A history of transgressions

After being heralded for the “human shield” incident, Major Gogoi’s latest transgressions need to be brought to book by the Army.

ByLt Gen H S Panag
A history of transgressions
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“The image of an alleged ‘stone pelter’ tied in front of a vehicle as a ‘human shield’, will for ever haunt the Indian Army and the nation” — tweet by Lt Gen H. S. Panag (R), April 15 2017

On May 25, 2018, when the Army Chief General Bipin Rawat was visiting the Army Goodwill School in Pahalgam, he made an unusual statement when answering a question from a journalist. Speaking in Hindi, he said, “Dekhiye, Hindustan Army ka koi bhi ohdedar ho, kissi bhi ohde par ho, agar woh koi galat karwahi karta hai, aur hamare nazar mein yeh aata hai ki kissi ne bhi koi galat karwahi kari hai, toh usske khilaf sakhat se sakhat karwahi ki jaegi. Agar Major Gogoi ne koi galat karwahi kari hai, toh main aapko yaqeen ke sath keh sakta hoon, ki jaldi se jaldi ussko saza di jaegi, aur saza aissi doonga main, ki woh ek udharan ban kar reh jaega. (If anyone in the Indian Army, at any rank, does any wrong, and it comes to our notice, then strict action will be taken against him. If Major Gogoi has done anything wrong, I assure you that he will be punished and I will give such a punishment that it will become an example.).”

On Wednesday, May 23, Srinagar police held an Army officer, his driver, and a Kashmiri girl from Hotel Grand Mamta, Dalgate, when the hotel staff reported to the police that the officer and his driver were creating a ruckus in the hotel lobby. The Army officer, posing as a businessman from Assam, had booked a room for 24 hours on the morning of May 23 and arrived at the hotel at approximately 10.30 am, accompanied by a Kashmiri girl, to check into the hotel. He showed his driving licence as proof of identity and gave his address as ***, Tinsukia, Assam.

When the girl was asked to identify herself, the Army officer produced her Aadhaar card. The hotel staff, quoting their rules, refused entry to the Kashmiri girl. This led to an altercation in which the driver of the officer also joined in. A scuffle ensued, and both the Army officer and his driver were roughed up by the hotel staff and some taxi drivers. The police were called and the Army officer, the Kashmiri girl, and the officer’s driver were taken to Khanyar police station for questioning.

It soon emerged that the Army officer was none other than Major Leetul Gogoi, a virtual national hero, who (as per the popular narrative and his own version) had dramatically rescued a party of election officials held hostage by a 500-900 (as per various versions) strong mob, by tying a Kashmiri shawl maker as a “human shield” on his vehicle. His driver was a Territorial Army (TA) soldier, Sameer Ahmed Malla, attached to 53 Rashtriya Rifles (Major Gogoi’s unit). The Kashmiri girl in question was a major (born October 13, 1998, as per her school records) from a poor family belonging to village Checki Kawoosa.

Within hours, as is the norm in Jammu and Kashmir (J&K), two distinct narratives emerged. The first narrative, based on Major Gogoi’s statement and the story spun by his “nationalist” supporters, stated that the officer was on an “intelligence operation” to meet a “source”: the Kashmiri girl. When—for the obvious reasons of using his actual name, not being an intelligence officer, and the nature of the meeting place—the “meeting a source” theory was debunked, his “nationalist” supporters, including very vocal, veteran officers on TV media, settled the issue by saying that there was no crime in two consenting adults spending time together in a hotel.

The contra-narrative, or the version of the local people, focused on a known rogue Major using his position to force or persuade a poor minor girl for his sexual gratification. It soon emerged that the girl was not a minor. However, the rest of the narrative remained the same. It was alleged that the officer, wearing civilian clothes, had earlier visited the girl’s house with his driver at odd times and that the driver, a rogue TA soldier, was arranging local women for other officers too.

Over the next three days, the following facts became clear. Major Gogoi had booked the room without using his rank and posing as a businessman from Assam. He did try to check in along with the Kashmiri girl. He told the police that he had come to meet a “source”. He had twice earlier visited the girl’s house in civilian clothes. She was a 10th standard graduate from a poor family, and was not a minor. She stated in front of a sub-divisional magistrate, that she had accompanied Gogoi of her own free will, and had earlier gone on outings with him too. She had befriended Gogoi on Facebook where he was using a pseudonym, Ubaid Arman. In due course, he revealed his identity to her and they became friends. Both, the Army and the J&K police ordered an inquiry.

So what do we make of it? A legendary hero meeting a “source” to get information on terrorists. Even if this is dubious, there is nothing wrong with two consenting adults spending time together. Of course, there were risks involved: a “honey trap”; locals discovering his identity and lynching him; terrorists laying an ambush. But given the Rambo reputation of Major Gogoi, these were not risks for him. Why then are “anti-nationals” hounding him? Of all people, why was the Army Chief—who one year and 22 days before the incident, on May 1, 2017, had decorated him for his “gallantry” in rescuing election officials by using a “human shield” now talking of giving him “exemplary” punishment?

