THE ACCUSED IS ENTITLED TO LEGAL ADVICE IN SUMMARY COURT MARTIAL IN INDIA

The Supreme Court in a recent appeal case Jaswant Singh v. Union of India, observed that in a Summary Court Martial Jaswant Singh (Hereinafter referred to as Appellant) is entitled to have the benefit of legal representation. The bench comprising of Justice D.Y. Chandrachud and Justice M.R. Shah set aside an order of punishment of dismissal from service and six months rigorous imprisonment in civil jail, awarded to an Army Sepoy i.e. Jaswant Singh, after finding him guilty of assaulting a superior officer.

The Supreme Court held that an Appellant should be entitled to have the benefit of legal representation during Summary Court Martial proceedings.

The facts of the case are that the Appellant was enrolled as a Sepoy in the Indian Army. The Summary Court Martial Proceeding against the Appellant was held basically on two charges: –

For assault on a Superior Officer

For the use of abusive language against the Subedar who found the Appellant not properly dressed for the parade.

However, the Appellant was freed from the second charge and was found culpable for the first charge, therefore he was dismissed from the service along with six months rigorous imprisonment in civil prison.

Thereafter, the Appellant challenged this order on the grounds of violation of natural justice. The Appellant submitted that during the Summary Court Martial, he was pitted against the commanding officer and he should be entitled to be given an assistance of a Civil Advocate and legal advice.

However, the Appellant was denied on the erroneous ground that “if it was only for the offence involving a possible sentence of death, then such assistance could be allowed.”

Therefore, the two Judges Bench annulled the order of the Summary Court Martial on the grounds of violation of natural justice.

The Supreme Court said that “There was a clear violation of the principles of natural justice. The prejudice too is evident. The Appellant was dismissed from service and sentenced to six months’ imprisonment. Both his livelihood and liberty were taken away.”

The Supreme Court also referred to Rule 129 of the Army Rules, 1954, in which it clearly observed that in a Summary Court Martial, the accused may have a person to assist him during the trial, whether a legal adviser or any other person. Therefore, the Supreme Court held that “The expression ‘may’ must be read to mean that the person who is proceeded against has the option on whether or not to engage a legal advisor or any other person. It represents an entitlement to be represented,”

The Supreme Court while setting aside the order of Summary Court Martial, marked that “In the present case, the appellant had rendered seven years of service. He was pitted against his Commanding Officer. In the face of Army Rule 129, there was no reason to deny him the benefit of legal representation which he desired at his own expense”.

Satyam Singh Pal

Associate

The Indian Lawyer