My piece on military injustice, also published @ Medium.
Not many in India would have
heard about a young British soldier called Private Harry Farr. Not many would also have heard about the ‘shot
at dawn’ memorial at Staffordshire in the United Kingdom.
The memorial is a tribute to
309 British and Commonwealth soldiers who were court martialled and shot during
World War I primarily for offences of cowardice and desertion. Young Harry Farr
was one of them. This battle hardened soldier fought bravely for the British in
the First Great War. His trench was shelled and he sustained a disability due
to which he was repeatedly admitted in hospital. At one stage he was refused
admission in a medical establishment on the pretext that he was not ‘physically
wounded’. He was suffering from ‘shell shock’ or what is now known as Post
Traumatic Stress Syndrome (PTSD).
Private Farr, in a fragile
frame of mind, went missing for three hours, and when located, was arrested and
arraigned before a Court Martial, which, after a mere twenty minutes of trial,
awarded the punishment of death by a firing squad.
The family fought a long war
for justice when documents were discovered that despite his medical condition
the young soldier had been forcibly sent to the front. The family could not
meet success even at the High Court. Despite being refused positive judicial
intervention, the United Kingdom, in 2007, granted a posthumous pardon to
Private Farr thereby restoring the family’s honour. And with him, due to lack
of individual evidence, a total of 306 soldiers executed that dawn were
pardoned, providing them the benefit of doubt.
Then is the story of Lieutenant Henry O Flipper of the
United States Army. Lt Flipper, born a slave, was the first African-American
cadet at West Point to have graduated and commissioned in the US Army. As a
military engineer, he was the inventor of the ‘Flipper’s Ditch’, a drainage
system for malaria infested swamps, which is still used. Lt Flipper was accused
of embezzlement and Court Martialled. He was found ‘not guilty’ of embezzlement
but convicted for ‘conduct unbecoming of an officer’ for not having informed
his Commanding Officer about some missing funds in his unit, and dismissed from
service in the year 1881. Post his dismissal, Lt Flipper built up a successful
career also recognized by the Government which appointed him at high offices.
Interestingly, despite having been dismissed from service, West Point
instituted an award in his name and placed his bust in the academy. Perusal of
documents of the conviction pointed out the bias in his trial. It was long
thought that his dismissal was the result of an inherent resentment towards
African-Americans at the time. It was also discovered that the then Judge
Advocate General of the Army wrote a detailed note to the President stating
that his dismissal was unwarranted but it was never put up to the President and
his dismissal was approved through a one-line non-speaking order. While
reviewing the documents and showing moral courage of impeccable nature, the US
Army in the year 1976 opined that his conviction was unjust but also stated
that it had no power to overturn it, however his dismissal was converted into
‘honourable discharge’ which was permissible with the powers of the Army. In
1999, fully restoring the honour of the first officer of colour commissioned
into the United States Army, the then President, William J Clinton, granted a
full and unconditional pardon to Lt Flipper.
It’s ironic that the basic
provisions of Courts Martial, especially Summary Courts Martial, practiced by
the British during World War I, remain the same as on date under the Indian
statute except cosmetic changes. The only real changes in how the provisions
are effectuated have been forced upon the system due to judicial intervention
primarily by the High Courts and the Supreme Court over the years. Though it is
also totally agreeable that today’s military hierarchy is much more sensitive
towards injustice or miscarriage of justice than the rank and file of the
yesteryears. There was a time when the Courts could not even go into the
appreciation of evidence of Courts Martial, something which was altered much
later in the year 2009 with the inception of the Armed Forces Tribunal.
Why
do I write this.
Why I am writing this here
today is that due to the primitive nature of military justice being practiced
in our country in the past, there are glaring instances of injustice and miscarriage
of justice that have come to light years later, some due to a closer analysis
in hindsight. Some are such which appear so nonsensical that these would not
seem compatible with any of the values professed by our great military which is
the pride of the nation. Many affected fought it out and succeeded, but some
lost judicially and yet others did not even try. Some died without closure,
some are living and looking for closure, and interestingly, under the Indian
law, setting things right, even after a judicial verdict to the contrary, is
not a far-fetched idea and is in fact provided by the statute, thereby
triggering my urge to write this today.
Two glaring examples come to
my mind:
The
Samba Spy Case
Much has been written about
this case popularly known as the Samba Spy Scandal. Many books have also
been penned. Many of those affected have exhausted their legal remedies as per
law and the judgment rendered in their favour by the Delhi High Court was
ultimately overturned by the Supreme Court on an appeal filed by the Union of
India. There is, hence, no judicial remedy remaining. But other doors are still
not closed, as I would explain a little later. Coming back to the case, de
hors the fact that they were unable to secure a final decision in their
favour, there are some extremely jarring notes that would move even an
untrained non-legal eye-
All
accused were implicated essentially on just the statements of two spies, that
is, Sarwan Das and Aya Singh and an officer of the rank of Captain who
implicated (by his statements) about 52 personnel including, hold your breath,
an officer of the Judge Advocate General’s department. The two spies were
initially arrested in 1975 but they apparently named others in 1978. The said
Captain clearly stated in his cross examination that he had been badly tortured
to elicit his statements.
The
entire case was built up on the premise of the statement of Aya Singh that one
Capt Nagial was the initiator and had visited Pakistan in the year 1974. The
charge was later established to be false and Capt Nagial was acquitted of the
same by a Court Martial but implicated and convicted in some other case. When
the foundation itself was faulty, there was no reason for proceeding in the
matter.
