WHAT AILS THE VALIENT INDIAN ARMY?
Rohit Kumar,
Advocate, High Court,
161, Pritam Nagar, Near Kabir Mandir X-ing,
Allahabad-211001, Ph: +91-532-2233606,
Fax: +91-532-2231234, Mob; +91-94153-17013
Of late their have been virtual upheavals not only in the media, the fourth Estate, but also in the Parliament about shortfall of the officers cadre in the Indian Army. In order to buttress my contention I wish to record that even the Chief of the Army Staff, General S Roy Choudhary has admitted that there is a shortfall of 12,500 officers in the present day Indian Army, which by any statistic meant that the Army was managing with the lack of the lower echelons comprising to the level of deficiency of 1/3rd of the officers cadre. Even lately General Khanna, Chief of the Desert Corps, somewhere in the Rajasthan Sector, had candidly admitted that Army was running short of the officers cadre which he attributed to the lack of perks and less enthusiasm of the youth of the country to don uniform, where not only hazard, but also grave risks to the life were part of the game which proposition I wish to contradict, but the same shall be done in the succeeding paragraphs.
It is imperative to recall that during the period when General KV Krishna Rao was the Chief of the Army Staff, presently a Governor of the turbulent State of Jammu & Kashmir, a question was raised by then Defence Minister of India on the trifling issue of why the cream of the society was not opting to enter the distinguished and adventurous job of defending the country’ as also moot question which came up as to why large number of disciplinary cases were cropping up leading to court Martial’s, mostly Summary Court Martial and also the result that large number of cases were going to the courts of law. General KV Krishna Rao as part of the establishment had relied upon gimmickry of statistical analysis, then attempted to satisfy the Raksha Mantri with the General’s bureaucratic note bearing No. 18899/AG/DV-I obviously forgetting that our forces are very different and special organisation which deals with the defence of the nation and to a great extent the survival of nation depends on the might of the armed forces, which includes moral as well as the best possible management of the human resources which/who lay down their lives for the cause in the name of profession.
None have bothered to look into the serious maladies which have continued to exist because of the firstly, antiquated system of judicial prudence Alien Rulers enacted Indian Army Act, 1911 which was meant for Indian subjects, when we were slaves, containing draconian provisions. When we won the independence Indian Government headed by late Pt. Jawaharlal Nehru, the Prime Minister of India, decided to retain the same Act, with same draconian provisions, except deleting the word ‘Indian’ and renaming it as ‘Army Act, 1950’ [hereinafter denoted to as the Act], secondly, the perks and emoluments of personnel donning uniform remain the same for decades till 1975-76 and thirdly due to changed situation and environment and creation of East and West Pakistan, country’s frontier got enlarged. This apart from hostile relationship with China on the North frontier created new frontiers with hostile climatic conditions which caused not only hazard to the lives of the troops but also exposed them to physical injuries and disabilities, fourthly, the corruption in the society and the feeling that one living in the peace area as a civilian during the job in a peaceful living condition but also such official could manage better living condition, and as such other perks and facilities available to the civilian counterparts and so on, which also became serious impediment in the thought process of the cream of the youth and obviously the youth preferred to have the first choice as IAS, IPS, IFS/Private Enterprises in the public sectors and so on. The armed forces were eighth choice. By the way, if statistics can be compiled it can be safely seen – nay – concluded that all those national leaders who in their proclamations from the party platform exhort the youths of the nation to join armed forces and as a ritual prays gallant services of the defenders of the nation, but the same very men who are at top of the party to the Government do never allow their own wards either to venture entering armed forces or even daring marrying their own daughters to be same gallant soldiers.
Now with my experience I wish to bring out salient features due to which today the cream of the society abhors joining the armed forces and if they do so it is only as a last recourse if they find that they have no other venue. According to my experience the basis reasons are LACK of PROPER JUDICIAL SYSTEM AND ITS MANAGEMENT.
(a), That armed forces have an altogether different system and identity. Consequently it has its own separate Act known as Army Act 1950, Rules as Army Rules 1954 and Defence service Regulations (Regulations for the Army) 1987 [hereinafter denoted as DSR (Army) 1987], as also the Government issues Army Instructions and Government policy letters. Similarly the Chief of the Army Staff issues Army orders, Army Headquarters policy letters and so on. Based on this, armed forces have their own courts of law which are known as General Court Martial [hereinafter denoted as GCM], Summary General Court Martial [hereinafter denoted as SGCM], District Court Martial [hereinafter denoted as DCM], Summary Court Martial [hereinafter denoted as SCM] which are known as Court Martial’s manned by Army officers with their service being minimum 2 years. Such men by and large do not have any legal background but a GCM can sentence a person subject to the Act to death penalty.
(b), Apart from Court Martial’s, there are provisions under Sections 80, 83, 84 and 85 of the Act for summary disposal of the charges against a person subject to the Act by appropriate authority.
(c), Conduct of the Court Martial’s have been recovered by way of rules framed in the Army Rules 1954 [hereinafter referred to as the Rules], but which are by and large not followed not only in letter but what to say of spirits, and in the majority wish of the top echelon prevails. highhandedness becomes the order of the day.
(d), Against any trial the accused person as a right to make a petition under section 164 of the Act, one before confirmation of the Court Martial’s proceedings and the other one after confirmation of the proceedings but the moment a Court Martial Proceeding is confirmed (save in the case of SCM proceeding which under Section 161 of the Act, does not require any confirmation) the accused, if sentenced to Jail imprisonment, is dumped in the jail without allowing him to avail the statutory provisions contained in Section 164 (2) of the Act. It is pertinent to highlight that even Para 365 (j) of the DSR (Army) 1987 has laid down that the petition under Section 164 of the Act shall be disposed of and all attempts should be made to dispose it of within 30 days, but it always remains in the cold storage, as such the person jailed keeps on languishing in jail and is barred from seeking judicial protection for want of rejection of his statutory petition preferred under Section 164 of the Act.
(e), In any civilized nation, can it happen that a person who has been sentenced to imprisonment in civil jail by the sentence of a Court Martial, yet his pre-confirmation petition is not decided though mandatorily required under Section 164 (1) of the Act, proceedings confirmed and person lodged in jail. Often copy of the Court Martial proceedings especially in the case of SCM’s, despite gazette of India notification 169 of 15 May, 1987 reproduced in Army order 51/87, is not given. In large number of cases, the accused is made to sign that he does not wish to obtain a copy of the SCM proceedings which results into ………………. gallant soldier remaining in jail without being permitted to seek remedy available to him either from the Army echelons or courts of law.
ALTERNATIVE REMEDIES
The Army Act has catered for seeking remedy for any wrong done to the soldier under Section 26 of Army Act, 1950, for which regulations had been made in Para 361 of the DSR (Army) 1962. It catered for a non-statutory complaint to reach the Chief of the Army Staff within 45 days and to the Central Government within.
60 days, which has now been amended and incorporated in Para 364 of the DSR (Army) 1987, which has……….. stipulated that statutory complaint be processed and progressed and if the aggrieved does not receive a decision in six months period he may send a copy of the complaint directly to the formation addressed i.e. Ministry of Defence in the case of statutory complaint and the Chief of the Army Staff in the case of non-statutory complaint. Meanwhile contemplated action against the soldier persists/often punishments completed, there being no system of stay. Which is a serious malady-must be curbed. Once a statutory complaint has been preferred/accepted, impugned order/action must remain …… … ……………
Similarly for officers Section 27 of the Act, has laid down the statutory provision for seeking redress of grievances. Here also Para 364 of DSR (Army) 1987 governs the rules of the game, and in large number of cases the statutory complaint preferred remains in the “waste paper basket” of the Army Headquarters by and large in the Military Secretary’s Branch of Army Headquarters. Due to failure of system of alternative remedy, firstly by the higher echelons of the Army delaying the decision and secondly even if the decision is communicated, it remains “one line rejection” – it often states “considered and rejected” and now an addition is also made, “as it lacks substance”. In this context the law settled by the Hon’ble Supreme Court of India by a Five Judges bench reported in AIR 1990 SC 1984 is ignored altogether. When I had on 06 Oct, 1994 apprised the contents of the AIR 1990 SC 1984, and requested for issue of suitable directions to the Lower Echelons of Army for its compliance. Chief of Army Staff through his Military Secretary who is a Lieutenant General issued a direction vide MS No. 37625/MS, complaints dated 02 Nov 1995 which in substance meant FORGET ABOUT LAW SETTLED BY Supreme Court. As admitted by the then COC-in-C, Central command, who was formerly a Military Secretary himself till May 1994, 9,000 statutory complaints were pending in the Army Headquarters, Military Secretary’s Branch-a very dangerous syndrome indeed, that top echelons in the Indian publically admitted that 12,500 officers are deficient, 14000 cases pending in Courts and another 9,000 officers statutory complaints were pending, meaning there by half of the Army officers strength has become for practical purposes, non-functional as a person who feels wronged and submits statutory complaint and does not get redressed, remains in the state of demoralisation.
