No justice for jawans

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Rohit Singh* was a highly-decorated naval officer who led a team of ace skydivers. After receiving training from army and air force skydivers, the band of daredevils competed in and won laurels at national and global events.

In 2008, Singh & Co were participating at a skydiving event in France. One day, three team members (two sailors and a cameraman) missed a practice session. Later in the day, a housekeeper at the hotel where they were staying alleged that the cameraman had sexually assaulted her and that the two sailors were accomplices in the crime. She had to be hospitalised after the incident. The local police reported the matter to the naval attaché at the Indian embassy. It stopped short of being an international incident because Singh and the naval attaché promised the local authorities that proceedings under Indian defence service laws would be initiated against the trio. The team was asked to leave the hotel and their participation at the event was cancelled.

On his return, Singh reported the incident to his seniors. But to get back at him, the cameraman, who was also the team’s accounts officer, reported him for allegedly embezzling money from the team’s funds. Singh claims that the accounts officer distorted facts and made it look as if he had embezzled the funds (instead of sticking to the approved number of simulations and practice dives, Singh was shown as pocketing the money himself ).

After that allegation, the case took a bizarre turn. The commanding officer convened a Board of Inquiry into the charges against Singh. At first, Singh was not allowed to attend the Board of Inquiry proceedings. When he was allowed three days later, the presiding officer antedated his attendance by three days.

The presiding officer then declared the proceedings as in camera. Usually, this means that the media or the general public are not allowed in the courtroom. But in this case, the accused himself was not allowed to be present. Witnesses were examined without the accused being allowed to be present. Singh claims he was not allowed to cross-examine most of the board’s witnesses, nor given transcripts of their testimony even though he was defending his career and freedom. Some testimonies were in the form of emails and statements made by people without asking them to make the statement in person or allowing Singh to cross-examine them.

Some documents were produced as evidence against Singh. When he went to the office concerned for those documents, some officers were in the process of shredding them. Singh complained to the presiding officer, asking for his intervention, which is permitted by law. The officer denied intervention but those documents were taken on record. To top it all, Singh was not allowed to present any of the 50 witnesses he had listed.

The Board of Inquiry decided Singh was guilty and a court martial was initiated. Singh appealed to the Armed Forces Tribunal in the meantime. But he found that the court martial and the Armed Forces Tribunal were not inclined to help. He filed a petition with the Delhi High Court, which found oddities and said in an order on 24 November 2011 that “any order passed in the court martial proceedings, which is initiated consequent to the Board of Inquiry challenged in this petition, shall be subject to the outcome of the present writ petition”.

Court martial proceedings usually take place between 10 pm to 6 pm. But, on 6 December 2011, Singh’s case was made an exception and, with an inexplicable sense of urgency, the court martial sat until 11 pm, found him guilty and sentenced him to two-year rigorous imprisonment with immediate effect. The Naval Police immediately whisked him away. The court martial had not even approached the additional solicitor general or the high court for a clarification of its order. However, expressing shock at the court martial ignoring its order, the high court stayed the order on 13 December 2011 and reinstated Singh. The case is now before the Delhi High Court and is awaiting a final order.

The case might seem strange especially when one sees servicemen in the light of being “first citizens” of the country. But, it is not a one-off situation. There are several such cases and only a few can approach civilian courts for redress. To understand why court martials and Board of Inquiry proceedings are conducted unfairly, one has to understand the way the defence services work.

Commodore (retd) Sukhjinder Singh served as a Judge Advocate General (JAG) in the navy for more than eight years. After retirement, he now defends officers in court martials. “In the services, there is a chain of command and rarely does the JAG turn around and say that no case can be made out against the accused officer or jawan,” he says. “A Board of Inquiry or a court martial always tries to prove an accused guilty of the charge sanctioned by the convening authority, who is superior to the members of the board or court martial. No one wants the superior officer to form an adverse opinion of him.”

That explains the high rate of prosecution in court martials. The strictness of the armed forces laws finds its roots in draconian British laws devised to ensure that Indian soldiers remained servile.

The European Court of Human Rights ruled that the UK’s court martial system, on which the Indian system is modelled, violated the European Convention for the Protection of Human Rights. The Canadian Supreme Court held that military tribunals in the country violated the Canadian Charter of Rights and Freedoms. In India, authorities convene a Board of Inquiry and court martial with a single intent: complete success in all prosecutions, sometimes just for a pat on the back. Summary trials have a 100 percent rate of prosecution and in court martials, the rate of prosecution is north of 95 percent.

The law ministry has power over most tribunals and commissions of the country. However, the Armed Forces Tribunal is directly under the defence ministry. The tribunal consists of one judicial member and a retired officer of the army, navy or air force depending on the service that held the court martial.

Summary trials are conducted during wartime so as to enforce order and discipline within the ranks. Disobedience during war means fatalities or casualties. Summary trials require the permission of a superior officer who is above a commandant (equivalent to colonel in the army and superintendent in the police) and this authority later reviews the summary proceedings and an appropriate court can test the findings of the trial. Senior officers agree that during peacetime, charges, especially those of a serious nature and resulting in dismissal from service, should be sent to a proper court.

Another such case involved two navymen — combat steward Manoj Kumar and lead sailor RK Yadav. The Mumbai Police laid a trap and arrested Yadav, who was trying to sell a handgun in the open market. Yadav claimed that he was only a courier for Kumar, who had procured the gun and arranged the transaction. The Naval Police intervened and told the police that Yadav would be tried in a court martial.

