, in normal circumstances, an SCM shall not try the accused without making a reference to the officer who is otherwise empowered to convene a DCM in regular course or an SGCM while on active service..This provision thus categorizes the offences in two compartments i.e. those which require a reference and those which do not. This distinction is also noticeable from sub Rule 2 of the Rule 22 which mandates that CO shall not dismiss a charge in respect of offences which require a reference to superior authority in terms of Section 120 (2) of the Act… The aforesaid provision in Section 120(2) requiring a reference to the superior authority which thought is again echoed in proviso to Rule 22 (3) of the Rules, is a salutory provision and a check on the exercise of drastic power conferred upon a CO and must be scrupulously observed.”.It held that any deviation from this requirement of reference must be views seriously and a case of such deviation should be made out on record..Based on the above, the Court ruled that the portion of the Delhi High Court judgment which ruled that only offences under Sections 34,37 and 69 of the Act could be tried by an SCM is incorrect and that any offence can be tried under SCM..Which CO is empowered to hold an SCM?.The second question which the court considered was regarding the powers of CO to hold a SCM – more specifically which CO is empowered to hold an SCM, the CO of the unit to which an accused belongs or the CO of unit to which he has been sent on attachment..For this purpose, the Court relied on Section 116 of the Army Act and Regulation 9 of the Defence Service Regulations (DCR)..It held that the expression “Commanding Officer” in Section 116 is not qualified by any explanation that he must be the CO of the Unit to which the accused belongs. Relying on Rule 9 of DCR that the Court held that it is not essential that an SCM should be convened by 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 on attachment for the purposes of trial, to try such accused by convening, constituting and completing SCM in a manner known to law i.e. strictly within the confines of Sections 116 and 120 of the Act and other Statutory provisions.”.Interestingly, the court as a parting note referred to the recommendation of the Committee of Experts appointed by the Defence Minister to review service and pension matters including strengthening of institutional mechanisms related to redressal of grievances..The Committee had recommended that the power of SCM should be used sparingly, preferably only in operational areas where regular trial might not be “practicable”. The Court said that this recommendation “sums up the approach that needs to be adopted, quite well.”.Read the full judgment below.