LACK OF ACCOUNTABILLTY
In the cases of officers/men donning uniform, seeking redress of their grievances through the medium of statutory complaints, have to submit the same through the immediate superior who in majority of the cases is the person against whom such complaints are preferred, offers ex-parte “comments” and then records whatever he feels based on his whims and fancies, and is never made accountable with the result a distorted version moves up.
Similarly the Statutory complaint against the wrong keeps on pending where as action are taken against the initiator of the complaint there being no provision of staying the action against which statutory complaint has been preferred which often results into the person continues to keep on suffering and nourishing grievances not only against the person-his oppressor-but also the organisation itself.
Similarly, the immediate superior as the Commanding Officer relying upon his personal dislike not on the professional competence of the personal records his views in the Annual Confidential Report [hereinafter denoted as ACR] of the person so rated and as such the ACR has become a tool to brow-beat the subordinates which also contributes to a great extent causing demoralisation in the ranks of officers/ subordinates.
PATTERN OF ACR: LACK OF COURAGE
The Indian Army being the fourth largest Army of the world had a system of reporting of the ACR by superior officers and showing to the officer reported upon.
In the year 1975 a decision was taken on a trial basis not to show the contents of the ACR to the officer reported upon. Unless it contained Adverse/Remedial remarks. After couple of years of trail, it was found that it was not workable and generated more “ill-will” and mutual distrust, as a result thereof the same was shelved, and ACR were again being shown to the officer reported upon.
In the year 1984 once again a decision had been taken by Lt Gen Sahdev Sehgal PVSM, the Military Secretary, of course with the blessings of Gen AS Vaidya, the then Chief of the Army Staff, not show the ACR to the Army officers (as was the practice in the civilian officers case). Thus equating them with the civilian officers.
A retired service Chief commented that in case if the Initiation officer under whom the officer reported upon is serving, does not have the “moral courage of conviction” to face the officer under his command across the table and tell him by way of showing the report recorded in the latter’s ACR, what he feels/has recorded in the officer’s ACR, how would he be able to face him in the “Thick of Battle”, what would be the effect of such a situation on the out come of war, when we do not have very friendly neighbours, due to acquire nuclear capability?
MAY SOME ONE IN AUTHORITY INTERVENE, TO SAVE THIS FINEST WAR MACHINE MEANT FOR THE DEFENCE OF THE COUNTRY.
CRITERIA APPOINTMENTS.
It has been found that in large number of cases of officers they are graded “Defer/Withdrawn” due to their not having been tried on criteria appointments or non/late receipt of ACRs over which the officer has no control, In such cases instead of making the officer suffer, the official due to whose negligence such a situation arose should be made Accountable. This would go a long way in restoring the faith of the officer in the system, COMPLAINTS MADE against the Branch viz MS/Directorate concerned should be dealt with by the AG/Addl AG/Ministry of Defence.
VIOLATION OF HUMAN RIGHTS
As has already been brought out in this article that Army Act, 1950 was modeled on the pattern of British Government Indian Army Act, 1911. Which was for the purpose of keeping the Indian slaves under the strong thumb of the Britishers then ruling India, the same provision is continued even in the modern civilised society needed drastic change – lack of it or want of it has resulted into thousands of cases of violation of human rights. As an example if a Commanding Officer does not like the fact of a person serving under him, he often resorts to just filling up a form which is known as AFMS-10, declares the person as mentally unsound, places him under arrest and sends him to the Military Hospital where such person is given shock treatment and often he comes out as a mental wreck, save in the case of their being a human Doctor present. In one of the case of a Junior Warrant Officer [hereinafter denoted as JWO], since this JWO had questioned the conduct of one of the Sikh Officer (who was later on court martialled) during operation Blue star, the entire establishment was against this JWO. They wanted to make his a case of AFMS-10 and despite medical report from Nagpur Medical College, the AOC concerned was trying to brand this JWO as a mental case which could be prevented only because of the intervention of Hon’ble Mr. Justice SC Verma of the Allahabad High Court. In the resurgeant India, the Army Act 1950 still continues without any provision for bail. Logically or illogically if a person subject of the Act is charged for even a minor offence and placed under open or close arrest, there is no provision of bail at all which in normal situation is supported to be violative of Articles 21 of the Constitution of India.
There is another strong eventuality that Lt colonel was retiring on 30 June and the Commanding Officer or anyone in the higher echelon was not happy with such a person, some charges could be invented against him and he can be straight way placed under close arrest and under the provisions of Section 123 of the ‘Act’ continues despite his retirement on last day of the month he continues to be under arrest even after retirement that too without payment of his past dues-salary–even pension. Earlier this Section 123 had stipulated that a person subject to the Act can be taken into custody during the six months period after his retirement, if during this period any past demeanor–while in service surfaced up. Now the Indian Congress Government has amended this section and six months period of liability has been enhanced to 36 months. As an example a war veteran disabled officer had audacity of while in service charging a Brigadier (who happens to be son-in-law of one of the former Chief Minister northern State and a Colonel who claims to be son-in-law of adopted sister of one of the Central Minister) as revengeful measure when this handicapped officer was retiring on 30 June 89, 15 fictitious charges were levelled against him and he along with his minor child then aged 11 years were picked up on 04 Jul 1989 by armed contingent of Rajputana Rifles from Movement Control Office, New Delhi Railway Station and harassed, humiliated and ill-treated, ultimately let off after 75 days of military custody. During that period when Sri K.G. Bhagat, an Advocate from Supreme Court came to meet father and son then lodged in Rajputana Rifles Regimental Centre, he was prevented from meeting them. WHY? –
Was is not a case of violation of human rights? The Army Headquarters had functioned in a most callous manner by shifting father and son to Meerut under command of same Brigadier against whom the charges of corruption had been levelled by this officer – later learnt that the sole aim was to “bump off” father and son under some sort of “fake encounter”.
The unfortunate child who was kept into custody from 1800 hrs on 04 Jul 1989 to 0810 hrs on 09 Jul 1989. WAS IT NOT A CASE OF HUMAN RIGHTS INFERINGED? Courts are loath to interfering with, because of various reasons, sometimes due to lack of knowledge of Army Law, but in the instant case words of congress big-wits were involved.
If the corrupt congress regime and morally deprave service Headquarters have to advance, the plea that the child traveled with his father, of his own.
(a) What was the justification to keep the child and father, an officer with 80% disability in a cell of Rajputana Rifles Regimental Centre without food from the officers Mess?
(b) Why the Army Shiedaway from allowing father or at least the child to meet Sri. K.G. Bhagat, Advocate on 05 July, 1989?
Is it not flagrant violation of the Constitution of India, wherein right of defence is fundamental right ? was it not a case of violation of human rights ?
(c) Why was father and minor child kept into a cell under custody ?
(d) Why was the minor child left at Meerut when father was taken to Ramgarh Via Allahabad, was it not a case of violation of HUMAN RIGHTS ?
(e) What answers the GOC-in-C Central Command Lt General YN Sharma and the able Judge Advocate General of the Indian Army have ?
Major General AC Mangala has to say since he was then DJAG of HO Central Command. By the way Gen YN Sharma rightly expressed that by “Girls joining service in the Army”, now at least boys may start joining, which itself reflected that influx was poor in quantity as well as quality.
