Soldier should rise to the occasion on every occasion: SC junks former Army man’s plea against dismissal for cowardice

Soldier should rise to the occasion on every occasion: SC junks former Army man’s plea against dismissal for cowardice

Meera Emmanuel

The Supreme Court recently dismissed an appeal filed by a former soldier of the Indian Army against his expulsion for exhibiting cowardice. A judgment to this effect was passed on Tuesday, after witness testimony favouring the past conduct of the soldier failed to impress the Court.

Commenting on the conduct expected from Indian soldiers, the Bench of Justices MR Shah and AS Bopanna observed,

“… 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.”

The Court went on to remark that joining the Army cannot be put on par with other forms of employment, particularly when it comes to discerning the punishment appropriate for misconduct.

Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied.”

In the instant case, the appellant stood accused of leaving his post during a 2006 military operation in Darigidiyan, Jammu and Kashmir. The appellant had been posted to man a Light Machine Gun (LMG) along with another soldier, near a maize field where a militant had taken shelter.

However, after heavy fire came from the maize field, the appellant was said to have left his post, jumped across a nearby wall and failed to retaliate. As a result, the militants broke the cordon, killed a soldier co-manning the LMG and took away the LMG.

Following a Summary General Court Martial (SGCM), the appellant was convicted for exhibiting cowardice and abandoning his post. For these charges, he was sentenced to six months’ rigorous imprisonment, apart from dismissal from the Army. His appeal against the SGCM verdict was thereafter dismissed by the Chandigarh Bench of the Armed Forces Tribunal in 2011.

This led the appellant to call on the Supreme Court to reconsider his penalty. He argued that he had also sustained a leg injury while jumping over the wall. Further, he submitted that he was unconscious thereafter for 10-15 minutes, during which time the militants sprang to action. He also stated that his guns were jammed when he attempted to retaliate.

The Court, however, found his explanation implausible. As noted in the judgment,

“… there is no explanation as to why even in a grave situation he had not made use of either the AK­ 47 gun or the pistol which was in his possession as a mark of retaliation. In that circumstance, it is contended that when in the attack carried out by the militants the colleague of the appellant late Gurmail Singh had died and there was no action from the appellant, it is a grave situation which warranted the action taken and the same does not call for interference...

… apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed. Though he has contended that he had jumped the wall to protect himself, there is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured.

Even if the explanation sought to be put forth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which had prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG.”

Therefore, the Bench proceeded to dismiss the ex-soldier’s appeal and upheld his expulsion from the army. The Court noted,

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 grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. If in that background, the action taken against the appellant is taken note, we are of the opinion, that the SGCM and the Armed Forces Tribunal were justified.”

However, the Bench set aside the the imprisonment sentence served to the appellant, remarking,

… though the appellant had exhibited cowardice, the fact remains that he had also received a gunshot injury in the incident. Further, there is long lapse of time and as such in the peculiar facts and circumstance we are of the opinion that the order of imprisonment need not be implemented at this stage.

[Read the Judgment]

Bar and Bench - Indian Legal news