Security

The Army's Law Can Be Harsh But Going Soft Can Make Things Worse

Major Leetul Gogoi was commended when he broke the law by taking a Kashmiri civilian hostage. Now, the army is holding a second court of inquiry for another alleged act of indiscipline or worse.

Major Leetul Gogoi’s latest escapade is nowhere near as serious as his first claim to infamy. He was briefly detained after an altercation at a Srinagar hotel over the establishment’s refusal to allow him into his room with a young Kashmiri woman. The woman told a magistrate later that she accompanied Gogoi of her own free will. At this level, the incident could well be a romantic assignation between two consenting adults. But given Gogoi’s past, questions remain. In any case, it was most indiscreet – if not dangerous – for him to go to a downtown Srinagar hotel to meet the woman.

The army has set up a court of inquiry into the incident and no doubt the first question the major would have to answer is how he was in Srinagar, where the army has no counter-insurgency role.

There are, perhaps, bigger questions over what kind of a relationship Gogoi had with the girl who is just about 18 years old. She is from a poor family and lives in a village outside Srinagar. Given the way the army looks at these things, there will also be issues about Gogoi’s marital status.

As things unfold, there will be interconnected issues relating to morality and the military as well as the somewhat difficult to grasp issue of “honour”. The reason is that the military is an authoritarian organisation functioning in a democracy. That is why it has its own system of law codified in the Army Act and its counterparts for the air force and the navy.

The Act shows how draconian the military can be when, in its Chapter VI, it lists the offences that are subject to a death sentence – desertion, cooperating with the enemy, surrendering, sleeping or being drunk on duty. Just abetting any of these crimes would fetch you 14 years’ imprisonment.

Video grab of Farooq Ahmed Dar tied to the bonnet of the Major Leetul Gogoi’s jeep as a ‘human shield’.

Being absent without leave or overstaying your leave can get you three years jail. But the more complicated issues come up in section 45 which speaks of “unbecoming conduct” – where an officer who “behaves in a manner unbecoming his position and the character expected of him” shall, if convicted by court martial, if he is an officer, be liable to be cashiered. Section 50 – unnecessary detention of a person or his confinement – can get you two years’ imprisonment.

The army punishment of cashiering is dramatic. It is designed to dishonour a person who has violated the army’s code of honour. The officer is publicly paraded, his epaulettes of rank removed, his shirt untucked, his decorations stripped, and he is frog-marched back to his cell. He also loses his retirement benefits. In the mid-1960s, this writer witnessed one at a regimental centre. It is not clear if this ceremony is still carried out, but the punishment is very much in the books.

There are other sections of the Act which can be quite all-encompassing. Section 46, which gives seven years’ imprisonment for “disgraceful conduct of a cruel, indecent or unnatural kind.” And section 64, which punishes a commanding officer for not acting on a complaint that his men have ill treated civilians, or intentionally insulted the religion and religious feelings of people.

By and large, murder and rape are left to the civil law, except if the personnel in question are in active service. In that case, the issue is handled through a court martial.

The army is particularly sensitive to issues like adultery, especially when it involves a “brother officer’s wife,” though adultery is really a civil law issue. In 2017, for example, a GCM (general court martial) found a brigadier guilty of having an adulterous relationship with a colonel’s wife. He was cashiered from service and sentenced to three years’ imprisonment. In 2000, a lieutenant general commanding the Leh Corps was asked to put in his papers for being involved with another officer’s wife. In 2009, the army dismissed Major General A.K. Lal for molesting a woman officer.

In recent times, the armed forces tribunals have been arguing that the military take a more lenient view of extra-marital affairs given the changed social milieu. However, many disagree with this and say that sexual peccadillos need to be curbed in the military in the interests of good order and discipline. They say that even countries like the United States punish extra-marital activity. Last year, Maj General Wayne Grigsby of the US Army was forced to resign because of an “inappropriate relationship” with a female captain on his staff. Another officer, Lt Gen Ron Lewis, a top adviser to the US defence secretary, was demoted for using his government credit card at strip clubs. In 2015, Brigadier Jeffery Sinclair was demoted two ranks for an affair with a subordinate.

The latest incident involving Major Gogoi may be a good time for the army to revisit the importance of emphasising morality and ethical conduct in operations in Kashmir. In a 1998 lecture to the Defence Services Staff College, the army’s venerated Field Marshal Sam Manekshaw placed moral courage above physical for those moving into higher command positions in the military. He defined moral courage as “the ability to distinguish right from wrong, and having done so, to say so when asked, irrespective of what your superiors might think.”

In 1994, another chief, General B.C. Joshi, issued a set of Ten Commandments for troops involved in counter-insurgency in the North-East and Kashmir. These were printed on cards to be carried by the troops at all times. Among its first three elements were: No rape, no molestation, no torture resulting in death or maiming. It enjoined personnel to respect human rights in general and uphold dharma, defined as “ethical mode of life – the path of righteousness)”. It was during his tenure that the army also tightened up its procedures to punish wrong-doing by its own personnel in Kashmir.

Coffin of the Machil fake encounter being carried by locals. Credit: ANI

Coffin of a Machil fake encounter victim being carried by locals. Credit: ANI Files

In recent years, we have seen questionable stands taken by the army leadership on a number of issues. Perhaps the most serious being the Machil fake encounter where three persons were killed and passed off as militants by rogue army personnel. After attempts to thwart justice, an army court martial had sentenced five people to life imprisonment. Last year, an armed forces tribunal suspended the judgment on dubious grounds.

The armed forces are guided by the Geneva and Hague conventions when they are involved in conflict, whether it is conventional war or counter-insurgency. India has signed the four basic Geneva Conventions, but it has refused to accept Additional Protocols I and II, the second of which deals with internal conflict.

In any case, it has been argued that Article 3, which is common to all the four Conventions to which India is a party, commits combatants and non-combatants who are no longer involved in hostilities, though they may be in the conflict area, to be treated humanely. Further, it prohibits any kind of violence to life and person, cruel treatment, taking of hostages and outrages on personal dignity.

To go back to Gogoi, the problem may have been his lenient treatment by the army authorities in the first place. He had definitely broken domestic law by taking a hostage, and most certainly violated sections 46 and 50 of the Army Act. And he clearly violated Article 3 of the Geneva Conventions, which has the force of domestic law ever since the passage of the Geneva Conventions Act of 1960.

The army’s emphasis on honourable conduct is not some throwback to medieval notions of war, but a practical need to ensure good order and discipline in an institution that wields so much power. Internal conflicts generate a huge amounts of stress for all armies, the Indian army is no different. But it is upto its leadership to re-discover the ethical roots that Manekshaw and Joshi emphasised.

The writer is a Distinguished Fellow, Observer Research Foundation, New Delhi

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