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Report No. 169

Chapter III

Observations of The Hon'ble Supreme Court of India

3.1. Lt. Col. Prithi Pal Singh's case.-

As far back as 1982, the Supreme Court had, in its decision in Lt. Col. Prithi Pal Singh v. Union of India, 1982 (3) SCC 140 pointed out a glaring deficiency in the Army Act viz. absence of the remedy of appeal against the orders of courts martial. The court also pointed out the changes brought about in recent decades on this subject both in U.K. and U.S.A. and observed that Parliament should bring about similar legislation consistent with the changed value system. They also pointed out the desirability of recording reasons by the court martial in support of their conclusions and orders, it would be appropriate to notice the relevant observations of the Supreme Court in paragraphs 44 and 45 of the said judgment:-

"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 feature 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, (1979) 1 SCR 392 (495), 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 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 cherished 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.

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 hierarcy 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 Cesser 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. And nothing revolutionary is being suggested. Our Army Act was more or less modelled on the U.K. Act. Three decades of its working with winds of change blowing over the world necessitates a second look so as to bring it in conformity with liberty-oriented constitution and rule of law which is the uniting and integrating force in our political society. Even U.K. has taken a step of far reaching importance for rehabilitating the confidence of the Royal Forces in respect of judicial review of decisions of court martial. U.K. had enacted a Court Martial (Appeals) Act of 1951 and it has been extensively amended in Court Martial (Appeals) Act, 1968. Merely providing an appeal by itself may not be very reassuring but the personnel of the appellate court must inspire confidence.

The court martial appellate court consists of the ex officio and ordinary judges of the Court of Appeal, such of the judges of the Queen's Bench Division as the Lord Chief Justice may nominate after consultation with the Master of the Rolls, such of the Lords, Commissioners of Justiciary in Scotland as the Lord Chief Justice generally may nominate, such Judges of the Supreme Court of the Northern Ireland as the Lord Chief Justice of the Northern Ireland may nominate and such of the persons of legal experience as the Lord Chancellor may appoint. The court martial appellate court has power to determine any question necessary to be determined in order to do justice in the case before the court and may authorise a new trial where the conviction is quashed in the light of fresh evidence.

The court also has power, inter alia, to order production of documents of exhibits connected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports and the like from the members of the court martial or the persons who acted as Judge-Advocate, order a reference of any question to a Special Commissioner for Enquiry and appoint a person with special expert knowledge to act as an assessor (Halsbury's Laws of England, 4th Edn., paras. 954-55, pp. 458-459). Frankly the appellate court has power of full judicial review unhampered by any procedural claptrap. Turning towards the U.S.A., a reference to Uniform Code of Military Justice Act, 1950, would be instructive.

A protrision has been made for setting up of a court of military appeals. The Act contained many procedural reforms and due process safeguards not then guaranteed in civil courts. To cite one example, the right to legally qualified counsel was made mandatory in general court martial cases 13 years before the decision of the Supreme Court in Gideon v. Wainwright, 372 US 335 (1963). Between 1950 and 1968 when the Administration of Justice Act, 1968 was introduced, many advances were made in the administration of justice by civil courts but they were not reflected in military court proceedings. To correct these deficiencies the Congress enacted Military Justice Act, 1968, the salient features of which are:

(1) a right to legally qualified counsel guaranteed to an accused before any special court martial;

(2) a military judge can in certain circumstances conduct the trial alone and the accused in such a situation is given the option after learning the identity of the military judge of requesting for the trial by the judge alone.

A ban has been imposed on command interference with military justice, etc. Ours is still an antiquated system. The wind of change blowing over the county has not permeated the close and sacrosanct precincts of the Army. If in civil courts the universally accepted dictum is that justice must not only be done but it must seem to be done, the same holds good with all the greater vigour in case of, court martial where the judge and the accused done the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremovable."

(Emphasis supplied)

The Supreme Court concluded with the following observations:-

"We, therefore, hope and believe that the changes all over the English-speaking democracies will awaken our Parliament to the changed value system. In this behalf, we would like to draw pointed attention of the Government to the glazing anomaly that courts martial do not even write a brief reasoned order in support of their conclusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair play is denied to it."

(Emphasis supplied)

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