It is pertinent to mention that the Charges which were invented against the wounded-warrior had all failed, WITHOUT even any inquiry and then just to save their face, as the National Press had given wise coverage Army Authorities invented an altogether new charge of “overstayal of leave”. Leave was granted under order of Hon’ble High Court Allahabad and the Hon’ble Supreme of India had also directed for grant of leave. Ironically when the Prime Minister came to know of this case from the Indian Press that the officer being persecuted was Lt Col. A. Kumar, who happened to be nephew of Late Munshi Kanhaiya Lal, Hony. Manager of Anand Bhawan, PM asked for report. Even the report given to him though dated 20 May 1989, stated that the officer was being tried for various offences by a GCM, but the fact is that the only charge invented was “over-stayal of leave” (MIND YOY) form 21 May 1989 to 31 May 1989. FURRY report is dated 20 May 89 and offence committed is thereafter on 21 May 1989. so the Army HQ Ministry of Defence had astrologically known future events ALXS, Rajiv Gandhi lost his life not for any other reason, but due to violation of HUMAN RIGHTS, may be of some woman in SRI LARKA,
By the way father and Armed Escort had boarded Ranchi Express at 1230 hrs on 09 Jul 1989 which went to Ramgarh in Bihar Via Allahabad, YET the minor hapless child was left at Meerut, just to terrorise father to succumb to the pressures, so that corruption charges against Congress big-wigs sons-in-law & war as could be withdrawn, WAS IT NOT A CASE OF VIOLATION OF HUMAN RIGHTS ? This is the reason today why cream of the youth is not opting for Army Service.
LACUNAE IN THE ARMY ACT/RULES/REGULATIONS
(a) The Army has provisions of seeking remedy by the Jawans under Section 26 of the Army Act, 1950, where in the case of officers, they have right under Section 27 of the Army Act, 1950. In majority of the cases, when the person wronged submits statutory complaint it should be cardinal principle that complaint should be decided within a given timeframe and with “reasoned order”, as per the law settled by Hon’ble Supreme Court of India reported in AIR 1990 SC 1984, should be communicated. Meanwhile the action against which the complaint has been lodged should remain “stayed”.
(b) Similarly when the comments are being offered by the oppressor of the person wronged, against whom the complaint has been lodged when the decision is being communicated on the statutory complaint and if the same is in favour of the complainant he is more than satisfied, but in case his complaint is rejected in that event the entire comments offered by the oppressor must be communicated to the person, so that there is nothing on the back of the complainant.
(c) If the complainant’s plea has been up held, in that event “accountability” must be fixed so that the erring Commanding Officer is made accountable officially as well as financially, meaning that if the Government has incurred expenditure on the inquiry etc. part of which should be recoverable from the erring officer, that was bound to eradicate arbitrariness and malfeasance with which certain officers in commanding position function.
MALADIES IN THE ACT/RULES
(a) Power of summary disposal available under Section 80 onwards should be restricted – nay – rather abrogated. Incidentally there are very restricted power in summary disposal as for as Indian Air Force was concerned. Instead of summary disposal it should be summary Court Martial (SCM).
(b) The slip shod manner in which the investigations are carried out under Army Rule 22 (1) read in conjunction with the Army order 70/84 should be re-examined and parameter fixed that Commanding Officer himself must conduct the investigation and record it in writing rather than ordering another officer under his command to record the Summary of Evidence and then he relies upon it the way he feels like.
(c) When a decision had been taken to hold a Summary Court Martial, it should not be of officers/men of the same unit and Army Rule 40 should be made applicable in the case of Summary Court Martial also. Similarly when a decision had been taken to hold a Summary Court Martial the Next-of-Kin of the accused should be given prior notice and allowed to arrange for the defence of the accused be it by a friend of the accused/Defending Officer or counsel of his choice as laid down in Army Rules 95, 129 and Article 22 (1) of the Constitution of India.
(d), No Summary Court Martial should be allowed to be conduct based on deposition in the Summary of Evidence. Furthermore, once the Summary Court Martial has been concluded and sentence promulgated, the accused should not be sent to jail unless his petition against the conviction, be it under any of the Sections of the Act including Section 164 of the Army Act, 1950 has been decided. It should be mandatory that the moment a Summary Court Martial has been concluded, certified set of Summary Court Martial proceeding should be handed over to the counsel of the accused or given to his Next-of-Kin or sent to concerned Zila Sainik Board (Z5B) for handing over to Next-of-Kin of the accused. This shall be in addition to the requirement that one set shall also be handed over to he accused, and before SCM Commences Next-of-Kin must be informal so that defence could be arranged.
NOTE : The aforesaid is an inescapable necessity because in the present day it has become the order of the day that Commanding Officers in majority of the cases suffer from lack of knowledge and expertise in the Army law, as such after arbitrarily punishing the person avoid handing over a copy of the Summary Court Martial proceedings and resort to :-
(i), do not give the copy to the accused, despite Army or Act 51/87
(ii), make the accused write that he does not want a copy.
(iii), Copy has been handed over too the accused and such other flimsy and untenable ground.
(e), In one of the cases, Summary Court Martial was conducted forcing one of the soldiers to make confessional statement that he had stolen .9 mm pistol. The pistol was later on found, but the person was arbitrarily and in total disregard to the law reported in AIR 1994 SC 214, punished with 4 months Rigorous Imprisonment, dismissal from service and reduction from the rank of Naik to Sepoy. When the copy of the Summary Court Martial proceedings were demanded, the Commanding Officer gave a reply that the person has declined …………. to have a copy, and when the same was insisted by Next-of-Kin the Commanding Officer with perfidy replied that an accredited representative/counsel of the Next-of-Kin or the accredited cam visit the unit located several nunoreo miles ……… from the residence of the Next-of-kin and Peruse same, that too after next two months time and then also such representative/counsel will not be allowed to either make a copy or make note, out of the summary Court Martial proceedings what was the intention, only to ensure that the person wronged by then completes the jail term, Such actions were bound to demoralize even men still serving and doming uniform. A very dangerous syndrome indeed. Does this type of Commanding Officer expect loyalty of the men during the thick of a battle – or does he expect that he shall complete his tenure an a go away as was the mental make up and thought process of the officer cadre in pre-1962 era ? OR does he expect to hide in a Military Hospital as a sick person ?.
COURT MARTIALS – GCM/SGCM/DCM
(a) Similarly when the court martial is held it is almost settled law that the officers who constitutes the court martial are by and large never law qualified persons, and their being a person who is placed there as representative of the JAG Branch (Judge Advocate General) who is main star performer and has considerable influence over the outcome of the trial and remains loyal to “Command Influence” of formation Commander.
(b) The atmosphere at the GCM remains so much surcharged especially when a person accused of an offence is kept under close arrest and who is hardly allowed to have free communication with his well wishers/counsel. Also rules of the game are always complied in its breach. As an instance, even the GCM remains under ever watchful eyes of the of the convening and confirming authority under the provisions of Rule 150 of the ‘Rules’ 1954 and is always exposed to the hazards of being severely punished by way of an invented punishment which is known as ‘Severe Displeasure’. Though such displeasure has been frowned upon and found as violative of section 71 of the ‘Act’. (A Division Bench judgement of Hon’ble Allahabad High Court reported in 1994 UPLBEC 177 relied upon). Lately it is understood a Division bench of Supreme Court of India, foresighted, presided over by Hon’ble Kuldeep Singh J has settled the Law that the award of “Severe Displeasure” though not covered under Sec 71 or 74 of the Army Act 1950, was yet because it persisted right from “British Raj” as such it was based on old customs as such it has the force of Law. If this be so How could Hon’ble Court expect/direct Government to change the Muslim Personal Law. Which is not only based on their Law, but also shariat. Regarding “Severe Displeasure” in civil Appeal No. 1321 of 1995 This judgement delivered on 25.4.95 had shaken me thoroughly and I decided to prevent my sons from Joining Indian Army.