Around
40 to 50 personnel and officers were finally accused of spying for Pakistan.
All of them were from the same location of a Brigade based in Samba, a small
town. Is it possible for such a large number of people being involved in spying
for Pakistan from such a small station?
Statements
were obtained from another Havildar, called Ram Swarup, who died of injuries
after interrogation. The case was built up on confessional statements but there
were large-scale allegations of torture.
Aya
Singh, the kingpin on whose statements the case had progressed, was apparently
killed later while crossing the Indo-Pak border. Could a person with such
credentials be considered a reliable witness and could his statements be relied
upon to implicate such a higher number of personnel located in a small town?
When
no evidence was found by Court Martial against some personnel, their services
were administratively terminated.
It
is understood that a report was sought by the then Prime Minister from civilian
agencies which established that the large-scale implications were no true.
Swaran
Dass later made an open statement under oath that he had implicated innocent
personnel after being tortured. The statement, made in 1994, was widely covered
in the media as
were other aspects of the case.
The above points do shake
the very foundation of allegations of a large-scale conspiracy. On the face of
it, something drastically went wrong somewhere but the wheels were not turned
back to avoid criticism.
The
curious case of Brig Pritam Singh
In one of his recent articles, Lieutenant General HS Panag,
the former General Officer Commanding of Indian Army’s Northern Command,
provided an interesting insight into the travesty faced by Brigadier Pritam
Singh, known as ‘Sher Bachha’ (Son of a Tiger) on account of his stellar
contribution to the battle of Poonch in 1947. Wounded in World War II, Brig
Singh was also awarded the Military Cross after he escaped a Prisoners of War
Camp. For one year, Brig Singh, then a Lt Col, resisted all the might of the
enemy and ensured the retention of Poonch with India. He was promoted to the
rank of Brigadier immediately thereafter (as per the system in vogue, officers
were promoted directly from Battalion Commanders in the rank of Lt Col as
Brigade Commanders in the rank of Brig). Though his contribution is legendary
and he was again wounded in the Poonch operations, which area would have had a
different history but for the valiant officer and his resolve, this piece is
not about his military prowess. Brig Singh, in 1951, was dismissed from service
by way of a Court Martial for misappropriating a sum of about Rupees Ten
Thousand and a carpet. Other charges were also put into motion, but all
collapsed. The carpet was meant as a present for the Air Force from the Raja of
Poonch but it was alleged that Brig Singh had stolen the carpet for his own
use. Despite the testimony of the Raja that it was indeed a gift from him to
the Air Force which was being transported by Brig (then Lt Col) Singh’s
battalion, the Court Martial went ahead and convicted him without even
examining any evidence or witness in his presence as mandated by law. The
allegation of misappropriation was with regard to excessive amount drawn than
the actual expenditure and the time when the offence had supposedly occurred
was a period when Brig Singh was admitted in a hospital after being wounded in
war. Failing to pin him down on corruption charges, the Court Martial managed
to convict him primarily on procedural lapses. It was well known during those
times that many of his peers were envious of the trajectory of his career and
the accolades he had achieved and the word amongst the military masses was that
the entire episode was a result of this jealousy to stop his ascent.
Those times were strange.
Punishments handed down by the military were not questioned. Courts were loath
in entertaining petitions against military authorities and individuals were not
aware of their rights. The direct result was that many injustices went
unchallenged and this too, perhaps, was one in that list.
Bigadier Pritam Singh died
in Punjab, unsung.
Restoring
the Clock.
However, there is still a
chance of redemption, but not by way of judicial remedy since the same is
closed in the Samba Spy Case and barred by limitation in Brig Pritam Singh’s
case. The fact that many of those who were affected are no more living makes
the situation even more complicated.
Though invocation of
judicial remedy is not possible, the Central Government still can very much
undo the harm caused to the very concept of justice in such cases. Section 165
of the Army Act empowers the Government to annul any proceeding of any Court
Martial on account of being illegal or unjust. This power is unfettered and it
does not matter whether a person has exhausted his or her legal remedies or
not, and with what result. If, based on the material available, the Government
comes to the conclusion that the Court Martial was not just, it can annul the
entire proceedings and restore the honour to those who were treated unjustly.
In cases of those whose services were terminated or Presidential Pleasure
withdrawn, the same, being merely an administrative non-judicial act, can
always be reversed by the same authority which had passed the orders of
punishment in the first place.
The remedies that I speak of
above are not ordinary and are meant for extraordinary situations. However,
keeping in view the fact that the systems of military justice in the
yesteryears were primitive and there is a possibility of innocents having been
meted out unjust punishments, it would only be right, with due diligence, to explore
this exercise with full moral courage for restoring their honour.
We need our own version of
Private Farr and Lieutenant Flipper here. Though there is bound to be
resistance in such cases citing wrong precedents being set, a hackneyed and
regularly exercised excuse, a strong political will can make it happen.
Besides, setting aside of unjust actions is not a new phenomenon and that is
the very reason such rules exist to undo miscarriage of justice. If
‘precedents’ are to be given so much undue emphasis, then the mere existence of
those provisions in the statute book becomes superfluous and infructuous.
Will we have our Farr and
Flipper moment in India?
Time will tell.
