The dilemma of human shield in Kashmir


There have been a number of articles, disapproving of Major Gogoi’s use of Farooq Ahmed Dar as a human shield to stop the stone pelters from endangering lives of polling officials at a polling booth in Srinagar. However, the bigger stir in the air is Partha Chatterjee’s article in “Wire” likening the Army Chief’s approbation of Gogoi to Brigadier General Dyer’s defence of Jallianwala Bagh massacre in 1919. This has understandably drawn severe flak from all quarters as being extremely insensitive and odious in terms of comparison. To be fair to General Rawat, the Army has been fighting a high intensity conflict in Kashmir, with all odds stacked against it. The outcry of the human rights groups, therefore, often crosses contours of humanism.

The human shield issue needs sober reflection on the role expected out of the Army in such scenario, to what extent such unorthodox methods would carry muster on the altar of logic and constitutional law in the backdrop of international conventions. According to the Army regulations and Standard Operating Procedure, it shoots for effect when called in, rather than trying to save lives through measures like firing over the heads of a crowd. The role of the Army is thus unlike that of the police who try to cause minimum collateral damage. Major Gogoi might well have saved lives by opting of a human shield. But he has incalculably damaged the reputation of the army by acting as a police force. The Army Chief would need to introspect what constitutes a greater damage: a blow to institutional credibility and dilution of its operational culture or the tragic consequence of dispensing a mob with fire. It would indeed be a matter of debate if the Army Chief would use the same logic if a military officer who has cornered militant holds a gun to the head of his little daughter and order the militant’s wife to bring her husband out to surrender? This is indeed mortifying choice; but not farfetched from going by what General Rawat said in a press conference “It’s proxy war and proxy war is a dirty way. It is played in a dirty way. This is where innovation comes in. You fight a dirty war with innovation”.

As is well known, the Indian Army has been dealing with insurgencies in North Eastern States for several decades without sacrificing its fundamental character as a war fighting army, that goes by the principles of honour, firmness and professional dispassion. It has also followed the same principle in Kashmir; successfully by creating a sanitized security environment in which New Delhi can craft its political options. The recent political alliance between Mehbooba Mufti and NDA is a manifestation of hard politics.

Be that as it may, the real debate is on the role of Army to adapt unorthodox methods like using a human shield, which is against the foundational “Regulations For The Army” as already alluded to. Lt. General D.S. Hooda, a thoughtful Army Commander of recent times, has aptly observed “There will be political influence. It is in the nature of democracies and pressure from public opinion. But the military ethics must stand on its principles and ethics”. That’s indeed the clincher, how to ensure institutional independence and professional judgement of the Army. It may be recalled that Field Marshal Manekshaw did not acquisce to the dictat of Mrs. Gandhi when she prodded him to start the war against Pakistan immediately. He asked her to wait till December till the Army was fully ready to launch a war. The successful Bangladesh operation (1971) is a testimony to his foresight and the fact how the Army could insulate itself against political pressure and expediency.

In this age of social media, the sight of a hapless, trussed up Farooq Dar in front of a jeep, who was let off after five hours, has certainly dented the image of the Army. The Army Chief also appears to have poured bucketful of salt on the raw psyche of the Kashmiri people and smirked at those who are shocked by the incident. Any criticism, especially in the hyper nationalist times that we live in, would be deemed antinational. Prof. Partha Chatterjee is a well known historian of subaltern studies and famous for his book “Community, Gender, and Violence- Subaltern Studies XI” (2001) where he dealt with the issue of community and violence in the context of peasant uprising. The turmoil in Kashmir is a different kettle of fish from the peasant movement that he wrote about. It is a separatist movement where the rest of India is viewed with extreme hostility and suspicion. For him to compare General Rawat with Brigadier General Dyer is most distasteful and patently a historical.

There is another aspect to the human shield that needs to be cogitated. The Geneva Convention (1949) considers use of such tactic as a war crime. But several countries are notorious for using this tactic after the World War II. The Israeli defence forces used human shield procedure on 1200 occasions during Second Intifada (2000-2005). The Israeli Supreme Court issued a temporary injunction against such a practice. The Palestinians also paid back the compliment against the Israelis. This is also clearly against Right to Life as mandated in Article 21 of our Constitution Article 20 also proscribes against “self incrimination”. In the famous Selvi vs State of Karnataka (2010) case, the Supreme Court observed that tests such as narco analysis, polygraph examination and the BEAP for furthering investigation purposes violates “right against self incrimination”. No one can be coerced to undergo a test, however, edifying the objective may be. In this backdrop forcible use of an innocent Kashmiri weaver, who had gone to exercise his voting right, to act as a human shield against stone palters clearly defies the principles etched in Geneva Convention, in which India is a signatory. It also militates against the sound professional principles on which Army is expected to discharge its responsibility as the last lamppost to protect our sovereignty.

The author teaches Constitutional law

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Views expressed are personal.

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