The incident of Major Gogoi tying a 24 year old Kashmiri Muslim, Farooq Ahmed Dar, a weaver from a village in Budgam, Kashmir to the front of army jeep and parading him around with the stated objective of ensuring that stone pelters would not be able to harm the personnel in the jeep – government servants, armymen and policemen – while they were on their way to safety could not have escaped the notice of the President of India’s office. This has sullied the image of the country and the Indian Army – even more than the humiliating defeat suffered at the hands of the Chinese Army in the Indo-China conflict of 1962.
As if waiting for a cue several Ministers in the Union Cabinet came out openly in support of Major Gogoi’s criminal and inhuman act; the Ministers included Union Defence Minister, Union Home Minister, and Union Minister of Law & Justice. The Indian Army Chief, General BipinRawat backed the use of human shield in Kashmir; the Army exonerated Major Gogoi from any wrong doing two days after the latter was honoured with a Chief of Army Staff (COAS) Commendation Card. The Attorney General of India promised that he would defend Major Gogoi if a situation arose; in fact the Attorney General saluted the Major.
Thus far the President of India has maintained a deathly silence on the issue. A response from his office is in order; after all according to Article 53 in Part V of the Constitution of India:
“… the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.”
Besides the President appoints all the Chiefs of respective Forces including the Army Chief – who openly supported the concept of human shield.
Besides the oath or affirmation by the President includes:
“…and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.”
Mr. President, may we remind you that the Constitution of India and its Preamble states:
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
WE, THE PEOPLE OF INDIA seek JUSTICE for one of our citizen named Farooq Ahmed Dar.
Sir, as the Supreme Commander of Defence Forces your office will have to take a stance – belatedly though, and you still have a few weeks time before you demit office – on the issue of human shield. The Defence Forces look upon you for guidance and support; you are intended to be a conscience-keeper and thus have the moral responsibility to offer sage advice. Besides, you have the advantage of several decades of public life to your credit.
Under ordinary circumstances you could have used your power under Article 143 of the Constitution of India and sent a Presidential reference to Supreme Court on the crucial issue of use of human shield by the Indian Army. Article 143 of the Constitution of India states:
“143. Power of President to consult Supreme Court (1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon
(2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.”
But Sir, we are living in troubled times; such an exercise would not be possible now because the Union Cabinet would not allow a such a reference to be made. In fact the support by several Union Ministers as also by the Attorney General has preempted your move to get a Presidential reference through. But your hands are not tied. You still could resign on the issue; or, you could issue a one line statement against the use of human shield by the Indian Army.
Sir, the nation is at the cross-roads of history. You would recall that another President of India, Fakruddin Ali Ahmed, went down in infamy for his single omission viz. blindly signing on the Emergency proclamation ordinance without questions. On behalf of ‘We the people of India’ it is our duty to remind you that during the Internal Emergency period (1975-77) you had been indicted by Shah Commission. (Quote):
“Shri Pranab Mukherjee has violated established administrative conventions and procedures and misused his position in the appointment (of the Chairman of the State Bank of India).”
“Mr. PranabKumar Mukherjee, the then Minister of Revenue and Banking has misused his position and abused his authority in ordering the detention of Smt. Gayatri Devi and Col.Bhawani Singh on wholly insufficient grounds. It is aclear case of subversion of lawful processesand of administrative procedures.”
In your book “The Dramatic Decade:the Indira Gandhi Years” you wrote:
“In fact, Indira Gandhi told me subsequently that she was not even aware of the Constitutional Provisions allowing the declaration of a state of Emergency on grounds of internal disturbance.”
Well Sir, we have herein provided you for your ready reference the Constitutional provisions you may need for taking a stance on the issue of human shield.
Sir, the present moment beckons you. If you do not take this small but significant step this time around, the people of India will never forgive you. Now even the plea of being a junior in the establishment is not available to you; as you are the first citizen of India. (You had used the plea of being a junior Minister in the Cabinet of Indira Gandhi during the emergency period.) On Major Gogoi’s issue you should either resign or at least make a one line public statement showing your disapproval of use of human shield by the Indian Army. This step will also help in washing your political sins of 1975-77 period.
Dr. P.S. Sahni is a member of PIL Watch Group.Email: firstname.lastname@example.org