Why Nagaland's Attempt To Prosecute Indian Army Soldiers For A Botched Operation Is Wrong

A Supreme Court order earlier this week closing criminal proceedings against army personnel for a botched operation that led to the deaths of 13 tribals in Nagaland’s Mon district in 2021 has evoked angry reactions in the northeastern state. 

The Nagaland government had initiated criminal proceedings against 30 personnel — one Major, two Subedars, eight Havildars, four Naiks, six Lance Naiks, and nine jawans — of the 21 Para Special Forces (SF) who were involved in the operation near Oting village on the evening of 4 December 2021.

A Nagaland police team led by a top officer that investigated the shootings held the army personnel guilty and charged them under various sections of the Indian Penal Code (IPC), including 302 (murder), 120-B (criminal conspiracy), and 201 (disappearance of evidence).

The Nagaland government filed a chargesheet against the army personnel and sought to prosecute them. 

But the wives of three personnel, including Major Ankush Gupta, filed a petition before the Supreme Court arguing that the Nagaland government did not have the authority to initiate criminal proceedings against the personnel without a sanction from the Centre.

Prior sanction of the Union government is mandatory for criminal prosecution of army personnel under Section 6 of the Armed Forces Special Powers Act (AFSPA), 1958. 

The Union government had rejected the Nagaland government’s request for sanction to prosecute the army personnel on 28 February 2023. 

A Supreme Court bench of Justices Vikram Nath and P B Varale upheld the contention of the petitioners — Rabina Ghale, Tulsi Devi, and Anjali Gupta — earlier this week and agreed that Nagaland cannot prosecute the 30 army personnel without the prior sanction of the Union government. 

The bench, however, maintained that if the Centre grants sanction for the prosecution (of the 30 soldiers), criminal proceedings can be revived against them.

The Supreme Court’s decision has evoked a storm of protests in Nagaland. Politicians cutting across party lines, civil society leaders, students’ organisations, and non-governmental organisations (NGOs) have condemned the apex court ruling and asked the state government to challenge the order before a larger bench of the Supreme Court. 

The Nagaland government, it is learnt, is reviewing its options. Earlier this year, it had filed a petition challenging the Union government’s refusal (which was conveyed to Nagaland in February 2023) to sanction the prosecution of the 30 army personnel by the state.

On 15 July, a Supreme Court bench headed by Chief Justice D Y Chandrachud and comprising Justices J B Pardiwala and Manoj Misra issued a notice to the Union government, asking it to file its reply to the petition challenging its decision against granting sanction for prosecution of the army personnel. 

The Nagaland government, in its petition, had contended that it had irrefutable evidence against the personnel for the killing of 13 villagers. But despite this evidence, the Centre had refused to sanction prosecution of the soldiers. 

What Happened On 4 December 2021

Based on intelligence inputs about the movement of cadres of two terror outfits in the area, the army team, lying in wait to ambush the terrorists, opened fire on some miners who were returning after a day’s work in a nearby coal mine.

Six miners, all residents of Oting village, died in the ambush, while two were injured. 

The killings were a clear case of mistaken identity. In the fading light of that cold December dusk, the 21 Para SF team mistook the miners who were carrying shovels, a single-barrel rifle, and machetes for terrorists and opened fire on them.

Two of the miners managed to escape and ran to Oting to inform their fellow villagers of the incident. 

The army team, realising their mistake, informed their seniors of the botched operation and asked for vehicles to transport the dead and wounded to a hospital. Senior army officers informed the police, who, however, took time to reach the site. 

Meanwhile, the residents of Oting who came to know of the killings gathered at the site of the ‘ambush’. Angry over the deaths of their kith and kin, they attacked the army team with machetes, choppers, and spears and set fire to the army vehicles.

One paratrooper was killed by the villagers, who also inflicted grievous injuries on other soldiers, including Major Gupta, who lost a finger. 

The deadly skirmish between the villagers and army soldiers forced the army team to open fire on their attackers, killing six more villagers. 

Later, residents of the district headquarters (Mon) attacked an Assam Rifles camp. Angry mobs set fire to some buildings inside the camp, forcing Assam Rifles soldiers to open fire. One local was killed in the firing. 

Nagaland’s Attempt To Prosecute Soldiers Is Wrong

The killings were a case of mistaken identity. The army personnel had no personal enmity with the victims and did not act with any mala fide intent. 

“It was a genuine mistake on the part of our soldiers. There were robust intelligence inputs that a few militants would be travelling in an SUV (sports utility vehicle). The miners were also travelling in an SUV, and since it was dusk, the shovels they were carrying were mistaken for rifles. In fact, they were carrying one rifle,” a senior officer posted at the Indian Army’s Eastern Command headquarters in Kolkata told Swarajya. 

The fact that the army team did not flee the spot after realising its mistake is enough evidence of the absence of mala fide intentions. 

“They (the 21 Para SF personnel) waited for police to arrive and take charge of the scene and transport the dead to a hospital. Had they wanted, they could have easily fled. And then they were attacked by angry villagers armed with traditional weapons. After one paratrooper was brutally hacked to death with a machete, the army team opened fire to save their own lives,” the officer said.

The then Army chief, General M Naravane, admitted that the incident was “regrettable” and was a result of mistaken identity. The Union government offered a hefty compensation to the families of the dead and injured, but the villagers turned down the offer. 

The Nagaland government is intent on prosecuting the army personnel despite knowing that the killing of the miners travelling in the SUV was a genuine mistake, while the next round of killings were an act of self-defence. 

The Nagaland government must be told by the Union government that the refusal to sanction the prosecution of the army personnel is based on the solid premise that they committed a mistake and had no malicious intent. 

Many in Nagaland, including the state’s political and civil society leaders, argue that the prosecution of the army personnel is necessary to bring closure and deliver justice to the families of the victims. 

Then, by those same standards, the entire rank and file of all factions of the National Socialist Council of Nagaland (NSCN), including the one headed by Thuingaleng Muivah, should be prosecuted for their involvement in killings and other heinous crimes. 

Will the people of Nagaland agree to Muivah and all others of the NSCN being prosecuted for the countless killings of army soldiers, cadres of rival factions, and civilians that they have either sanctioned or carried out? And for colluding with other countries (like China and Pakistan) to wage war against the Indian state?

It will be puerile to argue that the NSCN cadres and leaders have been granted amnesty and, being engaged in peace talks with the Government of India, cannot be prosecuted. 

If Nagas have no problem with the Centre granting immunity to NSCN cadres and leaders and shielding them from criminal prosecution, why should the Nagas have a problem with the Centre's refusal to sanction the prosecution of the Indian Army soldiers?

Especially since the firing on the miners was a genuine mistake, while the killings carried out by the NSCN were deliberate and with mala fide intent. 

Nagaland must be asked to abandon its attempts to prosecute the 30 Army soldiers. It needs to be told that a refusal to do so could lead to charges being drawn up against not only cadres and leaders of the NSCN but also ‘overground workers’ and sympathisers of the outfit.

Such a move will ensnare many politicians, civil society leaders, businesspersons, and others who have deep links with militant outfits. 

Also Read: 

Why It Is Necessary For AFSPA To Continue 

Why Renewed Demands For Repeal Of AFSPA In Northeast Seem Ignorant Of Ground Realities

How Withdrawal Of AFSPA From Many Areas Of Northeast Will Require Changes In Counter-Insurgency Operations