Major Nitin Leetul Gogoi must be congratulated for being awarded the coveted Chief of Army Staff (COAS) Commendation Card. The award, according to the Indian Army spokesperson, has been given “for sustained efforts in Counter Insurgency (CI) Operations”. The award apparently has been given for displaying exceptional initiative, courage and “out of the box” thinking on April 9, 2017. He successfully rescued election commission personnel on duty at two polling booths from violent stone-throwing mobs baying for their blood, using a civilian, Farooq Ahmed Dar, as a “human shield”.

The history of the CI campaign in Jammu and Kashmir will never be complete without a mention of his name. Such is the impact of his action, that the term “Gogoi Tactics” may soon be part of the theory of tactics and an accepted norm for the Indian Army in CI Operations. Also, anyone using a human shield or doing any other human rights violation in future in order “to avoid casualties”, will rely upon the “Gogoi Principle” for his defence. And therein lies the problem.

The COAS who has shown a ‘great sense of judgment’ and displayed moral courage in announcing the award even before the finalisation of the Court of Inquiry ordered by the Army and the investigations by the J&K Police allegedly ordered due to the ‘counter narrative’ put forward by so-called ‘anti-nationals, terrorists and bleeding hearts’. I have no doubt that he has thought through the fallout of his decision which will have far-reaching consequences for Indian Army’s conduct in peace and war.

It must be noted that the COAS Commendation Card is the second lowest award in the hierarchy of gallantry and distinguished awards. It is awarded for “Individual acts of gallantry or distinguished service or devotion to duty performed either in operational or non-operational areas which are not of a sufficiently high order to qualify for higher gallantry or distinguished award or for which the higher award is inappropriate”. It has been argued that since there “was no direct combat”, a gallantry award would have been inappropriate. Although in this situation, this logic is open to debate, but surely given the display of exemplary courage and innovative tactics, Major Gogoi deserved a higher award given for wartime (including CI operations) distinguished service such as the Sarvottam Yudh Seva Medal, Uttam Yudh Seva Medal , Yudh Seva Medal and Sena Medal (Distinguished). Or was there a reluctance that an inappropriate precedence is being set to be in sync with the “mood of the nation” and any future fallout must be minimised? Or maybe, since the present commendation is for “sustained efforts in CI Operations”, the Indian Army will consider him for a higher award for this specific act on August 15. Although an award, high or low, is an award, but tokenism in this regard was avoidable.

There are three major implications of this commendation and the virtual exoneration of Major Gogoi for an action which violates the Indian Army’s Standard Operating Procedures, Rules of Engagement, COAS Commandments, Supreme Court Guidelines for application of the AFSPA, Article 21 of the Indian Constitution and is an offence under Army Act Section 63 and Section 69 read in conjunction with the IPC. None of these rules, regulations, guidelines and acts of law make an exception for “circumstances” or the “unique situation” or “bona fide actions to save casualties”. There is no doubt that “intent” and “circumstances” do matter, but that is a matter of law to decide once the charges are filed and are not decided by emotions.

First, a bad precedence has been set in the procedure for giving honours and awards. Whenever a citation for an award is forwarded for consideration, a certificate is given that the individual is not facing any disciplinary action. This implies that if an individual is under investigation, he will not be considered for an award. In this case, two investigations were in progress. A Court of Inquiry was ordered by the Army on April 15, 2017, and is yet to be finalised. An FIR had been registered by the J&K Police on April 13, 2017, and the case is still under investigation. Even if one may legally explain away this requirement based on a Supreme Court judgment, it is not ethically right to ignore it. Additionally, instead of waiting for August 15 or January 26 when such awards are normally announced, an “on the spot award”, conferred in person, was announced. The award was actually announced in absentia on May 1 at Headquarters 15 Corps, even though Major Gogoi was only an hour’s drive away.

Second, the Military Justice System has been flouted with impunity which will have long-term ramifications. A Court of Inquiry is a formal fact-finding body of Officers or Officers and JCOs/NCOs that is directed to collect evidence and, if required, to report with regard to any matter that is referred to them. It can be ordered by any officer in Command of any body of troops. It is ordered through a Convening Order which is a formal document wherein the Convening Officer or the appropriate military authority in command specifically spells out the character of the information required. The Court can be reassembled any number of times by the Convening Officer to reconsider or examine fresh facts.

A Court of Inquiry records facts and follows the provisions of the Indian Evidence Act. The proceedings of a Court of Inquiry are confidential. Neither the Convening Officer nor any other authority is supposed to do or say anything that may influence the mind of the Presiding Officer and members. Anyone doing so commits an offence under the Army Act. This is to ensure absolute impartial conduct and independence. Once the Court of Inquiry is finalised, the officers in the chain of command record their recommendations until it reaches the Convening Officer. He examines the inquiry in detail and records his opinion and issues directions for further action as deemed necessary.