(c) The punishment awarded to the accused is not based on any reasoned order. Only the members constituting the Court Martial they write on a slip ‘Guilty’ or ‘Not Guilty’ and majority judgement is pronounced. Even after amendment of Army Act detailed orders are never recorded. Through there is a provision under Section 164 (1) of the ‘Act’, which caters for a petition by aggrieved to the confirming authority, before he has confirmed the GCM verdict but often the aggrieved is not allowed to avail this statutory remedy. As an example, in the case of Surendra Singh of a CAV, was tried by a GCM and awarded life imprisonment, but before the confirmation he had submitted a petition under Section 164 (1) of the ‘Act’, which was supposed to be decided within 30 days as laid down in Para 365 (j) of the DSR (Army) 1987, but it has not been decided even till date, and the person was lodged in Civil Jail, where he is languishing for the last 2 years, and now it has been communicated that the earlier petition was under Section 164 (1) of the ‘Act’, as such no action can be taken on that and now if he wishes he can prefer a petition under Section 164 (2) of the ’Act’, which was done on 24 Jul 1994, but ALAS the same is still awaiting disposal, that too DESPITE two directions of Allahabad High Court on 01 Sept 1995 and 21 Sept 1995. THUS Army Chief/Secretary, Ministry of Defence were showing THUMB to the High Court directions? Were they above the Law of Land. IS IT NOT A CASE OF MASAGRE OF THE PROVISIONS CONTAINED IN THE ARMY ACT? IT IS WILL AND WHIMS AND FANCIES OF THE GENERAL OFFICER RESULTING INTO SERIOUS VIOLATION OF HUMAN RIGHTS. Ironically a person convicted and sentenced to jail cannot seek proper judicial remedy available under Article 226 of the constitution of India till the convict has exhausted remedy available to him under Section 164 of the ‘Act’. What should the ACCUSED do in case if the Army authorities do not decide his statutory petition under Section 164 of the ‘Act’ and violate Para 365 (j) of DSR (Army) 1987 ? Such flagrant violation of Army Act 1950/DSR (Army) 1987 makes the men donning uniform loose faith in the system and as also end result being that he looses faith in the Military Leadership, compound effect being that there is reluctance on the part of the youth to join Defence Forces. WHAT WILL HAPPEN DURING ACTULA WAR WITH A HOSTILE NEIGHBOUR ?
VICARIOUS LIABILITY
It is worth mentioning that when the Britishers had enacted the law known as India Army Act, 1911, they had incorporated a Section know as One-Two-Three- (123), which had catered for that a person even if after his retirement/discharge, be remains subject to the Act next 6 months during which any of his misdeeds committed while in service, surfaced up, he can be taken into custody and tried for the same offences as if he continued to be subject to the Act even after retirement for 6 months duration. Not the worthy Indian Government under the Prime Ministership of Sri PV Narshimha Rao the said Section of the Army Act Viz Section 123 has been amended making the 6 months liability now to 36 months. This has become one of the biggest deterrent for the youth of the society who may be willing or wishing to join Defence forces.
Similarly there is another provision under Section 124 of the Army Act, 1950, which has catered that place of committal of offence is not relevance in so far as the place of trial or investigation were concerned. As an example a person subject to the Army Act was charged for an offence committed at Allahabad, he was taken to Meerut where the inquiry was conducted. Thereafter he was shifted from Meerut to Ramgarh and trail was conducted there. After trail the person was taken to Madras and kept in jail there. This is a serious handicap for any officer who has been accused for an offence, may be for a minor offence of overstayal of leave because he cannot be expected to meet his friends and well wishers/ engage a counsel at a far off place. Such draconian provisions prevented the cream of the society from joining the Indian Army. This was the reason that even senior Army officer were reluctant to allow their wards to join the Indian Army, end result being that today 67% new entrants are the children of JCOs and NCOs of the Army and from the lower echelon of the civilian society, with the result after another 15 years when these new entrants of today become the Commanding Officers, there would be altogether a different scenario of discipline in the Indian Army.
SERIOUS LACUNAE
Once there is a provision under section 124 of the Army Act 1950 which ha laid down that place of trial of a person subject to Army Act was not dependent upon/relevant to the place of occurrence of the offence, meaning that a person commits an offence in Madras, is taken away from there and investigation/trial conducted in Orissa, but is lodged in the jail in U.P., cannot seek judicial remedy in U.P. was against the basic spirit of section 124 of the Act, because in certain cases the Hon’ble judges have entertained a view that ether the convicted person should go to Madras or to Orissa to seek relief. How is it possible for a person convicted in Orissa now lodged in a Jail in U.P. to either arrange for filling of a Writ Petition either in Madras or in Orissa not only from Management point of view but also expenditure involved. Once there is no restriction as regards/filing of Writ Petition/Appeal and so on, especially when the Chief of the Army Staff has his legal representation. Through officer of the rank of Deputy Assistant Judge Advocate General. Who monitors, complies, vets and receives copies of the Writ Petition sends it to Chief of the Army staff and other units, even goes to the extent of monitoring and arranging filing of the documents connected with the contempt’s committed by Secretary. To Government of India, Ministry of Defence, Chief of the Army Staff and other Officers. Union of India has Chief Standing counsel with a battery of Additional Standing Counsels allover as such there should be no problem for the Government in receiving and defending case filed by a soldier. Any where the only yardstick should be that the petitioner is resident of a state within the jurisdiction of the High Court, (Section 20 of the C.P.C refers), the person is lodged in jail within the jurisdiction of High Court or any part of cause of action has arisen within the territorial jurisdiction of the High Court.
(b) similarly the Judge Advocate General Branch which consists of Law Qualified Officers, up to the command level should be placed under the direct command and control of Ministry of Law that would eliminate not only “Command and Influence” which the formation commanders unduly exert but also that would ensure fair trail and compliance of the Law on the Statue in the Army Act, 1950, Army Rule 1954/Defence Service Regulations 1987, and which in turn was bound to eliminate arbitrariness which was sworn enemy of principle of natural justice, end result would be reduction in the number of cases, and resuscitation of there wise “Sagging Morale” of brave soldiers.
JAG UNDER MINISTRY OF LAW
Armed forces being very special organisation where the defence of the nation was involved as such the men donning uniform deserved special treatment, because here the question of laying down of once life was involved as such keeping in view the judgement reported in AIR 1982 SC 1413, the ‘Act’ warranted remodeling as has been done in England with a provision for Appeal against conviction or award of any sentence under Sections including Section 164 of the Army Act should go to the Ministry of Law or if it goes through the Jag branch then it should go to the Ministry of Law meaning if Jag Branch is under Ministry of Law then it should go to Ministry of Defence.
ACCOUNTABILITY
For each wrong action the officers must be held responsible/ accountable as an example if the aggrieved person wins his case from the courts of Law, the oppressor officer must be made to bear 20% of the expenses incurred by the public exchequer.
(b) If there is petition for contempt, in that case the alleged contemnor should be make to face the charge his contempt at his own expense, and in the event of being found guilty should be dealt with accordingly. In the event of Hon’ble Acquittal, the expenses incurred by him should be reimbursed, that was bound to reduce the number of contempt petitions, in that would reduce the number of Writ Petitions/court cases.
(c) In the case of Writ Petition the government must fix responsibility of the officers who cause miscarriage of justice, violation of the Law end result being demoralization amongst the ranks – A dangerous syndrome indeed ?
(d) In the cases of criminal conduct of the officials sanction under Section Cr.P.C. 197 should not be denied that would serve as a serious deterrent against the mischief mongers.
WHAT HAPPENS
(a) In case if large number of cases are coming to the Courts of Law, that shows system of justice in the Army has become Antiquated, - worth keeping it in the National Achieves and a fresh look given to the Act No. of 46 of 1950. If it is not done disgruntled men can become serious liability in the event of a war with the hostile enemy across the borders, BECAUSE the dictum that MAN BEHIND MACHINE still remains the most vital factor.
(b) If nation toes not wake up purulia like CHINKS (airdropping of Arms) shat surface up more endangering national security especially when Courts are loath to …………………in Army matters heating the in justice men donning olive-green due do the following …………..
(i) Still treating Armed forces as “…………Cow”
(ii) Due to complex Army Law what was enacted in 1911 by the British Rules for there Indian Slaves, WHICH in the year 1950 has been charged form Indian Army Act 1911
to
Army Act 1950 by way of Just deleting the word “Indian” WHICH even Hon’ble Supreme Court dictated in 1952 SC 1413
(iii) “ANTIQUA TEN”
Counsels of appearing for the Union of India often harp in their arguments Need for Maintenance of discipline, forgetting if a Soldier does not get justice, he remains a disgruntled “Soldier” dangerous clement in the limes of Crises. BECAUSE by this only today there are 1250 ……………………in Officer Centre, 14000 Court Cases pending & in Army Headquarter A very dangerous syndrome INDEED.
