Court martial law archaic, says S.C.

NEW DELHI, APRIL 30. The Supreme Court has termed the law governing general court martial (GCM) in the Army archaic and criticised the Government for not bringing in changes in the Army Act.

``Even today the law relating to the armed forces remains static requiring changes keeping in view the apex court's observations made in 1982, the constitutional mandate and the changes effected by other democratic countries,'' a three-judge Bench said, delivering the judgment in an appeal against GCM proceedings.

``The time has come to allay the apprehensions of all concerned that the system of trial by court martial was not the arch type of summary and arbitrary proceedings,'' said the Bench, comprising Mr. Justice G. B. Pattanaik, Mr. Justice R. P. Sethi and Mr. Justice S. V. Patil.

Referring to the 1982 judgment expressing concern over inadequacies in the Army Act, Mr. Justice Sethi said ``despite the lapse of two decades, neither Parliament nor the Central Government appears to have realised its constitutional obligations, as expected by this court.'' The only change carried out was the amendment of Rule 62 providing that after ``recording the finding in each charge the GCM shall give brief reasons in support thereof''.

Mr. Justice Sethi, writing the judgment, said that in the absence of effective steps taken by Parliament and the Centre, the courts were duty bound to ``protect and safeguard the constitutional rights of all citizens, including those enrolled in the armed forces.'' However, the courts should not forget the paramount need for maintaining discipline in the armed forces. ``Merely by joining the armed forces a person does not cease to be a citizen so as to be wholly deprived of his rights under the Constitution.'' As far back as in 1982 this court drew the attention of the Government to the glaring anomaly that court martials did not write a brief reasoned order in support of their conclusions, even in cases in which they imposed death sentence.

``This must be remedied in order to ensure that a disciplined and dedicated Indian Army did not nurse a grievance that the substance of justice and fair play is denied to it,'' the Bench said.

Another anomaly was the ``absence of even one appeal with power to review evidence, legal formulation, conclusion and adequacy or otherwise of punishment given by a GCM.''

``This is a glaring lacuna in a country where a counterpart civilian convict can prefer appeal after appeal to a hierarchy of courts,'' it said.

In the present case, the Bench was examining the validity of GCM proceedings in which a judge-advocate was junior in rank to the accused.

Mr. Justice Sethi said, ``a judge-advocate though not forming part of the court, yet being an integral part of it, is required to possess all such qualifications and be free from the disqualifications which relate to the appointment of an officer to the court-martial.''

Upholding the contention of the accused, Charanjit S. Gill, the Bench said, ``a judge-advocate appointed with the GCM should not be an officer of a rank lower than that of the officer facing trial unless the officer of such rank is not available and the opinion regarding non-availability is specifically recorded in the convening order.''

Dismissing the appeal of the Union of India, the apex court upheld the Calcutta High Court judgment quashing the GCM proceedings against Gill. The High Court had allowed the Army to initiate fresh court-martial proceedings, if any, in accordance with the law.

However, Mr. Justice Sethi made it clear that this finding of the apex court would be applicable only to cases pending now and future cases before courts and would not apply to judgments of the GCM which had attained finality.

- PTI

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