Encounters between perceived insurgents/terrorists and the Indian Armed Forces invariably trigger the bugle of human rights violations and calls for justice. The killing of six innocent miners on 4 December 2021 at Oting in Mon district of Nagaland was one such case. A detachment of India’s elite Para Special Forces led by a Major laid an ambush based on intelligence received from the headquarters and fired at an approaching pick-up truck carrying eight miners returning home from work.
The Army officially acknowledged it as a case of “mistaken identity”. The two miners injured in the attack were evacuated and provided immediate medical aid. The incident witnessed violent local reaction that included snatching of weapons followed by the troops firing back in self-defence. Seven more civilians and a Paratrooper were killed.
Separate investigations by the Nagaland Police and the Army ensued. The findings and recommendations of the Army’s Court of Inquiry headed by a Major General are not known publicly. But the Special Investigation Team (SIT), constituted by the Nagaland government, ruled all thirty Para (SF) personnel who participated in the ambush guilty of murder, attempt to murder and several other violations of the IPC.
Under the Armed Forces Special Powers Act (AFSPA) 1958, a legal process against Army personnel could only be taken forward after obtaining sanction from the Ministry of Defence (MoD). Last week, the MoD’s Department of Military Affairs (DMA) denied sanction to prosecute the 30 Armymen. The Paratroopers involved in the killing must have heaved a sigh of relief for they had perhaps acted “in good faith”.
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Army can undertake legal process
In all probability, the DMA’s denial of sanction was based on the circumstances that sent the troops on a mission that fell victim to a distorted perception caused by uncertainty, danger and fear. The forces at play in the minds of the leaders and the troops can best be understood by persons who have been part of similar ambushes during counter-insurgency operations. Reaching the conclusion the SIT arrived at was possible only by misreading/ignoring the psychological condition of the troops at the time of the firing. Unless they came to believe that these troops of Special Forces who represent the best of the best in the Army are unprofessional and cold-blooded killers. Even if they do not harbour such beliefs, the SIT in all probability was acting as a handmaiden of the government of Nagaland that politically has no choice but be seen as taking action supportive of the public outcry against killing of innocent people. It is because of such reasons that the troops are provided protection under AFSPA, as long as they acted in good faith.
The legal process is now in the Army’s court. The DMA’s denial of prosecution sanction opens the path to follow up on the findings of the Army’s Court of Inquiry that were hitherto blocked by the parallel process undertaken by Nagaland government. The Court of Inquiry, unlike the SIT, would have had access to all the Paratroopers involved in the ambush as well as people in the chain of command to ascertain the truth. The Major who led the operation and later ordered firing on the violent protesters would have a lot of answering to do. Individual mistakes regarding negligence of duties should hopefully be punished for which the Army authorities are empowered. Lessons learnt should also be incorporated in the training process.
The protection provided by AFSPA is against unlawful prosecution. But the FIRs remain on record and as far as the involved Army persons are concerned, there is the possibility of action against them in the future, depending primarily on the political winds that blow at that time and are shaped by voices of the victim’s families and human rights groups. They may be innocent according to law, but they would be subject to the due process of law, which in India is often, in and of itself, the most common ‘punishment’ inflicted on the majority of people charged for the infringement of the law. Somewhere in the back of their minds, the troops will have to carry to their graves the memories of this tragic operation that claimed innocent lives.
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Real arena of national concern
The refusal of sanction for prosecution by the DMA coincided with a much-publicised “encounter” killing of two fugitives in Uttar Pradesh and the chief minister applauding it. This confirmed an established pattern that Uttar Pradesh prefers to take law into its own hands and deliver justice through encounters by subverting the law through claims of self-defence. At a broader level, in several states, the rule of the law is increasingly being practised as rule by law. Many citizens are besieged by the State that kills, incarcerates and binds with legal hurdles, and does so with impunity.
The dice is loaded against individuals who don’t enjoy institutional protection. It is therefore gratifying that the DMA has decided to protect the thirty Para SF personnel in the context of police FIRs and Nagaland SIT’s findings. The actual logic behind the protection may never be known to the public as attempts to seek information under the Right to Information (RTI) Act 2005, on decisions made in earlier cases, have been turned down on grounds of national security. But such lack of transparency fuels doubts of cover-ups.
The larger issue for the nation is – who will protect the citizens against the rampages of the State, which when directed against political rivals find clear appreciation even when the actions reek of blatant misuse of power. The politician-police nexus are wielding sharper knives and sometimes prefer to be the investigator, prosecutor, judge, jailor, and executioner. When viewed as a combination of misuse of other institutions and governmental mechanisms, to aver that India’s democratic credentials are weakening may be an understatement.
The relief provided by the State to 30 Armymen despite the killing of innocent people cannot, however, be viewed as misuse of powers. Instead, it has used its powers to provide protection to soldiers who had acted in good faith under conditions that somewhat mirror battlefield scenarios. Tragically, the price in this case has been paid in innocent lives that can find no recompense.
The real arena of national concern should be the widespread misuse of powers by the political leadership that enjoy protection from institutions that are mandated to protect against such misuse. Authoritarianism is the trend and it’s worrying that it has fairly widespread public partisan support. The many socio-political forces at play are riding their own revered gods and fast becoming a law unto themselves. God save the citizens from such forces.
Lt Gen (Dr) Prakash Menon (retd) is Director, Strategic Studies Programme, Takshashila Institution; former military adviser, National Security Council Secretariat. He tweets @prakashmenon51. Views are personal.
(Edited by Prashant)