Major Gogoi and the Budgam Woman: On abuse of power and the impossibility of consent

Facts of the matter

[dropcap]M[/dropcap]ajor LeetulGogoi, an officer of the Indian Army posted in Budgam, booked a hotel room for overnight-stay two online in the Gran MamtaHotel near Srinagar's Dal Lake. Free Press Kashmir has a copy of the booking: it clearly says that "LeetulGogoi" booked a room for one night – the night of May 23, 2018 – for himself and one other guest. The booking details show that he added the information: "I will be travelling for business and will be using a business credit card." He has also given his room preference: "Deluxe Room with Airport Pickup: Upper Storey", and provided the information that he would arrive at 11 am.When Major Gogoi arrived at the hotel to claim the room, he had a young Kashmiri teenager with him.

The CCTV footage from the hotel also reportedly show him arriving at the hotel lobby.Kashmir Walla reportedly spoke to Ajaz Ahmad, managing director of Hotel Grand Mamta, who said, "When he arrived, we asked for his identity cards; he was carrying a driving licence from Assam, and the Kashmiri girl, who was along with him, showed us an Aadhaar card from Budgam, on which the year of birth was 2001." The hotel staff reportedly refused him a room on the grounds thathe could not explain why he was planning to share a room with a teenage Kashmiri girl. "Where did you get her from," the hotel staff asked. Major Gogoi then, along with his "driver" Sameer, kicked up a row, screaming and shouting to demand that the hotel let him have the room.

The hotel staff then called the cops, who took Major Gogoi, Sameer and the girl to the police station. Reportedly, Major Gogoi was briefly detained by the police. The girl was also detained by the police and subsequently released.SP Pani, a senior officer of the Jammu and Kashmir Police, has confirmed that the police is probing the matter.

Moral policing by hotel? Or,abuse of power by the Major?

Since then, social media has seen a variety of defences for Major Gogoi's conduct. Of these, the most prominent (and these include both right-wing and liberal voices) suggested that the hotel staff were indulging in moral policing, and who Major Gogoi shared his room with was no one's business as long as the girl was 18 years or more of age. Columnist Tavleen Singh tweeted: "Shocking that Major LeetulGogoi and his alleged girlfriend were questioned by the Srinagar police for trying to meet in a hotel. Two adults have every right to meet who they want. Kashmir is not yet and will never be an Islamic State."

Now, the hotel staff claim the girl's Aadhaar card showed her year of birth as 2001. That would mean the girl is 17 – a minor – and thus ruling out a consensual sexual encounter between two adults. But, let us assume for now that the girl is indeed 18 or even 19. Would that make this situation a consensual one? Was the hotel staff indulging in "Islamist" moral policing? Bear with me while I break down such arguments, and explain why such conduct can never be consensual and is a gross abuse of power.

First: how did Major Gogoi, an Army officer posted in Budgam, meet the girl? The girl's mother, speaking to local reporters before going into hiding, said that an Army man she later realised was Major Gogoi, barged into their Budgam home (a shabby tin-shed) one night: "I was terrified when Army officer barged into our house during night hours for the first time and started enquiring about our well-being, I soon fainted." After that first night, she said, Major Gogoi along with his aide Sameer Malla,would regularly visit the home at night: "The mere presence of Gogoi sent a chill down my spine. Sameer used to converse with my daughter and I became doubtful." She alleged: "It was Sameer who brought Major into my house and started luring my daughter."

Was it acceptable conduct for Major Gogoi to repeatedly visit a local home in the area where he is posted, at night, in civilian dress? As a serving officer of the Indian Army, can such a night visit ever be a casual, social visit to "enquire after well-being"? It cannot, because the Army is in a position of power over local civilians. It is a source of terror for them. Such night visits by armed forces in conflict areas (Kashmir, the North East, Bastar, forest areas of Odisha and Jharkhand) are ominous for local people, who know it can be a harbinger of abductions, rapes and fake encounters.They fear to refuse anything an Army officer asks, because they know he has the power of life and death over them. This is why the norms of military conduct frown on sexual advances being made by Army officers to local civilian women — because the relationship between them is grossly unequal.

[Let me cite just two examples here, though there are countless others. In 2004, a night-visit by Assam Rifles personnel in Assam, ended up with the "merciless torture", gang-rape and murder of ThangjamManorama. In 2016, CRPF and State Police paid a visit to a home in Kadenar, Bastar – they took away Manoj Hapka and his wife Pandi Tanti. The couple's dead bodies were displayed the next day as that of "Maoists" who had been killed in an "encounter." How come, in an alleged fierce encounter of the forces with 30-35 Maoists, the two killed happen to be husband and wife? The police and CRPF had no explanation for this strange coincidence.]

