Central govt rightly denies sanction to Nagaland state govt to Prosecute Army Special forces personnel for a operation which resulted in civilian casualties
An anti-insurgency operation resulted in the fatal casualties of 13 civilians in Nagaland’s Oting in December 2021. A one sided state police’s SIT concluded that the victims were shot “with a clear intention to kill”.
The Army Act enacted by the Sovereign Parliament clearly states that in an Operational area any death of a Civilian caused by an army personnel will be tried by a military court if required and not the Civil. In case the State Government has strong objections then they must approach the Central Govt and obtain sanctions for a Civil trial. Sanction is to be accorded based strictly on the merit of the case (i.e. whether it was intentional killing of a civilian or an operational accident).
Further when in a given area Armed Forces Special Powers Act 1958 is promulgated then it provides additional protection to the Armed Forces personnel for excessive use of force in line of duty and even includes unintentional mistakes. The very fact that AFSPA has been imposed it means that normal constitutional process has broken down and elected political authorities, civil administration including police and judiciary has completely failed in discharging their duties.
It also means that extra ordinary means are required to restore the Constitutional Writ of the Govt, otherwise the Civil administration with help of police would themselves would have been able to restore normalcy. Such extraordinary methods are applied by the country’s military which gets deployed by the Central Govt to restore normalcy.
The Armed Forces (Special Powers) Act thus grants immunity to the Army and even Security forces in such instances. Once AFSPA is enforced in a Disturbed area, the law says that “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the central government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”.
The Nagaland police which had failed in its duty to ensure Constitution al process, acted with alacrity to prosecute the personnel of the Indian Army. However Nagaland State Govt having failed to obtain the requisite Central Govt sanction, it has informed a lower court in State of Nagaland that the Union government has denied sanction to prosecute the 30 Army officers and Other Ranks who were part of a anti-insurgency operation that resulted in the fatal casualties of 13 civilians in the state’s Oting area in 2021.
The state inspector general of police (CID) Roopa M. on Wednesday, April 12, said the state crime cell police station and the special investigation team (SIT) (they carried outa one sided enquiry only because naturally as per law Army did not place itself under their jurisdiction) have informed the Mon district and sessions judge that the Union government’s Department of Military Affairs and the Ministry of Defence have conveyed to the state its denial to permit prosecution against all the accused in the Oting incident of December 5, 2021.
The lower court has been hearing the matter based on a case filed in Mon on May 30, 2022 by the state police. The Court should be aware that it has no jurisdiction over the Army personnel as per the Army Act.
The denial of sanction was reconfirmed by the office of the state director general of police in another press release on April 13.
The SIT was formed by the state government’s home department following a huge public outrage across the North-eastern state at the killings of 13 civilians, who as per local police were returning from work at a coal mine. The Army said it was a case of “mistaken identity”.
One army man was also killed in a subsequent attack by locals, who rushed to the spot after hearing the gunshots. This itself shows that Army was highly restrained in its action. Otherwise in retaliation scores of additional civilians would have been certainly killed. In total there were 15 civilian casualties during the operation.
In normal circumstances these highly specialized Special Forces team would have just vanished from the scene after the ambush but having realized their mistake, they began trying to look for the wounded in order to save them. This resulted in them getting surrounded by civilians from nearby (was Some person/insurgent leading this crowd? How suddenly a huge crowd assembled at the ambush side, at night, without fear of getting shot by the Army?????).
In fact even to date Just a few weeks ago, the government has extended the term of the AFSPA law in the state by six months – which began on April 1. Though now “disturbed area” status will be applicable to only eight of the districts and 21 police stations falling under five other districts of the state. This is because Army has been able to restore Normalcy in rest of the districts and the Civil administration including Police have limped back and should be in a position to discharge their duties abdicated earlier.
Though the Police In March 2022, through the SIT completed its one sided investigation and the State Govt sought sanction from the Central government to prosecute all 30 army personnel (from where they got the numbers who had participated in the operations is not known) involved in this anti insurgency/ anti terror operation.
The Union government’s sanction is required for the Civil trial to have jurisdiction over Army personnel. The SIT on its own (without any military inputs) unilaterally concluded that the victims were shot “with a clear intention to kill”. Well the highly educated and so experienced SIT members should be knowing that this was not a AID TO CIVIL AUTHORITY type issue but a purely anti insurgency/anti terror military operation based on intelligence inputs. The aim in such operations is to inflict maximum casualties. In addition these troops belonged to Special Forces Regiment, the same who had carried out Surgical strikes in Myanmar/ across Uri in POK. So it must have been the “ Police Ethos” which must have prompted the SIT to make the bizarre statement that “Victims were shot with clear intention to kill “ or was this Statement made to gain some political mileage??
The SIT report also got published exclusively by The Wire in July 2022 (who gave the clearance for publication of this sensitive unilateral report? SIT also stated that for about 50 minutes the team commander of the anti-insurgency operation knew that they were on the wrong route (from where did SIT get this SECRET OPERATIONAL information?.)
Two months after the SIT submitted its report, the political and bureaucratic angle of the report had became very obvious. So in July 2022, the wives of the SF personnel too decided to come in the defence of their husbands. These brave women then succeeded in getting an interim stay on further proceedings on the matter from the Supreme Court(otherwise Some crisis would have certainly taken place). One Special Forces Braveheart of the Para 21 SF of the Army had also lost his life.
So the Army also filed a case in Mon district of his intentional killing by unknown civilians. The army also concurrently ordered a court of inquiry on the matter.
What certainly needs to be investigated is that which outfit provided the intelligence which led to this operation.
