The Kashmir human shield issue: Why Maj. Nitin Gogoi is wrong

By Omar Abdullah

Srinagar, May 25/Indian Express

On April 9, the day of the election to the vacant Srinagar parliamentary seat, a cornered paramilitary unit in Budgam district called the army for assistance to secure a polling booth they were afraid would be run over by a mob. The army unit that responded to this call reached the spot and decided to grab Farooq Ahmed Dar, a civilian who had incidentally voted in the same election that morning. The unit marched him at gunpoint through the mob, using him as a human shield, securing the booth, after which they moved Dar out — again, at gunpoint.

When the army’s Major Nitin Leetul Gogoi saw the operational “success” of this “manoeuvre”, he ordered for Dar to be tied to a jeep in his column of vehicles and paraded him through at least nine different villages — dehumanising him as a toy, exhibiting him as a “lesson” for stone-pelters, as the blaring loudspeaker kept reminding locals.

Once the video of Dar, tied to the jeep and being paraded through one particular village, surfaced on social media, the justifications started pouring in. The all too familiar bandwagon of muscular, unquestionable, unaccountable nationalism condoned the assault on Dar’s dignity and person with remarkable aplomb and alacrity, commending Major Gogoi for the “dynamic call” he took “to save lives”.

The first presumption that has been blindly accepted is that Dar was a “stone-pelter” who — hence automatically — deserved what he got. According to Dar — and local reports validate this claim — he was a voter who had cast his vote the same morning before this incident, that too in an election that saw an unprecedentedly low turnout. Secondly, even if he had been a stone-pelter, the army resorting to using an Indian citizen as a human shield is a moral and legal question that needs to be answered in congruence with the fundamental rights enshrined in our constitution, our laws and the principles we have vowed to protect as a democratic nation, both internally and at international fora.

Did Major Gogoi have the right to pronounce the judgment and carry out the punitive action that he did? Were Dar’s rights — to liberty, dignity and constitutional remedy — tossed out of the window for the “greater good” — as perceived by Major Gogoi?

The second argument is that this rather unusual action by the army helped save lives and avoided what looked like an imminent bloodbath in that area. I agree that Kashmir is not an ideal operational atmosphere for the army and the army shouldn’t be used to contain and manage internal situations such as these. I agree that this is a complex situation and at times, there are no simple answers. I, however, shudder in horror at the carte blanche this argument provides to the security forces in all such future situations of dealing with agitations and protestors in Kashmir.

Sadly, looking at the failure of the incumbent government, the political vacuum perpetuated by the Central government and the very nature of the unresolved issue, there will be plenty of such situations in the future. Have we set a precedent that allows an individual officer to take the law into his own hands and use an Indian citizen as a human shield as and when he deems it appropriate and necessary — to “save lives”?

The rank whataboutery and the usual comparisons that are being summoned to justify Major Gogoi’s decision — the violation of the military code and the Geneva Convention — are half-baked, deeply prejudiced and often muscular arguments, based on the now-popular notion that daring to hold the institutions of the state to the standards enshrined in our constitution is somehow treacherous and earns one a one-way ticket to Pakistan. “What about the stone-pelters?” is the instinctive question. My humble counter-question is, will we and should we, hold our army to the standards set by stone-pelters and agitating mobs now? Is that the indication of this inference? God help us if that’s the way we are headed.

The most dangerous out of the current slew of arguments endorsing Major Gogoi’s decision is the good old maxim that tough times call for tough measures — how the major responded to an extraordinary situation with an extraordinary solution and should be hence rewarded and commended. In a column for The Indian Express (I applaud Maj.Gogoi) Indian Express, May 20), the honorable Chief Minister of Punjab, Captain Amarinder Singh, has gone to the extent of recommending Major Gogoi for the coveted Distinguished Services’ Medal while appreciating his “remarkable presence of mind” and the “timely action” of using an Indian citizen as a human shield. Needless to say, I strongly disagree with Captain saheb.

Quoting from his piece — “Tough situations warrant tough reactions, and dangerous situations often, if not always, merit daring actions. When Major Nitin Gogoi decided (and, mind you, it could not have been anything other than a split-second decision) to use a civilian as a “human shield” to protect his men from a stone-pelting mob, he was simply reacting to a tough situation in a dangerous environment”.

The “use of a civilian as a ‘human shield’ to protect his men from a stone-pelting mob” is astounding. Since when is our army allowed to subvert the fundamental rights of our citizens to save itself in extraordinary situations? To reiterate — the construct, that tying Farooq Ahmed Dar to the bonnet of the jeep was an extraordinary act that resulted in the prevention of violence and the consequent loss of lives, is at best a hypothesis in foresight and, at worst, outright blackmail, trying to disarm the moral and legal quotient in the counter-argument. For who can oppose something, however strange, inhumane and illegal, that results in lives being saved?

Second, the last time I checked, the army is duty-bound to protect the citizens of this country and their fundamental rights — not only its own men and certainly not at the cost of civilians and their rights, in any given situation, ideal or not. And Farooq Ahmed Dar — voter or not, “stone-pelter” or not — was a citizen of India who should not have been used as a human shield, regardless of circumstances. Period.