In this particular case, the inequality is even more starkly apparent. The girl and her family are painfully poor: they live in a tin-shed, since their house washed away in floods. The girl (even if she isn't a minor as the hotel staff and her mother assert), is a mere teenager, and about half the age of Major Gogoi. Is a teenage girl who is economically, age-wise, and by virtue of being a Kashmiri civilian girl in an area where the Army wields huge power, so much weaker than Major Gogoi, really in a position to give/deny "consent" to him? Is this not an obvious case of his exploiting the fear and desperate poverty of a family and a girl over whom he wields power?

Law and rules governing Army officers' conduct

The Army Act 1950clearly states that an Army officer is liable to be punished for "unbecoming conduct" (Section 45) or "disgraceful conduct of a cruel, indecent or unnatural kind" (Section 46). The Notes explaining these sections make it clear that they cover instances where "the behaviour complained of is of asocial  character,  i.e.,  it  offends  the  accepted  rules  of  social  behaviour  and thus  is  unbecoming  the  character  from  a  moral  view  point", and also those where "conduct is prejudicial both to good order and military discipline".

Can Major Gogoi's repeated night visits in civil dress,along with his aide, to the girl's tin-shed home, be anything but offences under this Act? Can his attempt to check into a hotel room for the night with a Kashmiri teenage girl be anything but a gross disciplinary lapse on part of a serving officer? The Army Act applies to a serving officer whether he is "on" or "off" duty — the Supreme Court judgement "State Of Jammu & Kashmir vs Lakhwinder Kumar &Ors on 25 April, 2013" makes that much very clear. It clearly states: "The notification (by the Central Government in the Official Gazette) does not make any reference to the nature of duty, but lays emphasis at the place where the members of the Force are serving, to come within the definition of 'active duty'". So, even if an accused officer is in civil dress, he will be considered to be on "active duty" as long as he is "at the place" where he is serving.

UN definitions of sexual exploitation and sexual abuse

International guidelines for the conduct of peacekeeping and other military forces and aid workers deployed in conflict areas are also helpful in understanding why Major Gogoi's behaviour is a gross abuse of power that amounts to sexual exploitation no matter how you try to spin it. Taking into consideration the UN General Assembly resolution 57/306 of 15 April 2003, the UN Security General issued a Bulletin on "Special measures for protection from sexual exploitation and sexual abuse".

This Bulletin defines "sexual exploitation" as"any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another", and "sexual abuse" as "the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions".

Take another look at Major Gogoi's conduct (and the excuses being made for it) in light of these UN definitionsof sexual exploitation/abuse. Whether he "actually" had sex with the girl or merely threatened/intended to do so; whether she is a minor or not; whether she is a prostitute (i.e., paid by Major Gogoi for sex) or not; whether he used force/threats/inducements or not — all are rendered irrelevant by the inexorable fact of the "unequal conditions" of Kashmir, which make equality between a civilian teenage girl (especially from a poor family) and a serving Army officer impossible. As a "high court lawyer who is an expert in military law" quoted in this article says: "Irrespective of whether the girl was a consenting adult or not, action can be taken."

[Reading the girl's mother's account of Major Gogoi's visits reminded me forcefully of accounts I've heard of how the feudal landlords of central Bihar used to send for girls/women from Dalit labourers' homes in the 1980s. Dalit women who worked in their fields were expected to make themselves sexually available. Bela Bhatia has written about this entrenched culture of feudal sexual entitlement here, including practices like the dolipratha (a practice "forbidding young brides leaving for their sasural [in-laws home] from sitting in the doli [palanquin] from the house of the parents, as is required by custom"). The consequences of denying such sexual summons were terrifying — the landlords could literally kill the entire Dalit family, with complete impunity. Naturally, then, many women did go without the use of force; but that did not mean they "consented". Consent was ruled out by the sheer inequality between the women and the landlords.]

Was the girl a 'source'?

If some claim Major Gogoi was "off duty" and who he sleeps with in his private time is none of our business, others claim the opposite – thathe was in fact doing his duty and meeting the girl/woman as a "source" or "spy". If the girl is a minor, of course, it is a violation of her rights as a child to use her as a spy. Even if she is above 18, would it really be acceptable for an Army officer to meet a teenage girl "source" in a hotel room he has booked for the night? Why not meet in a place where she would be safe and not vulnerable to any potential abuse?

