Under the Army Act, ‘summary court martial’ allows “any Commanding Officer” (CO) to act as judge against a jawan below the officer rank. It is traced to the 1857 Mutiny as a British practice to deliver “prompt and swift award of punishment to indisciplined sepoy malefactors”.

A division bench led by Justice Vikramjit Sen today termed the mode a “sad remnant of the Colonial era” and issued strictures against the practice.

“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, ruthlessly,” Justice Sen observed.

As per the Act, a soldier accused of indiscipline can be “tried” by a CO of any unit or regiment. If found guilty, the soldier would receive a sentence of up to a year’s rigorous imprisonment and dismissal from service.

Criticising court martial proceedings in general as a “closed-door affair” in need of a breath of fresh air, the Bench asked for the need for military disciplinary proceedings in lines with civil trials. There should at least be one higher non-military body for court-martialled soldiers to approach for judicial review, the court said.

“The comparison between the summary court martial regime prevailing in India, and that presently existing in the US and/or the UK presents a sad picture, which portrays that the law in India remains a vestige of the Colonial era,” the court noted. Unlike its Indian counterpart, the UK Armed Forces Act, 2006 does not envisage dismissal from service if found guilty in a summary court martial, the court said. The UK Act prescribes detention up to 90 days, reduction in rank, or merely a fine.