Nagaland Civilian Killings: Who will investigate, whom & how?

KAKALI DAS

The act called AFSPA stands for the ‘Armed Forces Special Powers Act’ which, basically, allows the armed forces to step in as police in areas where the government deems to have a sensitive law and order situation.

So, in India, this particular act is in place in several places such as, Jammu & Kashmir, Nagaland, some parts of Manipur, Arunachal Pradesh. It has been an issue for a fair amount of time now.

The incident that has brought it into a tension, again, this weekend is of the 14 civilians who were killed over the weekend in a special forces operation that went horribly wrong, where they shot at a pick-up Van that was carrying civilian miners, in a case of what was confirmed as ‘mistaken identity’ by the Home Minister in the Parliament.

After which there were angry crowds of people that gathered who were fired upon again in self-defenses by the forces, and as a result, more people died.

The statement by the Home Minister in Parliament said there was a tip off indicating there would be movements of insurgents. He said that the man who was carrying these daily wage miners back home from work didn’t stop when he was asked to, which is why it was assumed that this man was carrying extremists.

They were then fired upon and the following two openings of fire were done in self-defence. The Home Minister acknowledged that this was a case of ‘mistaken identity.’

Nagaland Civilian Killings: Who will investigate, whom & how? — Mon: Nagaland Chief Minister Neiphiu Rio addresses the funeral of the 13 people who were allegedly killed by Armed Forces, in Mon district, Monday, Dec. 6, 2021. (PTI Photo)(PTI12_06_2021_000214)

What kind of powers does this AFSPA act give the armed forces in places like Nagaland? Does it allow the police, for example, to investigate, question and drop a report? We know that the Supreme Court has passed a judgement in 2016 on AFSPA as well, what impact does that have in this incident? Is it really time for the government to repeal AFSPA?

The act came into force particularly arising out of events in the northeast in the 1950s. It first came in with regard to Manipur and certain disturbed areas of what was the then undivided province of Assam.

It gave special powers to the armed forces, and the core of the act is ‘Section 4’ which says that any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may in a disturbed area, a) if he is of any opinion that it is necessary to do so for the maintenance of public order after giving 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.

So, essentially, it gives powers to even a non-commissioned officer of the army in a disturbed area if he apprehends something to shoot after giving whatever warning he thinks necessary. He can also destroy any arms, dump etc.; he can arrest without warrant any person who has committed a cognizable offence or against whom suspicion exists, or enter and search without warrant any premises to make any such arrest as the force says or recover any person.

Meaning, anything which is done under this act is protected, because no prosecution, suit or other legal proceedings shall be instituted except with the previous sanction of the central government. So, for an instance, if somebody shoots you, you cannot prosecute him, or file a suit against him except if you have the central government’s permission to do so.

“It’s a truth that the central government rarely gives permission.” Sanjay Hegde, Senior Advocate, SC said.

The centre says that the armed forces are not necessarily used for police duties, except in certain disturbing areas, and it is used in a variety of situations. And that if they take any operational decisions on the ground, they will be rendered immune from prosecution or any legal proceedings unless the centre specifically authorises.

On being asked if this requires or merits investigation, Sanjay Hegde said, “Of course it cannot go un- investigated. But, who is to investigate?”

The army says that they have already launched their own investigation, proceedings under army law, and they would do whatever they deem necessary. On the other hand, the state administration says that it’s the state’s civilians who have died, and hence, their policemen will also investigate and take actions as necessary.

“But, the state police cannot go further beyond a point, except if there is cooperation from the army and sanction from the central government at the necessary state. As of now, it is all in a preliminary stage,” the Senior Advocate further said.

“If we have the police investigating the police, the possibility of that reaching a logical, impartial conclusion is fairly slim” – Sanjay Hegde

On being asked if he believes that if the army were to investigate the army actions here, would it be a completely impartial investigation or at least to the satisfaction of civil society that has to live under that army in this country, Sanjay Hedge said, “I give credit to the army that sometimes it does a much more honest job than what happens in these civil circumstances, but there is also the question of institutional loyalty, trade union solidarity.

Sometimes a man or an institution being a judge in its own cause is not necessarily healthy nor does it carry credibility, and particularly in these disturbed areas. If a fair job is not seen to be done, these places get all the more disturbed. Every such unanswered or unsatisfactory investigation then leads to more incidents. So this is a call for both the army as well as the government to take.”

Here, I would drag your attention to a SC judgement – there was a bench in 2016, in the Supreme Court headed by Justice Madan Lokur which examined the plea that was placed before it asking for investigations into a 1,528 deaths in the state of Manipur, which were alleged fake encounters involving the army and the police. The bench then said that there had to be inquiries that were independent of the armed forces.

Justice Lokur, who has now retired, spoke with NDTV a few days ago, and he did say that it won’t be enough to have the army investigate the army, or the police investigate the army, because they do not have the right to powers. It has to be an independent group of people who are constituted to investigate.

The real problem is – if an institution is a judge in its own cause, then it does lack credibility and particularly in circumstances in a disturbed area. Would the Naga people, who quite frankly were in talks with the Indian government about their own flag and constitution etc., be satisfied when they are told that their police can’t investigate, and it’s only the army who can, and hence, ask them to trust the army?

‘Trust’ is what has dragged us in this position today, because you can have ‘mistaken identity’ in the first incident, but the concealing of the bodies, sitting on them and trying to shoot your way out of trouble thereafter, shows a great lack of leadership to say the least.

The Indian army is our army, but when the Indian army is used against Indians, there has to be certain modus operandi which is very careful, and if after that there are still mistakes, those mistakes have to be explained in a satisfactory manner to all Indians.

An Appeal – For the people who live under AFSPA, and for the readers who aren’t familiar with this act, kindly do some research, read about it, there is a lot of literature available on the internet about the various areas of the country that are currently under this act. It’s our responsibility to understand it better, and from all points of view.

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