The indiscriminate shooting of a jeepload of miners in Nagaland last year led to a charge-sheet against 30 soldiers of the Indian Army, including a major. This has created a loss of confidence in the central government, which appoints the chiefs of the Army, Navy and Air Force through the defence minister and a cabinet selection committee.
The defence minister reports directly to Prime Minister Narendra Modi. President Ram Nath Kovind is the commander-in-chief of the armed forces. This is why the central government is directly responsible for the deaths of these miners and must compensate the bereaved families adequately for the loss of their earning members. Although there is no data available, it is likely that most of these miners had school-going children in their families to support. The 21 Para Special Forces have deprived them of their right to life which is a gross violation of Article 21.
The soldiers, who opened fire without following the standard operating procedure to identify those in the jeep, killed six miners and grievously injured two others whose testimony served to nail the killers. Were it not for the testimony of these two survivors, these soldiers would have escaped without punishment because it appears from media reports that the soldiers tried to conceal the killings by covering the bodies with a tarpaulin and sitting on top.
The family members of the men who did not return home went in search of them, and found their blood-stained bodies. The soldiers refused to answer their questions, and the attempt to camouflage the killings resulted in further violence culminating in the death of six more villagers and one soldier of the Assam Rifles.
There is no doubt that the Armed Forces Special Powers Act (AFSPA) was a flagrant violation of citizens’ fundamental rights because it granted total immunity to the security forces from being prosecuted in the courts. For the layperson, there are various types of rights such as the fundamental rights guaranteed between Articles 12 to 32 of the Constitution, rights flowing from the Constitution which are not fundamental rights, rights emanating from statutory law, and rights emanating from immemorial customs or contracts.
So, the Army cannot be made immune to the consequences of random acts of killing innocent civilians in the guise of maintaining the sovereignty and integrity of India. The Army’s right to immunity for acts of shooting those who resort to violence must be restricted to just that, without extending it to the inhumane shooting of civilians. If that be the case, the right of life of those living within India would then be a chimera – like the right to freedom of speech or the right of MPs to ask inconvenient questions to an inconvenienced government.
After the killing of the miners, unrest broke out throughout this north-eastern state which is why the central government repealed the AFSPA from 15 police stations located in seven of Nagaland's 15 districts. This draconian law was repealed from several districts of Manipur and Assam as well, after an announcement by home minister Amit Shah. There is no doubt that demands for secession should be put down firmly by the government but this does not justify the killing of innocent miners without following standard protocols.
The Army has a duty to protect the territorial integrity of India, while all persons including aliens who live in India have a right to life and liberty. Hence, attempting to allegedly cover up the killing of the miners who were travelling in a jeep on December 4, 2021 at Oting in Mon district of Nagaland was a heinous crime.
What is astonishing is that though the Nagaland government sent this fact-finding report to the department of military affairs in the first week of April, followed by a reminder, the army officers responsible for the killings have not been prosecuted – because the civil courts cannot try them without the sanction of the central government, which will not be easily given. To assuage outrage among the families of those killed, the army can court-martial their officers who are directly responsible for the murders of these miners.
However, court-martials are not open to the public, which detracts from the principle that justice must not only be done but also seen to be done. Court-martials are not like the proceedings in civil courts or for that matter the criminal courts as well, because the Army Act, the Navy Act and the Air Force Act lays down its own procedure for conducting such court-martials, which may end in only a slap on the wrist but not dismissal from service – which is what would compensate these bereaved families.
Section 6 of the AFSPA clearly lays down that : “No prosecution, suit or other legal proceedings 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 powers conferred by this Act.” This section alone confers total immunity to these alleged killers of the innocent miners, which is why it can be amended without necessarily repealing the entire AFSPA.
Power is abused when there is no accountability, which is precisely what section 6 affords to trigger-happy army officers who shoot first and ask later. In 2012, the Extra Judicial Execution Victim Families Association of Manipur approached the Supreme Court to have the CBI investigate 1,528 alleged fake encounters in Manipur alone.
The first six encounters proved to be fake, which prompted the Supreme Court to observe that the veracity of the allegations made by the association could not be doubted. The AFSPA and the right to life of those who live in the North-East are anti-thetical. One has to subsume the other, which is why the AFSPA must be replaced with a more humanitarian law.
(Olav Albuquerque holds a Ph.D in law and is a senior journalist-cum-advocate of the Bombay High Court. He tweets at @DrOlavAlbuquer1)