Historian who got it wrong

The right course would have been for Army HQ to have reprimanded Major Gogoi, and his superiors who lauded his offence. Section 46 of the Army Act, 1950, penalises “disgraceful conduct of a cruel, indecent or unnatural kind”.

Written by Ravi Nair | Updated: June 17, 2017 3:27 pm
indian army, indian army human shield, stone pelter tied to jeep, Major Gogoi, man tied to army jeep, General Bipin Rawat, Farooq Ahmad Dar, kashmir indian army, indian express columns Farooq Ahmad Dar, the Kashmiri who was tied to the jeep as a human shield. Express

Arjun Subramaniam is an accomplished military historian. His defence of Major Nitin Leetul Gogoi and General Bipin Rawat’s comments does his scholarship little credit (‘What they don’t get’, IE, June 15). Credible accounts state that Farooq Ahmad Dar was paraded over several kilometres, strapped to a jeep with a placard identifying him as a stone-pelter, accompanied by a warning against stone-pelters, over a loudspeaker.

It is nobody’s case that the Indian army is not a disciplined army, with a rigorous chain of command and an esprit de corps. However, there is evidence of aberrations. The right course would have been for Army HQ to have reprimanded Major Gogoi, and his superiors who lauded his offence. Section 46 of the Army Act, 1950, penalises “disgraceful conduct of a cruel, indecent or unnatural kind”.

Per Section 64, failing to provide due reparation or report the case to the proper authority upon receiving a complaint — while in command at any post or on the march — that one under his command has “beaten or otherwise maltreated or oppressed any person”, is an offence.

Additionally, the “Ten Commandments” issued by the Chief of Army Staff oblige the armed forces to respect human rights. In Extra Judicial Execution Victim Families Association &Anr. v Union of India, the Supreme Court invoked the Ten Commandments, stating: “It is quite clear from the various instructions issued (which are binding on the armed forces) that minimum force is to be used even against terrorists, militants and insurgents.There is absolutely no reason why an equally toned-down response cannot be given by our armed forces in times of internal disturbances and why no enquiry should be held if the response is alleged to be disproportionate.”

The Army Headquarters also issued a list of “Dos and Don’ts” to be followed while acting under the Armed Forces (Special Powers) Act, 1958. In Naga Peoples’ Movement of Human Rights v Union of India, the Supreme Court declared that “officers of the armed forces shall strictly follow the instructions contained in the list and any disregard to the said instructions would entail suitable action under the Army Act, 1950.”

The list provides for only that minimal force required for effective action against the person(s) acting in contravention of a prohibitory order and specifically prohibits torture, harassment of civilians and use of force after the arrest, except when the arrested tries to escape. If Dar had been indulging in or inciting violence, he should have been handed over to the police, rather than being publicly paraded, as has been alleged.

The FIR against 53 Rashtriya Rifles for the act of using a civilian as a human shield was registered under the sections of wrongful confinement, criminal intimidation and kidnapping— all offences under the RPC. Under Section 69 of the Army Act, a person subject to the Act is deemed guilty if he commits any civil offence. Using a person as a human shield would also fall under Section 69.

While self-defence is an exception under criminal law, the right of private defence does not extend to the use of disproportionate force — it does not permit the strapping of a person to a jeep with a placard labelling him a stone-pelter and parading him.

Further, the burden of proving that the circumstances fall within the general exceptions are on the accused. Despite this, the Indian army chief has stated that the major will face no action even if the military investigations find him guilty, and in fact, went on to award him the Chief of Army Staff’s commendation card. The right to life under Article 21 of the Constitution also means the right to be treated with dignity. In Prem Shankar Shukla v Delhi Administration, the Supreme Court held, for example, that handcuffing undertrials and parading them violates Article 21.

In Shri Kisan @ Kisanchand Tharurmal … vs The State Of Maharashtra, the Bombay High Court held that such an action,”..afforded the public at large an opportunity to see the petitioner being taken in this manner, the inevitable consequence of which, it goes without saying, is the feeling of humiliation overtaking the petitioner.” The action “amounted to giving of cruel and degrading treatment to the petitioner thereby violating his fundamental right with regard to his liberty and dignity under Article 21 of the Constitution of India”.

Subramaniam, no doubt, is familiar with C. Rajagopalachari’s erudite exposition of the Mahabharata. The story of Srutayudha in it states that one who kills a non-combatant faces an eternal curse. Indian civilisation reveres humanitarian principles. Hindutva does not. What we choose decides what we are and will be.The writer is the executive director, South Asia Human Rights Documentation Centre

The writer is the executive director, South Asia Human Rights Documentation Centre

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    Suresh Hattangadi
    Jul 21, 2017 at 6:54 pm
    There are many sanctimonious writers like this writer.And all these have come up after 2014.As if there were no occasions earlier to comment on Govt./Army.They were probably sleeping that time.
    Reply
    1. G
      Gerald Fernandes
      Jun 19, 2017 at 1:12 pm
      Are there only two colours (black and white) in the writers palette ? Does context even matter ?
      Reply
      1. U
        utpal
        Jun 19, 2017 at 12:33 pm
        Mr Ravi Nair, Our country's biggest problems are pseudo intellectuals like you and historians like Partho chatterjee ... who are hypocrates no 1. Go and stand in the Kashmir warzone and face the music of pak sponsored terrorists bullet ... then only you intellectual on line human rights activists guys will realize and may change your bookish analysis against Indian Army. Indian Army is a responsible and the great armed forces in the world today . They along with Indian mass do not require analyst like you. May good sense prevails on you pseudo intellectuals like you before you write your next online Natakbaji
        Reply
        1. S
          Somnath ghosh
          Jun 18, 2017 at 9:59 pm
          Indian army is right
          Reply
          1. S
            Somnath ghosh
            Jun 18, 2017 at 9:59 pm
            Indian army is right
            Reply
            1. D
              Dharamvir Saihgal
              Jun 18, 2017 at 1:41 pm
              If I were him,I would have been a proud Indian to have been a tool in saving the precious lives of many fellow Indians.I sincerely wish,I had such a golden opportunity to serve my motherland.If and when,I am reborn,I wish to repay my debts to my motherland in one or the other ways.Lucky and immortal are those, who come back home,wrapped in the immortal tricolour,since heaven is the ultimate abode of the braves.
              Reply
              1. R
                Rishi
                Jun 18, 2017 at 12:33 pm
                The Army need not take the advise of the historians to decide what to do in a given situation. Would the historian have taken the credit if the life of the election staff been lost. Thanks to the arm chair experts.
                Reply
                1. R
                  Ravi
                  Jun 18, 2017 at 11:05 am
                  I am not from any cybercell. I do not need to be one, to express my opinion and I certainly do not give unceremonious labels to others who have contrarian views, though it is easy to put a label on you! Is an army man who is supposed to die for the country die willingly at the hand of his countrymen or allow his countrymen to kill policemen? What is the valid and politically correct self-defense against a crowd whose intent is to cause grievous harm to their own countrymen at the instigation of ISI-sponsored terrorists? Do post a reply, it will surely be amusing to me. If the Major had not done this act, what could the next day headlines be :- 1. x policemen martyred. Terrorists blah blah blah...Mufti condemns blah blah blah. Strict action blah blah blah... Who and what could console the slain policemens families? You or an article by Ravi Nair? 2. Army injures crowd by use of pellet guns. 'Peaceful' protesters blinded. UNHRC and Pakistan condemn use of excessive force blah blah blah.
                  Reply
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