Major Gogoi’s decision to use Dar as a “human shield” is not about “a stand contrary to that of the majority”, as Amarinder Singh points out. It’s a violation of the Geneva Convention, a violation of the Constitution of India and a violation of the military code. The majority condoning or condemning this action is irrelevant so long as we are still governed by the constitution and the law of the land, and not majoritarianism. Pertinently and most recently, the Geneva Convention was invoked in the case of Kulbhushan Jadhav and rightly so. Can we morally afford to mock the same convention in Kashmir, which clearly and unequivocally categorises the use of human shields as a “war crime”— no ifs or buts?

Captain Singh is of the opinion that Major Gogoi tying Dar to the army jeep was allegedly and “possibly the only sane and logical course of action available to him, in the circumstances”. Have the fundamental rights of our citizens become so variable and open to interpretation that a “possible” and apparent logical merit of subverting these rights can be a valid justification for using a citizen as a human shield? Who gets to decide which specific rights are open to subversion in given circumstances, and which rights are absolute, regardless of the circumstances? Who gets to dispense with the “heart and soul” of our constitution for the variably perceived “greater good”? Who gets to decide what the “greater good” is and what costs the people of Kashmir should bear to uphold one particular definition of “national interest”?

A jawan’s life, in no shape, way or measure is or should be a “dispensable commodity”. I strongly agree with Singh here. Our jawans have rendered innumerable and unimaginable sacrifices in Kashmir; of that, there can be no doubt. I would hope that he too agrees with me that the life of an Indian citizen — his right to dignity and the due process of law — is not a “dispensable” matter either, to be rightly projected as the glory of our democracy when we criticise Pakistan, and to be put into abeyance when we deem such a call to be a “remarkable presence of mind”.

What of Farooq Ahmed Dar and his rights? The State Human Rights Commission (SHRC) has highlighted hisalarming state of mental health. Doctors who have seen him vouch that he is traumatised — perhaps beyond repair. Come to think of it, he was a precious part of the paltry seven-odd per cent who chose to come out and vote against all odds on that fateful day. In a conflict-ridden state, with millions of horrifying tales of extra-judicial excesses and atrocities by non-state actors as well, how many more Farooq Ahmed Dars can we afford to create and what is the cumulative effect on the youth of the state?

To somehow portray that such actions would strengthen the writ of the government in J&K is ironic. An elected government is sworn to protect the rights of its citizens — voters, non-voters, agitators, pacifists alike. A subversion of fundamental rights and a violation of the Constitution of India, validated by no less an authority but the Union defence minister and the army chief, calls into question the very legitimacy of the government in J&K, not to speak of its non-existent writ. Our chief minister condemned the act of using Dar as a human shield — if she cannot ensure that her own alliance partner supports her on the basic premise of upholding the civil liberties of her people, her government loses the moral right to govern.

I am astounded by Amarinder Singh’s subtle endorsement of “a tooth for a tooth and a nail for a nail” response, especially given how he has rightly acknowledged the sensitivity of the issue by endorsing how Jammu and Kashmir remains “volatile”. From the unprecedented rise in the number of local boys joining militant ranks and how, for the first time since the eruption of the turmoil, local militants far outnumber foreign militants, the fundamental question in Kashmir is that of alienation — to presume this surge in alienation can be dealt with, and reversed, by using an “iron fist” is a tried, tested and failed response. It hasn’t worked for the last 30 years. It is not going to work now.

The greatness of great nations lies in holding their institutions to the highest possible standards of law, humanity and constitutional propriety. In fighting armed militancy or any form of internal conflict, the state cannot abdicate its responsibility to uphold the fundamental rights of its citizens by holding its army accountable. In an allegedly binary choice, between protecting the morale of the armed forces on one end and risking the faith and trust of the people of Kashmir on the other end, I earnestly hoped we would succeed in striking the balance of justice and fairness. Quoting from Romans 12:21, “Do not be overcome by evil, but overcome evil with good”.

The test of the “idea of India” lies in the ability of the state and its institutions to be good in Kashmir — regardless of the circumstances. Sadly, however, following the defence minister’s cue on Friday and other significant voices of support in the establishment, the army chief has announced a commendation for Major Gogoi while we still await the verdict of the army’s court of inquiry into the Budgam incident. We have been told the commendation is a “general” reward and appreciation of Major Gogoi’s service in counterinsurgency operations and not specific to what happened in Budgam. The message however is loud and clear; the army chief’s commendation is the state thumbing its nose at the inquiry, making a grand mockery of the “investigation”. The officer has not only been exonerated in advance but also rewarded for an act that warranted penalisation and disciplinary action. What court of inquiry will dare go against the implied will of the defence minister and the army chief?

The window for such “dynamic calls” has been opened in Kashmir. The consequences could be disastrous. The use of human shields is now officially fair and justified in a Kashmir that stands more alienated than ever before. That’s the long and short of it.

( Maj.Nitin Gogoi, the officer who made Farooq Dar a human shield and won a counterinsurgency  medal for it)