Rohit Kumar,
Advocate, High Court,
161, Pritam Nagar, Near Kabir Mandir X-ing,
Allahabad-211001, Ph: +91-532-2233606,
Fax: +91-532-2231234, Mob; +91-94153-17013
Of late their have been virtual upheavals not only in the media, the fourth Estate, but also in the Parliament about shortfall of the officers cadre in the Indian Army. In order to buttress my contention I wish to record that even the Chief of the Army Staff, General S Roy Choudhary has admitted that there is a shortfall of 12,500 officers in the present day Indian Army, which by any statistic meant that the Army was managing with the lack of the lower echelons comprising to the level of deficiency of 1/3rd of the officers cadre. Even lately General Khanna, Chief of the Desert Corps, somewhere in the Rajasthan Sector, had candidly admitted that Army was running short of the officers cadre which he attributed to the lack of perks and less enthusiasm of the youth of the country to don uniform, where not only hazard, but also grave risks to the life were part of the game which proposition I wish to contradict, but the same shall be done in the succeeding paragraphs.
It is imperative to recall that during the period when General KV Krishna Rao was the Chief of the Army Staff, presently a Governor of the turbulent State of Jammu & Kashmir, a question was raised by then Defence Minister of India on the trifling issue of why the cream of the society was not opting to enter the distinguished and adventurous job of defending the country’ as also moot question which came up as to why large number of disciplinary cases were cropping up leading to court Martial’s, mostly Summary Court Martial and also the result that large number of cases were going to the courts of law. General KV Krishna Rao as part of the establishment had relied upon gimmickry of statistical analysis, then attempted to satisfy the Raksha Mantri with the General’s bureaucratic note bearing No. 18899/AG/DV-I obviously forgetting that our forces are very different and special organisation which deals with the defence of the nation and to a great extent the survival of nation depends on the might of the armed forces, which includes moral as well as the best possible management of the human resources which/who lay down their lives for the cause in the name of profession.
None have bothered to look into the serious maladies which have continued to exist because of the firstly, antiquated system of judicial prudence Alien Rulers enacted Indian Army Act, 1911 which was meant for Indian subjects, when we were slaves, containing draconian provisions. When we won the independence Indian Government headed by late Pt. Jawaharlal Nehru, the Prime Minister of India, decided to retain the same Act, with same draconian provisions, except deleting the word ‘Indian’ and renaming it as ‘Army Act, 1950’ [hereinafter denoted to as the Act], secondly, the perks and emoluments of personnel donning uniform remain the same for decades till 1975-76 and thirdly due to changed situation and environment and creation of East and West Pakistan, country’s frontier got enlarged. This apart from hostile relationship with China on the North frontier created new frontiers with hostile climatic conditions which caused not only hazard to the lives of the troops but also exposed them to physical injuries and disabilities, fourthly, the corruption in the society and the feeling that one living in the peace area as a civilian during the job in a peaceful living condition but also such official could manage better living condition, and as such other perks and facilities available to the civilian counterparts and so on, which also became serious impediment in the thought process of the cream of the youth and obviously the youth preferred to have the first choice as IAS, IPS, IFS/Private Enterprises in the public sectors and so on. The armed forces were eighth choice. By the way, if statistics can be compiled it can be safely seen – nay – concluded that all those national leaders who in their proclamations from the party platform exhort the youths of the nation to join armed forces and as a ritual prays gallant services of the defenders of the nation, but the same very men who are at top of the party to the Government do never allow their own wards either to venture entering armed forces or even daring marrying their own daughters to be same gallant soldiers.
Now with my experience I wish to bring out salient features due to which today the cream of the society abhors joining the armed forces and if they do so it is only as a last recourse if they find that they have no other venue. According to my experience the basis reasons are LACK of PROPER JUDICIAL SYSTEM AND ITS MANAGEMENT.
(a), That armed forces have an altogether different system and identity. Consequently it has its own separate Act known as Army Act 1950, Rules as Army Rules 1954 and Defence service Regulations (Regulations for the Army) 1987 [hereinafter denoted as DSR (Army) 1987], as also the Government issues Army Instructions and Government policy letters. Similarly the Chief of the Army Staff issues Army orders, Army Headquarters policy letters and so on. Based on this, armed forces have their own courts of law which are known as General Court Martial [hereinafter denoted as GCM], Summary General Court Martial [hereinafter denoted as SGCM], District Court Martial [hereinafter denoted as DCM], Summary Court Martial [hereinafter denoted as SCM] which are known as Court Martial’s manned by Army officers with their service being minimum 2 years. Such men by and large do not have any legal background but a GCM can sentence a person subject to the Act to death penalty.
(b), Apart from Court Martial’s, there are provisions under Sections 80, 83, 84 and 85 of the Act for summary disposal of the charges against a person subject to the Act by appropriate authority.
(c), Conduct of the Court Martial’s have been recovered by way of rules framed in the Army Rules 1954 [hereinafter referred to as the Rules], but which are by and large not followed not only in letter but what to say of spirits, and in the majority wish of the top echelon prevails. highhandedness becomes the order of the day.
(d), Against any trial the accused person as a right to make a petition under section 164 of the Act, one before confirmation of the Court Martial’s proceedings and the other one after confirmation of the proceedings but the moment a Court Martial Proceeding is confirmed (save in the case of SCM proceeding which under Section 161 of the Act, does not require any confirmation) the accused, if sentenced to Jail imprisonment, is dumped in the jail without allowing him to avail the statutory provisions contained in Section 164 (2) of the Act. It is pertinent to highlight that even Para 365 (j) of the DSR (Army) 1987 has laid down that the petition under Section 164 of the Act shall be disposed of and all attempts should be made to dispose it of within 30 days, but it always remains in the cold storage, as such the person jailed keeps on languishing in jail and is barred from seeking judicial protection for want of rejection of his statutory petition preferred under Section 164 of the Act.
(e), In any civilized nation, can it happen that a person who has been sentenced to imprisonment in civil jail by the sentence of a Court Martial, yet his pre-confirmation petition is not decided though mandatorily required under Section 164 (1) of the Act, proceedings confirmed and person lodged in jail. Often copy of the Court Martial proceedings especially in the case of SCM’s, despite gazette of India notification 169 of 15 May, 1987 reproduced in Army order 51/87, is not given. In large number of cases, the accused is made to sign that he does not wish to obtain a copy of the SCM proceedings which results into ………………. gallant soldier remaining in jail without being permitted to seek remedy available to him either from the Army echelons or courts of law.
ALTERNATIVE REMEDIES
The Army Act has catered for seeking remedy for any wrong done to the soldier under Section 26 of Army Act, 1950, for which regulations had been made in Para 361 of the DSR (Army) 1962. It catered for a non-statutory complaint to reach the Chief of the Army Staff within 45 days and to the Central Government within.
60 days, which has now been amended and incorporated in Para 364 of the DSR (Army) 1987, which has……….. stipulated that statutory complaint be processed and progressed and if the aggrieved does not receive a decision in six months period he may send a copy of the complaint directly to the formation addressed i.e. Ministry of Defence in the case of statutory complaint and the Chief of the Army Staff in the case of non-statutory complaint. Meanwhile contemplated action against the soldier persists/often punishments completed, there being no system of stay. Which is a serious malady-must be curbed. Once a statutory complaint has been preferred/accepted, impugned order/action must remain …… … ……………
Similarly for officers Section 27 of the Act, has laid down the statutory provision for seeking redress of grievances. Here also Para 364 of DSR (Army) 1987 governs the rules of the game, and in large number of cases the statutory complaint preferred remains in the “waste paper basket” of the Army Headquarters by and large in the Military Secretary’s Branch of Army Headquarters. Due to failure of system of alternative remedy, firstly by the higher echelons of the Army delaying the decision and secondly even if the decision is communicated, it remains “one line rejection” – it often states “considered and rejected” and now an addition is also made, “as it lacks substance”. In this context the law settled by the Hon’ble Supreme Court of India by a Five Judges bench reported in AIR 1990 SC 1984 is ignored altogether. When I had on 06 Oct, 1994 apprised the contents of the AIR 1990 SC 1984, and requested for issue of suitable directions to the Lower Echelons of Army for its compliance. Chief of Army Staff through his Military Secretary who is a Lieutenant General issued a direction vide MS No. 37625/MS, complaints dated 02 Nov 1995 which in substance meant FORGET ABOUT LAW SETTLED BY Supreme Court. As admitted by the then COC-in-C, Central command, who was formerly a Military Secretary himself till May 1994, 9,000 statutory complaints were pending in the Army Headquarters, Military Secretary’s Branch-a very dangerous syndrome indeed, that top echelons in the Indian publically admitted that 12,500 officers are deficient, 14000 cases pending in Courts and another 9,000 officers statutory complaints were pending, meaning there by half of the Army officers strength has become for practical purposes, non-functional as a person who feels wronged and submits statutory complaint and does not get redressed, remains in the state of demoralisation.
