The death sentence in the Army
U.C. JHA
THE AWARD of the death sentence by the general court-martial to Sepoy S.C. Behra for killing his commanding officer is a matter of concern (The Hindu, March 2). The GCM is empowered to award the death sentence in cases of murder; however, the process followed by military tribunals violates the human rights of the accused.
Contrary to what is reported, the accused does not have the right to approach civil courts. The High Courts and the Supreme Court are debarred by the Constitution (Articles 227 and 136) from entertaining any appeal against the decisions of military tribunals. Since the Armed Forces Tribunal has not yet been established, the only remedy available to the person is to approach the Central government for mercy. It is the Central government which confirms the death sentence.
Extensive role
The military commander, often called `the convening authority,' plays an extensive role in the military justice system. The court members, judge advocate and defending officer remain under his chain of command. He can specially select an experienced prosecutor for handling the case. Though an accused may hire the services of an experienced counsel to defend his case, in reality, financial constraints often do not allow him to do so.
Thus, in actual practice, the rights of the accused under Articles 14 and 21 of the Constitution are often violated.
The greatest drawbacks of the military justice system are that the court members decide the guilt as well as the sentence, and that they perform a duty they know little, if anything, about. They (1) are not properly trained to perform the sentencing function; (2) do not know the collateral consequences of certain punishments; (3) are unduly influenced by emotion; and (4) rely unduly on the convening authority to correct inappropriate sentences.
In addition, they may be under unlawful command influence. The convening authorities themselves are untrained in law, and hence, lack the expertise for the proper administration of the justice system. Thus the outcome of a court-martial — convicted and sentenced by untrained persons, and reviewed by another person with little knowledge of criminal justice — may not be appropriate in the present day context of a just and fair judicial system.
There is a need to make changes in the sentencing procedure to protect military accused from being sentenced unfairly.
In the criminal justice system, the fact-finder should have the characteristics that determine truth — sensitivity, discernment and maturity. He must have the ability to judge credibility, rationalise, apply logic, grasp facts and build upon them, and to know what is expected in human relations under a given set of circumstances.
The sentencing authority, on his part, must be able to judge the circumstances surrounding the offence and estimate the need for and effectiveness of the punishment, on the basis of the need of the community to safeguard itself, the need to prevent recurrences by the offender, and the need to deter others. As the goal of the criminal justice system is not only to prevent crime, the sentencing authority must consider the chances and means of rehabilitating the offender.
Over the last 55 years, there have been remarkable reforms related to the interpretation of constitutional provisions, judicial independence and the civilian criminal justice system.
The armed forces cannot stay cocooned since the personnel they recruit belong to and interact with the wider society, which has undergone significant change. The government must update the military justice system and prioritise the establishment of the Armed Forces Tribunal, on the basis of the tenth report of the Parliamentary Standing Committee.
ucjha1@rediffmail.com
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