In this case, the independence and impartiality of the Court of Inquiry have become suspect and reflects that a sham justice system prevails in the Army. On May 15, according to the media, there were leaks from “reliable army sources” that Major Gogoi has been “exonerated” by the Court of Inquiry. Under pressure, these statements were denied by the Army Spokesperson. The award was announced on May 1, although the news of this only broke on May 22, 2017.  The Court of Inquiry ordered on May 15 had been in progress for only 21 days. They were inquiring into the circumstances under which the events of April 9 involving Major Gogoi have taken place. What message would the Chief’s virtual exoneration of Major Gogoi by announcing the award on May 1 send to the Court of Inquiry? If that was not enough the COAS in a formal interview to Economic Times published on May 24, went a step further. I quote:

“What about the Army court of inquiry against Major Gogoi?”

COAS: “A court of inquiry is for fact finding. It finds a person guilty/not guilty. The present court of inquiry will come to its conclusion but what I have learnt is that he has not committed an offence that will necessitate disciplinary action. On the face of it, even if he is found guilty of some lapse, no major action will be taken against him. I find no reason for major action to be taken against him.”

The COAS clearly acknowledges that the Court of Inquiry is still in progress. Then he says, “what I have learnt is that he has not committed an offence that will necessitate disciplinary action”. Now the proceedings of the Court of Inquiry are classified “confidential”. Not even the Convening Officer is privy to the proceedings. How did the COAS come to know the details? With confidentiality flouted with impunity, what is the sanctity of Indian Army Court of Inquiries? Can they be considered impartial? Will they ever inspire confidence in the accused or the public? If there was any doubt about the confidentiality having been flouted, the COAS again reiterated in an interview to PTI on May 28, “I know what is happening in the Court of Inquiry. It is being finalised. What do we punish him for?” Court of Inquiries for long have been under the scrutiny of the Courts for lack of legal impartiality and this episode will strengthen the suspicion.

If that was not enough, the COAS goes on to say in his interview to Economic Times, “On the face of it, even if he is found guilty of some lapse, no major action will be taken against him. I find no reason for major action to be taken against him”. This statement virtually makes the entire Military Justice System suspect and will be exploited by all accused in future. Even before the Court of Inquiry, which is the first step of the legal system, is finalised, the COAS has already given the judgment. What message would it send to the Presiding Officer of the Court of Inquiry and the Members of the Court Martial if at all one is held? Let there be no doubt that irreparable damage has been done to the reputation of the Military Justice System.

Third, the most serious fallout from this incident is that it by default defines, albeit incorrectly, the “image of the Indian Army” and more dangerously sets a benchmark for its future conduct. So far, no formal official statement had been given at any level to say that this was a one-off incident and that these are not the tactics of the Indian Army and that such an action will never be repeated.

To the contrary, the entire effort has been to justify the action and defend, laud and reward Major Gogoi. He was paraded before the media to further fuel the charged emotions of the nation. The Indian Army has defended the actions of its soldiers by issuing formal press statements through official spokespersons and by senior officers. An Army does not throw its officers or soldiers to the wolves. The media in this situation was cooperative, but may not be so in future.

The entire focus is on the “large mob baying for blood”; “need to save the hostages held”; “need to prevent casualties if ‘force’ as per SOP was used”; “out of the box novel tactics” dictated by the situation; and “need to give freedom of action to soldiers in war like situations”. Any situation in J&K, except on the Line of Control, has all or most of these ingredients present. Security forces either face violent stone-throwing mobs or terrorists holed up in houses in the village who inflict casualties on the troops, or a combination of terrorists and active stone-pelting mobs who join the battle to protect them. In all these situations, casualties of protestors and troops take place apart from the terrorists being killed. In future, “hostage situations” are likely to be common. The use of “human shields” is the easiest course which will be taken to minimise casualties in every situation. It may even lead to terrorists being captured alive. Even if “human shields” get killed, as might be done deliberately by the terrorists to discredit the army, it will only add “unwilling martyrs” to be lauded, applauded and rewarded.

The unusual emotions and deviations unleashed by this incident will impact the psyche of the soldiers in CI Operations. Less by design and more by default, use of “human shields” might become the norm. The benchmark of the “Gogoi Principle” with the full backing of the Army and the nation is set so high that no counter-argument or legal logic can defeat it. This will be the defence of all those who perpetrate violations of Human Rights in future.

A clear official statement issued on April 9, 2017, unequivocally stating that these are not the tactics and rules of engagement of the Indian Army and that the matter will be investigated and action taken as deemed necessary, would have settled the issue. Once the investigation of the case was over, Major Gogoi would have been let off with a rap on the knuckles if his version was correct or dealt as per law if the version of Farooq Ahmed Dar that it was a stand-alone rogue action, was correct.

We have deliberately put a millstone around our neck and caused irreparable damage to the system of awards, Military Justice System and our moral reputation built over 61 years of successful counter-insurgency operations.
The failure of the aim of the ISI, the separatists and the terrorists has been to make their terrorism appear like a war between the people of J&K and the Indian Army. Even in the worst of times, people continued to have faith and respect for the army. Our crude handling of the violent mobs in the last one year and the trumpeting of the success of the “human shield”, egged on by an emotional nation, has brought us very close to this undesirable situation.

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