LACK OF ACCOUNTABILLTY
In the cases of officers/men donning uniform, seeking redress of their grievances through the medium of statutory complaints, have to submit the same through the immediate superior who in majority of the cases is the person against whom such complaints are preferred, offers ex-parte “comments” and then records whatever he feels based on his whims and fancies, and is never made accountable with the result a distorted version moves up.
Similarly the Statutory complaint against the wrong keeps on pending where as action are taken against the initiator of the complaint there being no provision of staying the action against which statutory complaint has been preferred which often results into the person continues to keep on suffering and nourishing grievances not only against the person-his oppressor-but also the organisation itself.
Similarly, the immediate superior as the Commanding Officer relying upon his personal dislike not on the professional competence of the personal records his views in the Annual Confidential Report [hereinafter denoted as ACR] of the person so rated and as such the ACR has become a tool to brow-beat the subordinates which also contributes to a great extent causing demoralisation in the ranks of officers/ subordinates.
PATTERN OF ACR: LACK OF COURAGE
The Indian Army being the fourth largest Army of the world had a system of reporting of the ACR by superior officers and showing to the officer reported upon.
In the year 1975 a decision was taken on a trial basis not to show the contents of the ACR to the officer reported upon. Unless it contained Adverse/Remedial remarks. After couple of years of trail, it was found that it was not workable and generated more “ill-will” and mutual distrust, as a result thereof the same was shelved, and ACR were again being shown to the officer reported upon.
In the year 1984 once again a decision had been taken by Lt Gen Sahdev Sehgal PVSM, the Military Secretary, of course with the blessings of Gen AS Vaidya, the then Chief of the Army Staff, not show the ACR to the Army officers (as was the practice in the civilian officers case). Thus equating them with the civilian officers.
A retired service Chief commented that in case if the Initiation officer under whom the officer reported upon is serving, does not have the “moral courage of conviction” to face the officer under his command across the table and tell him by way of showing the report recorded in the latter’s ACR, what he feels/has recorded in the officer’s ACR, how would he be able to face him in the “Thick of Battle”, what would be the effect of such a situation on the out come of war, when we do not have very friendly neighbours, due to acquire nuclear capability?
MAY SOME ONE IN AUTHORITY INTERVENE, TO SAVE THIS FINEST WAR MACHINE MEANT FOR THE DEFENCE OF THE COUNTRY.
CRITERIA APPOINTMENTS.
It has been found that in large number of cases of officers they are graded “Defer/Withdrawn” due to their not having been tried on criteria appointments or non/late receipt of ACRs over which the officer has no control, In such cases instead of making the officer suffer, the official due to whose negligence such a situation arose should be made Accountable. This would go a long way in restoring the faith of the officer in the system, COMPLAINTS MADE against the Branch viz MS/Directorate concerned should be dealt with by the AG/Addl AG/Ministry of Defence.
VIOLATION OF HUMAN RIGHTS
As has already been brought out in this article that Army Act, 1950 was modeled on the pattern of British Government Indian Army Act, 1911. Which was for the purpose of keeping the Indian slaves under the strong thumb of the Britishers then ruling India, the same provision is continued even in the modern civilised society needed drastic change – lack of it or want of it has resulted into thousands of cases of violation of human rights. As an example if a Commanding Officer does not like the fact of a person serving under him, he often resorts to just filling up a form which is known as AFMS-10, declares the person as mentally unsound, places him under arrest and sends him to the Military Hospital where such person is given shock treatment and often he comes out as a mental wreck, save in the case of their being a human Doctor present. In one of the case of a Junior Warrant Officer [hereinafter denoted as JWO], since this JWO had questioned the conduct of one of the Sikh Officer (who was later on court martialled) during operation Blue star, the entire establishment was against this JWO. They wanted to make his a case of AFMS-10 and despite medical report from Nagpur Medical College, the AOC concerned was trying to brand this JWO as a mental case which could be prevented only because of the intervention of Hon’ble Mr. Justice SC Verma of the Allahabad High Court. In the resurgeant India, the Army Act 1950 still continues without any provision for bail. Logically or illogically if a person subject of the Act is charged for even a minor offence and placed under open or close arrest, there is no provision of bail at all which in normal situation is supported to be violative of Articles 21 of the Constitution of India.
There is another strong eventuality that Lt colonel was retiring on 30 June and the Commanding Officer or anyone in the higher echelon was not happy with such a person, some charges could be invented against him and he can be straight way placed under close arrest and under the provisions of Section 123 of the ‘Act’ continues despite his retirement on last day of the month he continues to be under arrest even after retirement that too without payment of his past dues-salary–even pension. Earlier this Section 123 had stipulated that a person subject to the Act can be taken into custody during the six months period after his retirement, if during this period any past demeanor–while in service surfaced up. Now the Indian Congress Government has amended this section and six months period of liability has been enhanced to 36 months. As an example a war veteran disabled officer had audacity of while in service charging a Brigadier (who happens to be son-in-law of one of the former Chief Minister northern State and a Colonel who claims to be son-in-law of adopted sister of one of the Central Minister) as revengeful measure when this handicapped officer was retiring on 30 June 89, 15 fictitious charges were levelled against him and he along with his minor child then aged 11 years were picked up on 04 Jul 1989 by armed contingent of Rajputana Rifles from Movement Control Office, New Delhi Railway Station and harassed, humiliated and ill-treated, ultimately let off after 75 days of military custody. During that period when Sri K.G. Bhagat, an Advocate from Supreme Court came to meet father and son then lodged in Rajputana Rifles Regimental Centre, he was prevented from meeting them. WHY? –
Was is not a case of violation of human rights? The Army Headquarters had functioned in a most callous manner by shifting father and son to Meerut under command of same Brigadier against whom the charges of corruption had been levelled by this officer – later learnt that the sole aim was to “bump off” father and son under some sort of “fake encounter”.
The unfortunate child who was kept into custody from 1800 hrs on 04 Jul 1989 to 0810 hrs on 09 Jul 1989. WAS IT NOT A CASE OF HUMAN RIGHTS INFERINGED? Courts are loath to interfering with, because of various reasons, sometimes due to lack of knowledge of Army Law, but in the instant case words of congress big-wits were involved.
If the corrupt congress regime and morally deprave service Headquarters have to advance, the plea that the child traveled with his father, of his own.
(a) What was the justification to keep the child and father, an officer with 80% disability in a cell of Rajputana Rifles Regimental Centre without food from the officers Mess?
(b) Why the Army Shiedaway from allowing father or at least the child to meet Sri. K.G. Bhagat, Advocate on 05 July, 1989?
Is it not flagrant violation of the Constitution of India, wherein right of defence is fundamental right ? was it not a case of violation of human rights ?
(c) Why was father and minor child kept into a cell under custody ?
(d) Why was the minor child left at Meerut when father was taken to Ramgarh Via Allahabad, was it not a case of violation of HUMAN RIGHTS ?
(e) What answers the GOC-in-C Central Command Lt General YN Sharma and the able Judge Advocate General of the Indian Army have ?
Major General AC Mangala has to say since he was then DJAG of HO Central Command. By the way Gen YN Sharma rightly expressed that by “Girls joining service in the Army”, now at least boys may start joining, which itself reflected that influx was poor in quantity as well as quality.
