The Department of Military Affairs, Ministry of Defence, exercising its powers under Section 197(2) and Section 6 of the Armed Forces Special Powers Act, denied sanction for the prosecution of 30 Army personnel involved in the killing of six civilians in an ambush, and seven more in retaliatory violence, at Oting village of Nagaland’s Mon district on 4 December 2021. Home Minister Amit Shah and the Army had then stated that it was a case of “mistaken identity” and regretted the incident. However, the police, after a probe by a Special Investigation Team, charged the Army personnel with murder, attempt to murder and several other violations of the Indian Penal Code on 30 May 2022.
The encounter was widely criticised in Nagaland in December 2021, and news of the sanction’s denial was received with dismay. “Is murder not a crime? Are the people of Oting – and Nagas in general – not human? Doesn’t the government of India value the life of our people?” Keapwang Konyak, president of the Oting Students’ Union, had said in anguish. However, with elections over and the North East Democratic Alliance coming into power a second time with BJP as a coalition partner, the political reaction to this incident has become rather subdued — and leaders are citing helplessness arising from Armed Forces Special Powers Act (AFSPA) provisions as a reason.
All eyes are now on the Army, which can initiate action against the accused under military law.
Army must bring closure to the case
The denial of permission for prosecution in civil court was predictable as, since the promulgation of the AFSPA in 1958, the central government has never granted permission as required vide Section 6 of the Act. However, in all such cases, the Army can, and has taken appropriate action in the past, after due investigation by a Court of Inquiry. In this case also, the Army had stated in December 2021 that “the cause of the unfortunate loss of lives is being investigated at the highest level, and appropriate action will be taken as per law.”
However, so far, it has not given any clear statement on the prosecution of the soldiers involved in the encounter under military law.
“When this unfortunate incident took place, a Court of Inquiry was initiated, and that has been finalised. Unfortunately, because of the stay order passed by the Supreme Court, the proceedings have been stayed completely,” Lt Gen RP Kalita told the press on 15 April 2023. Indeed, as long as the case progressed in civil courts, the Army could not proceed with any legal action except a Court of Inquiry. An inexplicable delay of 10 months in finalising the denial of sanction by the DMA/MOD – probably motivated by the elections in Nagaland – further deferred the delivery of justice under military law. The stay granted by the Supreme Court was only related to criminal proceedings in the civil court.
One is not privy to the findings of the Court of Inquiry, but it must certainly have examined whether the action of the soldiers was in good faith or whether any violation took place with respect to the Army’s rules of engagement, do’s and don’ts, standard operating procedures, the Chief of Army Staff’s commandments, and guidelines of the Supreme Court. Necessary action can be initiated on any of these counts under military law. The insurgency in Nagaland has been at a subcritical level since the Nagaland Peace Accord was signed in 2015. In such an environment, the violation of human rights is detrimental to national interests and dents the Army’s image.
Even if one discounts that the action was in bad faith, prima facie, a case can be made out for unprovoked firing without warning or caution and excess use of force. The civilians were returning in a vehicle from a mining site, with no display of weapons and no provocation. Given the characteristics of an ambush site, the vehicle would have been at a slow speed, giving enough time to ascertain its occupants’ identity and hostile intent. The troops’ claim that the vehicle was signalled to stop is full of holes. How was the signal given? There is no report of a barrier being set up, and the troops themselves have not reported hostile fire.
All provisions of Section 4 (a) of the AFSPA that empower any Non Commissioned Officer and above to use force were violated. “After giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or move persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances,” states the section. The Army has acknowledged that mistakes were committed, and a comprehensive review has been carried out for conduct of operations in the future.
The way forward
With all hurdles cleared, the Army must bring closure to the case by taking disciplinary action as deemed necessary in a time-bound and transparent manner. The media and the public must be kept informed.
It is also an appropriate time for the central and state governments to review the conduct of the counter-insurgency operations in the northeast. There are stable political governments in most places, where BJP is either a coalition partner or in power. Agreements have been signed with most insurgent groups or are in the final stages. The once-secessionist insurgencies in the northeast have been reduced to a criminal industry involving the runt of erstwhile insurgent groups, politicians, police and the bureaucracy. Yet, the armed forces continue to function in a quasi-independent manner without political oversight.
The government has done well to review the application of AFSPA twice in the span of one year. In fact, there is a strong case to remove it altogether. The Central Reserve Police Force, the Assam Rifles and the state police must manage the residual insurgency. External threats are looming large; it is time for the Army to return to the barracks.
Lt Gen H S Panag PVSM, AVSM (R) served in the Indian Army for 40 years. He was GOC in C Northern Command and Central Command. Post retirement, he was Member of Armed Forces Tribunal. Views are personal.
(Edited by Zoya Bhatti)
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