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An SCM may be held by the commanding officer of any army unit and can try an accused up to the rank of Havildar. The commanding officer alone constitutes the court, and acts as judge and prosecutor. The proceedings of a summary court-martial are attended by two other persons, who may be officers or junior commissioned officers. They are not supposed to take any part in the proceedings and have no right to vote in determining either the findings or the sentence.

The trial procedure is summary in nature and the accused has no right to defend himself through any military or civilian counsel. There is no need for a detailed judgment or even a discussion on the evidence in these trials. An accused cannot claim that he should be governed by the principles of natural justice which apply to a civil servant under Article 311 of the Constitution.

An SCM may award a sentence of up to one year’s imprisonment and dismissal from service. There is no right to appeal against the decision of the court. The Armed Forces Tribunal, constituted under the Act of 2007, will also not be authorised to entertain appeals against an SCM, except where the punishment is of dismissal or imprisonment for more than three months.

The SCM was introduced after the Mutiny in 1857 and is peculiar to the Indian Army. This system had its origin in the union of the functions of deputy commissioner, political officer and military commandant, in one and the same person, a practice which was frequent on the frontier those days.

This union of power enabled the commanding officer to convict and sentence a native military offender and thereafter, issue a warrant for the execution of the sentence, which was respected by the civil and prison officials as emanating from him in his civil and magisterial capacity.

When a new Indian Army came to be organised on the ruins of the old one, it was realised that the hands of the regimental commanding officer would have to be strengthened if the ‘evils’ which had led to the near-disappearance of the Bengal Army were to be avoided. With this object in mind, the SCM was established as part of the legal machinery of the Indian Army.

The British legislature continued with the provision of the SCM through the Indian Army Act 1911. The Army Act, which came into force on July 22, 1950, is in essence a continuation of the Indian Army Act 1911. The SCM does not exist in the Indian Air Force or the Indian Navy. However, the BSF Act and the NSG Act, which were modelled on the Army Act, contain provisions for the SCM.

Trials held under the SCM have been criticised by High Courts and the Supreme Court for awarding excessive and harsh punishments, denying procedural rights guaranteed under Article 14 of the Constitution, lack of evidence, arbitrariness, lack of justice, and non-compliance with the Army Rules.

Such an arbitrary system of justice is not followed in any other democratic country. The SCM never existed under the British military justice system. The military justice systems followed in the U.S., Israel, China, Russia, Canada and South Africa do not have such provisions either.

The SCM has been used extensively by the Indian Army. During a period of six years, from 1999 to 2004, an average of 995 SCM were held every year. Thus many army personnel have been deprived of their livelihood, freedom and pension by their own officers on the pretext of discipline.

The unbridled discretionary power of a commanding officer to hold an SCM may degenerate into arbitrariness or discrimination and is, therefore, violative of Article 14. There is an urgent need to abolish this arbitrary system of trial carried over from the era of colonial rule.

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