It is pertinent to mention that the Charges which were invented against the wounded-warrior had all failed, WITHOUT even any inquiry and then just to save their face, as the National Press had given wise coverage Army Authorities invented an altogether new charge of “overstayal of leave”. Leave was granted under order of Hon’ble High Court Allahabad and the Hon’ble Supreme of India had also directed for grant of leave. Ironically when the Prime Minister came to know of this case from the Indian Press that the officer being persecuted was Lt Col. A. Kumar, who happened to be nephew of Late Munshi Kanhaiya Lal, Hony. Manager of Anand Bhawan, PM asked for report. Even the report given to him though dated 20 May 1989, stated that the officer was being tried for various offences by a GCM, but the fact is that the only charge invented was “over-stayal of leave” (MIND YOY) form 21 May 1989 to 31 May 1989. FURRY report is dated 20 May 89 and offence committed is thereafter on 21 May 1989. so the Army HQ Ministry of Defence had astrologically known future events ALXS, Rajiv Gandhi lost his life not for any other reason, but due to violation of HUMAN RIGHTS, may be of some woman in SRI LARKA,
By the way father and Armed Escort had boarded Ranchi Express at 1230 hrs on 09 Jul 1989 which went to Ramgarh in Bihar Via Allahabad, YET the minor hapless child was left at Meerut, just to terrorise father to succumb to the pressures, so that corruption charges against Congress big-wigs sons-in-law & war as could be withdrawn, WAS IT NOT A CASE OF VIOLATION OF HUMAN RIGHTS ? This is the reason today why cream of the youth is not opting for Army Service.
LACUNAE IN THE ARMY ACT/RULES/REGULATIONS
(a) The Army has provisions of seeking remedy by the Jawans under Section 26 of the Army Act, 1950, where in the case of officers, they have right under Section 27 of the Army Act, 1950. In majority of the cases, when the person wronged submits statutory complaint it should be cardinal principle that complaint should be decided within a given timeframe and with “reasoned order”, as per the law settled by Hon’ble Supreme Court of India reported in AIR 1990 SC 1984, should be communicated. Meanwhile the action against which the complaint has been lodged should remain “stayed”.
(b) Similarly when the comments are being offered by the oppressor of the person wronged, against whom the complaint has been lodged when the decision is being communicated on the statutory complaint and if the same is in favour of the complainant he is more than satisfied, but in case his complaint is rejected in that event the entire comments offered by the oppressor must be communicated to the person, so that there is nothing on the back of the complainant.
(c) If the complainant’s plea has been up held, in that event “accountability” must be fixed so that the erring Commanding Officer is made accountable officially as well as financially, meaning that if the Government has incurred expenditure on the inquiry etc. part of which should be recoverable from the erring officer, that was bound to eradicate arbitrariness and malfeasance with which certain officers in commanding position function.
MALADIES IN THE ACT/RULES
(a) Power of summary disposal available under Section 80 onwards should be restricted – nay – rather abrogated. Incidentally there are very restricted power in summary disposal as for as Indian Air Force was concerned. Instead of summary disposal it should be summary Court Martial (SCM).
(b) The slip shod manner in which the investigations are carried out under Army Rule 22 (1) read in conjunction with the Army order 70/84 should be re-examined and parameter fixed that Commanding Officer himself must conduct the investigation and record it in writing rather than ordering another officer under his command to record the Summary of Evidence and then he relies upon it the way he feels like.
(c) When a decision had been taken to hold a Summary Court Martial, it should not be of officers/men of the same unit and Army Rule 40 should be made applicable in the case of Summary Court Martial also. Similarly when a decision had been taken to hold a Summary Court Martial the Next-of-Kin of the accused should be given prior notice and allowed to arrange for the defence of the accused be it by a friend of the accused/Defending Officer or counsel of his choice as laid down in Army Rules 95, 129 and Article 22 (1) of the Constitution of India.
(d), No Summary Court Martial should be allowed to be conduct based on deposition in the Summary of Evidence. Furthermore, once the Summary Court Martial has been concluded and sentence promulgated, the accused should not be sent to jail unless his petition against the conviction, be it under any of the Sections of the Act including Section 164 of the Army Act, 1950 has been decided. It should be mandatory that the moment a Summary Court Martial has been concluded, certified set of Summary Court Martial proceeding should be handed over to the counsel of the accused or given to his Next-of-Kin or sent to concerned Zila Sainik Board (Z5B) for handing over to Next-of-Kin of the accused. This shall be in addition to the requirement that one set shall also be handed over to he accused, and before SCM Commences Next-of-Kin must be informal so that defence could be arranged.
NOTE : The aforesaid is an inescapable necessity because in the present day it has become the order of the day that Commanding Officers in majority of the cases suffer from lack of knowledge and expertise in the Army law, as such after arbitrarily punishing the person avoid handing over a copy of the Summary Court Martial proceedings and resort to :-
(i), do not give the copy to the accused, despite Army or Act 51/87
(ii), make the accused write that he does not want a copy.
(iii), Copy has been handed over too the accused and such other flimsy and untenable ground.
(e), In one of the cases, Summary Court Martial was conducted forcing one of the soldiers to make confessional statement that he had stolen .9 mm pistol. The pistol was later on found, but the person was arbitrarily and in total disregard to the law reported in AIR 1994 SC 214, punished with 4 months Rigorous Imprisonment, dismissal from service and reduction from the rank of Naik to Sepoy. When the copy of the Summary Court Martial proceedings were demanded, the Commanding Officer gave a reply that the person has declined …………. to have a copy, and when the same was insisted by Next-of-Kin the Commanding Officer with perfidy replied that an accredited representative/counsel of the Next-of-Kin or the accredited cam visit the unit located several nunoreo miles ……… from the residence of the Next-of-kin and Peruse same, that too after next two months time and then also such representative/counsel will not be allowed to either make a copy or make note, out of the summary Court Martial proceedings what was the intention, only to ensure that the person wronged by then completes the jail term, Such actions were bound to demoralize even men still serving and doming uniform. A very dangerous syndrome indeed. Does this type of Commanding Officer expect loyalty of the men during the thick of a battle – or does he expect that he shall complete his tenure an a go away as was the mental make up and thought process of the officer cadre in pre-1962 era ? OR does he expect to hide in a Military Hospital as a sick person ?.
COURT MARTIALS – GCM/SGCM/DCM
(a) Similarly when the court martial is held it is almost settled law that the officers who constitutes the court martial are by and large never law qualified persons, and their being a person who is placed there as representative of the JAG Branch (Judge Advocate General) who is main star performer and has considerable influence over the outcome of the trial and remains loyal to “Command Influence” of formation Commander.
(b) The atmosphere at the GCM remains so much surcharged especially when a person accused of an offence is kept under close arrest and who is hardly allowed to have free communication with his well wishers/counsel. Also rules of the game are always complied in its breach. As an instance, even the GCM remains under ever watchful eyes of the of the convening and confirming authority under the provisions of Rule 150 of the ‘Rules’ 1954 and is always exposed to the hazards of being severely punished by way of an invented punishment which is known as ‘Severe Displeasure’. Though such displeasure has been frowned upon and found as violative of section 71 of the ‘Act’. (A Division Bench judgement of Hon’ble Allahabad High Court reported in 1994 UPLBEC 177 relied upon). Lately it is understood a Division bench of Supreme Court of India, foresighted, presided over by Hon’ble Kuldeep Singh J has settled the Law that the award of “Severe Displeasure” though not covered under Sec 71 or 74 of the Army Act 1950, was yet because it persisted right from “British Raj” as such it was based on old customs as such it has the force of Law. If this be so How could Hon’ble Court expect/direct Government to change the Muslim Personal Law. Which is not only based on their Law, but also shariat. Regarding “Severe Displeasure” in civil Appeal No. 1321 of 1995 This judgement delivered on 25.4.95 had shaken me thoroughly and I decided to prevent my sons from Joining Indian Army.