In the Board of Inquiry, Yadav produced a juice vendor who claimed that the gun belonged to Kumar. The vendor’s word was accepted as gospel truth. Kumar was found guilty and sentenced, while Yadav was shown leniency. The evidence collected and the witnesses summoned by the police for the civilian court was never admitted before the Board of Inquiry or the court martial. The Armed Forces Tribunal took a stern view of this case and overturned the conviction.

Not just the armed forces, there are similar cases prevalent in the paramilitary forces that guard our borders.

Take the case of BSF head constable Anil Kumar Upadhyay. In August 2003, Upadhyay was diagnosed with acute psychosis and possible schizophrenia after he was found wandering in a disoriented state near the army base hospital in Agartala, where he was then posted. The psychiatrist at the government hospital had prescribed him medication and mentioned in the slip, “Keep close observation to avoid self-harm or injury to others.”

A month later, another BSF constable filed a complaint that someone had forcefully entered his house, sexually assaulted his wife and stolen some money. The morning after, when Upadhyay was passing by their house, the constable’s wife alleged that he was the culprit.

Within a week, the commandant registered the complaint and ordered an assistant commandant to record evidence against Upadhyay. In the meantime, Upadhyay’s battalion was transferred to Rajasthan. There, a BSF doctor confirmed that Upadhyay was schizophrenic.

In November 2003, the commandant had written to the BSF medical board to have Upadhyay removed due to his mental health condition but it was not entertained. Despite the fact that the man had a mental ailment, a chargesheet was prepared in February 2004. The commandant wrote to Upadhyay that he would be summarily tried for the offences he was charged with within two days. He was placed under arrest and was given no time to find a legal counsel to represent him.

In penal cases, some accused take the defence of insanity after being charged. In this case, the authorities were aware of the jawan’s mental condition even before the complaint was filed or the alleged incident took place. The tribunal found Upadhyay guilty and ordered his dismissal and six months civil imprisonment.

The commandant exercised his unfettered powers and immediately struck Upadhyay’s name off the rolls without even awaiting a review. In the review, the superior officer found that Upadhyay was not guilty of the theft due to lack of evidence. Upadhyay had also asked for a key witness, his roommate in the barracks who would have testified that Upadhyay had been sleeping in his bunk all night. Upadhyay tried appealing to higher officers but to no avail. He approached the Allahabad HC after dismissal but the court took five years to decide it had no territorial jurisdiction and now the matter is awaiting hearing before the Delhi HC.

It seems the whole point of the summary trial is to deny the accused the right to present their defence properly and have a fair trial. Rights are ignored and all objections summarily overruled.

Havaldar Balwan Singh was in charge of furniture at an army camp and was the go-to person if a soldier needed to exchange his old furniture for new ones. A refusal to give new furniture to a jawan led to the latter’s wife filing a complaint of sexual assault against Singh.

The commander held a summary trial and dishonourably discharged Singh, taking away pension benefits accrued over 21 years of service. The Armed Forces Tribunal upheld the conviction and sentence.

In this case, there was no basis for a summary trial. The 21 years of spotless service should have been taken into account before snatching away Singh’s pension benefits, which put his family’s financial condition in jeopardy.

“When someone is accused of a civil offence at the war front, summary procedure is followed as it is convenient at that time not to get into detailed court proceedings that are followed during peacetime,” says Singh’s legal counsel Prateek Dahiya. “As per Section 69 and 124 of the Army Act, a summary court martial cannot and should not be followed in cases of a crime not committed on active duty. For these, there is a provision for a general and district court martials, which theoretically safeguard the interest of the accused. Such safeguards are not available in a summary court martial. The armed forces resort to summary court martial procedures at the drop of a hat simply because these are more convenient. They justify the same on the pretext of the larger good of maintaining discipline.”

To get a taste of the shocking nature of court martials and summary trials, one just needs to recall the Samba spy scandal. In that case, nearly 50 officers and jawans of the 168 Infantry Brigade were tried and found guilty of spying for the Pakistan Army. In 1994, the chief witness, Sarwan Das, confessed that the whole case was actually a hoax, and that the prime accused, Havaldar Ram Swaroop, had been tortured by the Military Intelligence before he slipped into a coma and died. Even senior officers such as Major NR Ajwani, the then JAG, was held for a year and asked to cooperate in naming others.

The Samba spy scandal had kicked a hornet’s nest and showed how the army treats its soldiers. The scandal, which was chronicled in detail by senior journalist AG Noorani, exposed how the army used court martials and summary trials to give torture and botched investigations a veneer of procedural legality. Justice K Ramamoorthy of the Delhi High Court had noted that there had been “gross miscarriage of justice” in the court martials.

Many such cases involving senior officers are pending in courts. For example, Air Vice-Marshal Nihal Koshy* was dismissed for having a “more than appropriate” relationship with a junior officer’s wife. Both the junior officer and his wife have denied any wrongdoing. Rumour has it that Koshy was ‘fixed’ because he exposed corruption in the reconstruction of a strategically important air force base.

In his famous poem Charge of the Light Brigade, Lord Alfred Tennyson wrote, “Ours is not to question why, ours is but to do or die.” These words are applicable to the armed forces during war or conflict situations. But should such highhandedness in court martial proceedings and summary trials in the name of discipline, order and unquestioned obedience be imposed on jawans during peacetime?

ushinor@tehelka.com

*names changed to protect identity

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