The military’s most-preferred form of a probe ~ a Court of Inquiry (COI) ~ may not feature all the legal trappings and complexities of a “case” in a civilian judicial action, but the concept of sub judice does come into play. Even when stressed that a COI does not imply culpability, or serves as an indictment but only aims at establishing facts, the military declines to comment on issues under such probes lest it impact the inquiry. Fair enough.
Hence it does raise serious issues of “process” when an officer whose action is still being examined by a COI is awarded a Commendation Card by the Chief of the Army Staff. The COI cannot help being “influenced” by the recognition, so it could be demanded that the now-pointless probe be immediately wound up: after all the Chief is senior to those conducting it, and in the military system no “junior” dare disagree with the Chief. As defence minister, Mr Arun Jaitely would do well to bring his legal expertise to bear and opine on the propriety of the Chief’s move: it has implications for all COIs ~ and in matters involving non-military persons there will be an erosion of confidence in the COI practice. At the best of times the “uniforms” are known to protect their own.
So much for “due process”. The specific case of Major Leetul Gogoi, “credited” with lashing a civilian to an Army jeep on 9 April to serve as a human shield against stone-pelters in Budgam in Kashmir has, justifiably, triggered sharply conflicting views. Critics insist it was indicative of the high-handed manner in which the Army has consistently trampled upon human rights, abused the provisions of the much-condemned Armed Forces Special Powers Act (some aspects of which are now being reviewed by the Supreme Court), and fuels the charge that in Kashmir the Army is part of the problem rather than part of the solution.
The Army takes a diametrically opposite view, and lauds the Major for averting the possibility of bloodshed. To counter public condemnation, the Army “activated” its vocal retired personnel (among them the chief minister of Punjab, does the Congress party endorse his line?) to project the officer as a hero. After commending the officer, the Chief now has to ensure he is protected for several years to come ~ Major Gogoi has been rendered a “trophy target.”
The commendation is being projected as a snub to all human rights activists, as well as the logical follow-up to Gen. Bipin Rawat’s controversial “caution” in February. It reaffirms the government’s “military” approach to Kashmir ~ forgetting that Hitler’s army could not crush the Resistance in France, and despite several battleground victories the Israeli Defence Force remains rattled by the intifada.