Debate | ‘Human Shield’ Row: Army Acted in Everyone’s Interest
Going by legal maxims, the army’s use of a human shield would be considered to be in everyone’s best interest.
I have been pondering over this burning issue that has stirred interest in many of us.
This is a case where it is very difficult to be neutral. Either one supports the young Major's actions or one castigates him for taking law into his own hands, subjecting an ‘innocent bystander’ to danger and aggravating the already vitiated atmosphere of resentment.
To my mind, the young man acted in the best interests of the men he was rescuing, the troops he was commanding and also in the best interests of the stone-pelters. I, unabashedly, support his action and commend him for his ‘out-of-box’ thinking that led to not even one hair being harmed on anyone’s body.
If at all any damage was caused, it was to the dignity of the young lad, who was tied up, which I believe he can live with.
So I went online looking for legal maxims, which obviously have come into popular use based on thousands of judgements, over the years in various courts across the world and which clearly support Major Gogoi's actions.
Acted in Good Faith
The first maxim that comes to mind is that he acted in good faith (bona fide) and in self-defence.
Others include the following:
Actus non facit reum nisi mens sit rea – The act does not make one guilty unless there be a criminal intent. (So was there any criminal intent on his part? The answer is an obvious “No”.)
An Instance of Extreme Necessity
Acta exteriora iudicant interiora secreta – Outward acts indicate the inward intent. (A corollary to the earlier one.)
Aequitas nunquam contravenit legem – Equity never contradicts the law. (So if his action was fair, it does not contradict any law.)
In casu extremae necessitatis omnia sunt communia – In a case of extreme necessity everything is common. (This was certainly a case of extreme necessity.)
Death or Injury to Many Avoided by Major’s Actions
Intentio inservire debet legibus, non leges intentioni – Intention ought to be subservient to the laws, not the laws to the intention. (Again it buttresses the first couple of points that he acted in self-defence and his intentions were straightforward and clear.)
Qui non prohibet quod prohibere potest assentire videtur – He who does not prohibit when he is able to prohibit, is in fault. (This is perhaps the most important of them all. His action certainly prohibited what could have been a situation where people would have been injured seriously or even killed. In fact, had he not done so, he was at fault.)
Quod necessitas cogit, defendit – What necessity forces, it justifies. (Here too, the situation justified his action.)
Lex citius tolerare vult privatum damnum quam publicum malum – The law would rather tolerate a private injury than a public evil. (So a public evil i.e., death or injury to many was avoided by his actions.)
Principle of Fair Act
Jus Aequum vs Jus Strictum – Jus aequum and jus strictum are polar opposites in the principles of legal jurisprudence as are teleology and deontology in moral philosophy.
The principle of jus strictum calls for strict and literal interpretation of legal rules. From a historical perspective, this was the basis of international law. However, over the centuries, treaty practice has allowed interpretation and application be done in a reasonable and equitable manner, or jus aequum.
The clauses stipulating good faith or equitable treatment have gradually come to be regarded as implicit in international transactions of a consensual character. Thus, today it is true to say that in international treaty law and in that part of international customary law which has its origins in treaties, jus strictum has been largely transformed into jus aequum. (So even in international law, the principle of a fair act overrides the exactitude of law. Major Gogoi by his so-called fair act although perhaps illegal, saved many lives. Had he resorted to the legal act of firing upon the protesters, there would certainly have been casualties, dead or wounded.)
(With the recent instance of an army personnel using a Budgam resident as a human shield in J&K, The Quint debates whether the action was justified given the volatile situation prevalent in the Valley. This is the view, you can read the counterview by Chandan Nandy here.)
(Lt General Gautam Moorthy (Retd) is presently a member of the Armed Forces Tribunal (Kolkata Bench) and the views expressed are personal.)
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