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”.
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