Should soldiers be held to a higher standard than people in other jobs when it comes to claims of dereliction of duty?
On 2 July, the Supreme Court delivered a judgment which appears to have answered this question in the affirmative, upholding the dismissal of a soldier by the Army for cowardice – despite statements by the prosecution’s own witnesses that he was a good soldier and had taken part in several previous operations where he had shown he was not scared to perform his duties.
Justices MR Shah and AS Bopanna therefore upheld the decisions of the Armed Forces Tribunal and Summary General Court Martial (SGCM) to dismiss the soldier for the incident (which took place in August 2006), although they did set aside an additional sentence of six months’ rigorous imprisonment imposed on him.
Why Was the Soldier Dismissed?
The soldier was serving with the Rashtriya Rifles (RR) Battalion in 2006, having enrolled in the Army seven years before that. On 13 August 2006, he was part of a team which was carrying out a cordon and search operation in the village of Darigidiyan in Jammu & Kashmir.
The team had managed to confine a group of militants in a maize field, and had to keep them from breaking out at night. The appellant soldier was manning a Light Machine Gun (LMG) along with Sapper Gurnail Singh, with another Sapper supporting them to their left. During the night, the militants attacked their position.
The soldier was accused of leaving his post, jumping over a wall to get away, and failing to retaliate using his AK-47 and pistol. The militants broke the cordon, killed Sapper Gurnail Singh, and made off with the LMG. The soldier received a bullet wound in his leg.
The SGCM found him guilty of exhibiting cowardice and abandoning his post, and dismissed him from service in 2008, while also imposing the six-month imprisonment. The Armed Forces Tribunal upheld this decision and sentence in 2011, leading to the soldier’s appeal to the Supreme Court.
Why Did the Supreme Court Uphold the Accusation of Cowardice?
The soldier’s lawyer argued that the charge of cowardice was not borne out by the evidence, nor was the allegation that he had abandoned his post. A key argument he raised to defend himself was that during cross-examination, the prosecution witnesses had said the appellant was “a good soldier and had on earlier occasions accompanied the witnesses in several operations and the appellant is not scared to take part in the operation.”
The soldier also argued that he had only jumped over the wall to protect himself and then attack the militants, but lost consciousness for about ten seconds after being shot in the leg. By the time he regained consciousness, the militants had made off with the LMG. He also claimed that his AK-47 jammed when he tried to use it.
The lawyers for the Union of India and the Army pointed out that the Armed Forces Tribunal had already conducted a review of the evidence and arrived at its conclusion, so there was no reason for the court to take a different position.
They pointed out that while the soldier claimed he hadn’t abandoned his post, he had failed to explain why he hadn’t used his rifle or his pistol to retaliate – this was grave enough to warrant action against the soldier given the attack by the militants in which his companion was killed. They also noted that the Tribunal had not accepted the theory that the appellant became unconscious.
The Supreme Court judges found that they had no basis on which to find the Armed Forces Tribunal’s version of events to be untrue. In such circumstances, it would not be appropriate for them to interfere with the order, especially since the soldier had not brought any evidence on record to argue that he had been victimised.
The apex court then dealt with the question of whether the soldier’s past service record could affect a decision on whether he was guilty of cowardice. While acknowledging that past conduct is generally relevant in service matters, this same yardstick could not be applied when it came to a soldier.
The judges dismissed the soldier’s argument, saying that “in the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion on every occasion to defend the integrity of the nation since such is the trust reposed in a soldier.”
In light of this higher standard which had to be applied to a soldier, they held that:
“The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such a grave situation, if a soldier turns his back to the challenge, it will certainly amount to cowardice.”
As a result, the soldier’s dismissal was upheld by them, but in light of the lapse of time and the injury he suffered, they set aside the sentence of six months’ rigorous imprisonment.
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