The expert on military law,quoted in the article cited above, makes another important point casting doubt on the "source" theory: "Normal officers don't meet sources in such a fashion. That is the job of specialised intelligence officers. Even if he was meeting a source, it is critical to know whether his superiors were aware of his actions." According to this military expert, under Section 63 of the Army Act, officers are prohibited from civilian areas in sensitive zones unless on duty: "The important question to ask is – [Major Gogoi] is posted in Budgam, what was he doing in Dal Lake? In areas such as Kashmir, officers aren't allowed to visit civilian zones unless specifically ordered." Budgam is Major Gogoi's command area – the question, therefore, is threefold: whether Major Gogoihad the permission of his superiors to leave that jurisdiction,and why he entered the civilian areas of Srinagar city which is out of bounds for army. This objection would also apply to Major Gogoi'snight visits to a home in a civilian area in Budgam, as alleged by the girl's mother, rendering them a serious breach of "good order and military discipline", which merits a punishment less than or up to seven years of imprisonment.

Rewarding contempt for law

When Major Leetul Gogoi tied a civilian — a weaver, Farooq Ahmad Dar, who had just cast his vote —to a jeep and paraded him for five hours, it was a textbook case of torture and "disgraceful conduct of a cruel kind" as specified under the Army Act. Yet, he not only escaped a court martial and punishment by the Army, as well as prosecution or punishment by the police and judiciary, he was actually rewarded for his act. The Chief of Army Staff, General BipinRawat, political leaders of the government and members of the ruling party, even Opposition leaders such as Punjab CM Captain Amrinder, BJP spokespersons like TajinderBagga(who made and sold T-shirts glorifying the jeep incident), and of course screaming anchors on Indian TV hailed Major Gogoi as a hero.

What message did this give to Major Gogoi and others like him? It told him and other men in uniform that Army officers are above the law. That Army officers did, in fact, have a right to do whatever they wished with the bodies of Kashmiri civilians. Kashmiri civilians are a captive population, prisoners of war, always already insurgents in an occupied land, always already guilty of "terrorism". Just last month, before the May 14 massacre in Gaza, the Israeli defence minister declared:"There are no innocents in Gaza". Replace "Gaza" with "Kashmir" — and you have the attitude of the Indian State and Army establishment writ large. Is it any surprise then that the officer who tied a man to a jeep and paraded him, has now brazenly taken a Budgam teenage girl to a Srinagar hotel for a night?

Killing our humanity

The"no one is innocent in Kashmir" attitude (which justifies all atrocities against Kashmiris) has poisoned the minds of Indian citizens too. When protesters in Thoothukudi who allegedly, after their peaceful protests were neglected for 100 days, resorted to stone-pelting and arson, were massacred by policemen in civil dress, using assault rifles, many Indians (barring some prominent exceptions of course) reacted with outrage and shock. Most Indians no longer react with outrage and shock at similar scenes in Kashmir daily – their response has been numbed by the propaganda that "normalises" such violence by simultaneously projecting the Kashmiris as paradoxically both "ours" and "Other" – i.e., as willy-nilly "Indian", but undeserving even of the rights Indian citizens can claim because they are "anti-national". I have witnessed this insensitivity sharpen in just the past two years – a result of the propaganda wars demonising Kashmiris on Indian media.

I address my last point to those who identify as Indians, who feel for India as a country – since I count myself among them. What does it do to us as Indians, if we start to think it is okay for Indian Army officers to tie Kashmiri civilians to jeeps, or take Kashmiri teenage girls to hotel rooms for a night together? Would we be okay if this was done to people in Thoothukudi? What about in Delhi during the December 2012 protests where, too, the police alleged stone-pelting by young protesters? Would it be okay for an Army Officer (or a prominent politician or a police officer) to visit our homes randomly and nights and then take a 17-18 year-old girl from our homes to a hotel room in another town? If you were to see a police truck in Thoothukudi or Delhi, moving slowly, were to veer deliberately left and mow down an 18-year-old boy pelting stones in protest, and then drive on without stopping, (as it did in Kashmir) would you be okay with casually, callously accepting that it is an "accident" or saying "serves the stone-pelter right"?

In your mind, walk in the shoes of Kashmiris for a few minutes, and ask yourself honestly if you would really be okay with thisif you were treated the way they are? And if not, why do we seek excuses for such conduct when it comes to armed forces and police in Kashmir?When we treat others as less than human, we lose our own humanity. We are losing our humanity in the name of the warped and poisonous version ofnationalism which requires us to dehumanise Kashmiris. Many, perhaps most in Kashmir have given up on any expectation of humanity from India and Indians. But as an Indian, I cannot but fight for our humanity, believe in and hope for the resilience and reassertion of our humanity.

In the US, and in Israel too, there is a growing body of Jewish people (including a large number of young women and men who risk jail by declaring themselves conscientious objectors and refusing to serve in the Israeli military) vocal in their solidarity with Palestine and against the Israeli regime and its atrocities. In India, such solidarity with Kashmir is, as yet, rare, faltering, half-hearted, conditional and sporadic. But I will continue to hope and work for it.

[Editor's note: This article was written in May 2018 and has been published on June 11, 2018.]