(c) The punishment awarded to the accused is not based on any reasoned order. Only the members constituting the Court Martial they write on a slip ‘Guilty’ or ‘Not Guilty’ and majority judgement is pronounced. Even after amendment of Army Act detailed orders are never recorded. Through there is a provision under Section 164 (1) of the ‘Act’, which caters for a petition by aggrieved to the confirming authority, before he has confirmed the GCM verdict but often the aggrieved is not allowed to avail this statutory remedy. As an example, in the case of Surendra Singh of a CAV, was tried by a GCM and awarded life imprisonment, but before the confirmation he had submitted a petition under Section 164 (1) of the ‘Act’, which was supposed to be decided within 30 days as laid down in Para 365 (j) of the DSR (Army) 1987, but it has not been decided even till date, and the person was lodged in Civil Jail, where he is languishing for the last 2 years, and now it has been communicated that the earlier petition was under Section 164 (1) of the ‘Act’, as such no action can be taken on that and now if he wishes he can prefer a petition under Section 164 (2) of the ’Act’, which was done on 24 Jul 1994, but ALAS the same is still awaiting disposal, that too DESPITE two directions of Allahabad High Court on 01 Sept 1995 and 21 Sept 1995. THUS Army Chief/Secretary, Ministry of Defence were showing THUMB to the High Court directions? Were they above the Law of Land. IS IT NOT A CASE OF MASAGRE OF THE PROVISIONS CONTAINED IN THE ARMY ACT? IT IS WILL AND WHIMS AND FANCIES OF THE GENERAL OFFICER RESULTING INTO SERIOUS VIOLATION OF HUMAN RIGHTS. Ironically a person convicted and sentenced to jail cannot seek proper judicial remedy available under Article 226 of the constitution of India till the convict has exhausted remedy available to him under Section 164 of the ‘Act’. What should the ACCUSED do in case if the Army authorities do not decide his statutory petition under Section 164 of the ‘Act’ and violate Para 365 (j) of DSR (Army) 1987 ? Such flagrant violation of Army Act 1950/DSR (Army) 1987 makes the men donning uniform loose faith in the system and as also end result being that he looses faith in the Military Leadership, compound effect being that there is reluctance on the part of the youth to join Defence Forces. WHAT WILL HAPPEN DURING ACTULA WAR WITH A HOSTILE NEIGHBOUR ?
VICARIOUS LIABILITY
It is worth mentioning that when the Britishers had enacted the law known as India Army Act, 1911, they had incorporated a Section know as One-Two-Three- (123), which had catered for that a person even if after his retirement/discharge, be remains subject to the Act next 6 months during which any of his misdeeds committed while in service, surfaced up, he can be taken into custody and tried for the same offences as if he continued to be subject to the Act even after retirement for 6 months duration. Not the worthy Indian Government under the Prime Ministership of Sri PV Narshimha Rao the said Section of the Army Act Viz Section 123 has been amended making the 6 months liability now to 36 months. This has become one of the biggest deterrent for the youth of the society who may be willing or wishing to join Defence forces.
Similarly there is another provision under Section 124 of the Army Act, 1950, which has catered that place of committal of offence is not relevance in so far as the place of trial or investigation were concerned. As an example a person subject to the Army Act was charged for an offence committed at Allahabad, he was taken to Meerut where the inquiry was conducted. Thereafter he was shifted from Meerut to Ramgarh and trail was conducted there. After trail the person was taken to Madras and kept in jail there. This is a serious handicap for any officer who has been accused for an offence, may be for a minor offence of overstayal of leave because he cannot be expected to meet his friends and well wishers/ engage a counsel at a far off place. Such draconian provisions prevented the cream of the society from joining the Indian Army. This was the reason that even senior Army officer were reluctant to allow their wards to join the Indian Army, end result being that today 67% new entrants are the children of JCOs and NCOs of the Army and from the lower echelon of the civilian society, with the result after another 15 years when these new entrants of today become the Commanding Officers, there would be altogether a different scenario of discipline in the Indian Army.
SERIOUS LACUNAE
Once there is a provision under section 124 of the Army Act 1950 which ha laid down that place of trial of a person subject to Army Act was not dependent upon/relevant to the place of occurrence of the offence, meaning that a person commits an offence in Madras, is taken away from there and investigation/trial conducted in Orissa, but is lodged in the jail in U.P., cannot seek judicial remedy in U.P. was against the basic spirit of section 124 of the Act, because in certain cases the Hon’ble judges have entertained a view that ether the convicted person should go to Madras or to Orissa to seek relief. How is it possible for a person convicted in Orissa now lodged in a Jail in U.P. to either arrange for filling of a Writ Petition either in Madras or in Orissa not only from Management point of view but also expenditure involved. Once there is no restriction as regards/filing of Writ Petition/Appeal and so on, especially when the Chief of the Army Staff has his legal representation. Through officer of the rank of Deputy Assistant Judge Advocate General. Who monitors, complies, vets and receives copies of the Writ Petition sends it to Chief of the Army staff and other units, even goes to the extent of monitoring and arranging filing of the documents connected with the contempt’s committed by Secretary. To Government of India, Ministry of Defence, Chief of the Army Staff and other Officers. Union of India has Chief Standing counsel with a battery of Additional Standing Counsels allover as such there should be no problem for the Government in receiving and defending case filed by a soldier. Any where the only yardstick should be that the petitioner is resident of a state within the jurisdiction of the High Court, (Section 20 of the C.P.C refers), the person is lodged in jail within the jurisdiction of High Court or any part of cause of action has arisen within the territorial jurisdiction of the High Court.
(b) similarly the Judge Advocate General Branch which consists of Law Qualified Officers, up to the command level should be placed under the direct command and control of Ministry of Law that would eliminate not only “Command and Influence” which the formation commanders unduly exert but also that would ensure fair trail and compliance of the Law on the Statue in the Army Act, 1950, Army Rule 1954/Defence Service Regulations 1987, and which in turn was bound to eliminate arbitrariness which was sworn enemy of principle of natural justice, end result would be reduction in the number of cases, and resuscitation of there wise “Sagging Morale” of brave soldiers.
JAG UNDER MINISTRY OF LAW
Armed forces being very special organisation where the defence of the nation was involved as such the men donning uniform deserved special treatment, because here the question of laying down of once life was involved as such keeping in view the judgement reported in AIR 1982 SC 1413, the ‘Act’ warranted remodeling as has been done in England with a provision for Appeal against conviction or award of any sentence under Sections including Section 164 of the Army Act should go to the Ministry of Law or if it goes through the Jag branch then it should go to the Ministry of Law meaning if Jag Branch is under Ministry of Law then it should go to Ministry of Defence.
ACCOUNTABILITY
For each wrong action the officers must be held responsible/ accountable as an example if the aggrieved person wins his case from the courts of Law, the oppressor officer must be made to bear 20% of the expenses incurred by the public exchequer.
(b) If there is petition for contempt, in that case the alleged contemnor should be make to face the charge his contempt at his own expense, and in the event of being found guilty should be dealt with accordingly. In the event of Hon’ble Acquittal, the expenses incurred by him should be reimbursed, that was bound to reduce the number of contempt petitions, in that would reduce the number of Writ Petitions/court cases.
(c) In the case of Writ Petition the government must fix responsibility of the officers who cause miscarriage of justice, violation of the Law end result being demoralization amongst the ranks – A dangerous syndrome indeed ?
(d) In the cases of criminal conduct of the officials sanction under Section Cr.P.C. 197 should not be denied that would serve as a serious deterrent against the mischief mongers.
WHAT HAPPENS
(a) In case if large number of cases are coming to the Courts of Law, that shows system of justice in the Army has become Antiquated, - worth keeping it in the National Achieves and a fresh look given to the Act No. of 46 of 1950. If it is not done disgruntled men can become serious liability in the event of a war with the hostile enemy across the borders, BECAUSE the dictum that MAN BEHIND MACHINE still remains the most vital factor.
(b) If nation toes not wake up purulia like CHINKS (airdropping of Arms) shat surface up more endangering national security especially when Courts are loath to …………………in Army matters heating the in justice men donning olive-green due do the following …………..
(i) Still treating Armed forces as “…………Cow”
(ii) Due to complex Army Law what was enacted in 1911 by the British Rules for there Indian Slaves, WHICH in the year 1950 has been charged form Indian Army Act 1911
to
Army Act 1950 by way of Just deleting the word “Indian” WHICH even Hon’ble Supreme Court dictated in 1952 SC 1413
(iii) “ANTIQUA TEN”
Counsels of appearing for the Union of India often harp in their arguments Need for Maintenance of discipline, forgetting if a Soldier does not get justice, he remains a disgruntled “Soldier” dangerous clement in the limes of Crises. BECAUSE by this only today there are 1250 ……………………in Officer Centre, 14000 Court Cases pending & in Army Headquarter A very dangerous syndrome INDEED.