The answer lies in the military ethos, rules, regulations and law. Major Gogoi has violated virtually all these. He is guilty of a number of offences under the Army Act.

It is not clear whether Gogoi had taken leave of absence from his unit. Indications so far are that he had not. This makes him liable to be charged with “absence without leave” under Section 39(a) which carries a maximum punishment of three years’ rigorous imprisonment.

In J&K, it is forbidden for officers and soldiers to visit civilian houses/areas except when on duty. This is specifically spelt out in unit orders. Major Gogoi has clearly violated this order. He is liable to be charged under Section 63—“violation of good order and discipline”—both for visiting the Kashmiri girl’s house on two occasions and for going to the hotel at Dalgate, Srinagar, with her. Section 63 carries a maximum punishment of seven years’ rigorous imprisonment.

Major Gogoi can also be charged under Section 45 for “unbecoming conduct”, which carries the maximum punishment of being cashiered (dishonourable dismissal) from service. Of course, for all these charges, if proven, any lesser punishment as prescribed under the Act can also be awarded.

These charges may seem vague and innocuous to a civilian mind, but are taken very seriously in the Army. Officers and soldiers can be “honey trapped” for espionage or set up to be killed by terrorists. Establishing relationships with women in conflict zones, especially using authority-driven coercion or monetary enticement, carries serious ramifications for the ethos and discipline of the Army. Military rules, regulations and law bridge the gap between the idealistic and absolute requirements of the Army and the omnipresent individual human failings, as no human being is perfect.

As highlighted by me in my columns dated May 2, 2017, and May 29, 2017, the Army had not only condoned all violations of rules, regulations and law done by Major Gogoi on April 9, 2017, but the Chief had also decorated him even before the finalisation of the Court of Inquiry. By using a poor Kashmiri as a “human shield”, irrespective of the alleged justification, Major Gogoi had violated the Army’s Standard Operating Procedures, Rules of Engagement, COAS Commandments, Supreme Court Guidelines for application of the AFSPA, Article 21 of the Constitution, and committed offences under the Army Act Sections 63 and 69 read in conjunction with the Indian Penal Code. 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. To date, not a shred of evidence has come forth to support the version of Major Gogoi that was glibly accepted by the Army, the government, and by the “neo-nationalists”.

What has changed in the last one year? It is apparent that the Chief is a worried man today. He may have succumbed to “political prodding” and got carried away by the “mood of the nation” last year when he condoned the offences committed by Major Gogoi and decorated him. But today, he simply cannot ignore the Frankensteinian ramifications of his own actions. Major Gogoi serves as a case in point, and should be a screaming example for the Army not to deviate from its ethos, rules, regulations and the law.

The Chief also needs to have a chat with his Judge Advocate General. Under the Army Act, the Chief is not only the confirming authority for the findings arrived at and sentences awarded by court-martials, but is also an appellate authority in most cases. His statement before finalisation of investigation or trial can jeopardise the carriage of military justice. His action of awarding the COAS commendation card and his comments upon the findings and opinion of the Court of Inquiry with respect to Major Gogoi, while it was still in progress, may lead to the reopening of the case in civil courts years later.

Similarly, his statement about personally awarding an exemplary punishment to Major Gogoi may eventually lead to his exoneration in the Armed Forces Tribunal or the Supreme Court due to premeditated nature of the legal proceedings, bias and conflict of interest. More so, when the Chief himself may be the confirming and appellate authority at a future date.

Between these two “out of the ordinary” actions of Major Gogoi lies the Chief’s problem. Seen in isolation and if the same person was not involved, both incidents were aberrations keeping in view the exemplary and model conduct of the Indian Army during six decades of counter-insurgency campaigns. At the very onset, a suo moto, clear-cut statement in crisp military language could have been given saying that the conduct of the individual(s) is not as per military ethos, rules, regulations and law, and that necessary action as per law will be taken after due investigations. This done, the investigations and inquiry as per law should have been carried out.

If this route was followed, there was ample flexibility available for follow-up action on merits of the case. It could have been a rap on the knuckles or a reprimand if it was a case of enthusiastic action by a young officer in the heat of the moment. Or a severe punishment could have been awarded for a stand-alone rogue action. The real worry of the Chief should be the extent of damage that has been done to the ethos and culture of the Army and the psyche of the officer corps by the very popular “Major Gogoi principle”. In my view, a lot!

The image of the “human shield” has come to haunt the Army and the nation, just as I had predicted last year. Ironically, it came in the form of Major Leetul Gogoi, the “national hero” created by the “neo-nationalists ”, unfortunately, abetted by the Army.

My last word is from the wretched Farouq Ahmed Dar, the unfortunate “human shield”. “…today was the day of divine judgement. The Army rewarded him (Major Gogoi) for tying me to the jeep and god shamed him in front of the whole world.”


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