Exploiting the killings to ratchet up the tension in the region and harden negotiating positions with the central government serves nobody, least of all the people of Nagaland.
The peace process must not be stalled because of this incident or distracted by calls to repeal the AFSPA, argues Vivek Gumaste.
The gut-wrenching deaths of 14 innocent civilians in Nagaland stemming from an Indian Army operation gone awry is a tragedy; a tragedy that spotlights the continuing perils of insurgency in the North East, namely its potential to shake the stability of the region and create chinks in the armour of our national security.
At the outset, the high decibel emotive chorus of outrage at this incident appears to be entirely justifiable and unquestionable.
On second thought, however, this scathing damnation, a knee-jerk response, begs a tempering revision for it lacks both the depth of logic or the antecedent of history.
It is imperative that we analyse this tragic incident calmly with sagacity and objectivity to effect appropriate corrective measures that safeguard civic safety without compromising national security and to ensure that the process of rapprochement continues unhindered.
The sequence of fatalities began on the evening of December 4, when a special unit of the army shot and killed six miners in Nagaland's Mon district mistaking them to be insurgents.
Angered by these killings, local villagers attacked army personnel setting fire to two security vehicles and in the melee that ensued eight more individuals lost their lives including seven civilians and a soldier.
Another civilian was killed the following day when a mob of over 500 people stormed a camp of the Assam Rifles in the district headquarters of Mon.
Nagaland is home to one of the oldest and deadliest insurgencies in India that date back to 1947 when on the eve of India's Independence from the British, A Z Phizo, the legendary Naga leader, declared Naga independence.
Over the years differences between Naga Leaders with different tribal affiliations has spawned a multiplicity of militant groups advocating Naga secession.
Brutal violence has been integral to the activities of these insurgent groups.
In one period, from 1992 to 2000, Naga insurgency claimed more than 1699 lives including 599 civilians and 235 security personnel.
While the last two decades has seen an overall tapering of the violence, major terror attacks continue to occur at frequent intervals.
In a ruthless attack in June of 2015, militants belonging to the National Socialist Council of Nagaland-Khaplang, ambushed and killed 18 soldiers of the Dogra Regiment in Chandel district.
More recently, the People's Liberation Army and the Manipur Naga People's Front jointly claimed responsibility for the ambush of an Assam Rifles convoy on November 14 in Manipur's Churachandpur district.
Seven people including Colonel Viplav Tripathi were killed; his wife and son who were travelling with him were also not spared.
Such instances are evidence that the Indian Army patrols a dangerous neighbourhood and functions under trying circumstances.
A split-second decision may mean the difference between life and death for both Army personnel as well as those on the other side of the gun.
In the current incident, the army was acting on credible information that insurgents had been sighted in the area.
Also, there are reports that the driver of the vehicle refused to stop when asked to do so. It appears to be an unintentional error carried out in the line of duty.
Nevertheless, the army has expressed regret and a high-level SIT has been instituted to investigate the matter and bring the guilty to book as per the law.
Consequent to this incident there have been calls to repeal the Armed Forces Special Powers Act.
To repeal the AFSPA is an open invitation for insurgents to step up their activities and a boon to our hostile neighbours who continue to foster efforts to destabilise our country.
AFSPA was first introduced in Nagaland and not Kashmir as people are prone to assume.
The genesis of AFSPA can be traced to the escalating public unrest in Nagaland in the early 1950s at the urging of Phizo: Telephone lines were cut; government institutions were burned and money was extorted from the public to sustain the insurgents.
Brigadier S P Sinha in his book, Lost Opportunities (Lancer Publishers. 2012) outlines the immediate events that preceded the promulgation of the AFSPA:
'NNC (Naga National Council- the political organization of the Naga people) formally declared the formation of Federal Government of Nagaland in March 1956 and hoisted its flag at Phenshinyu, some 40 km from Kohima, in the Rengma area.
'A parliament (Ho Ho) of one hundred members (Tatars) and a president (Kedaghe) with 15 ministers (Kilnosers), governors, magistrates and many other officials with the trappings of a full-fledged government was announced.
'The Naga Home Guards, which was by now 3,000 strong and armed with weapons left behind by Allies and the Japanese after the end of fighting in World War II, constituted the army of the underground. The Government of India intervened by sending troops of its regular army to quell the rebellion.
'The army began its operations in September 1956 and by the year-end 619 rifles (including muzzle loaders), eight machine guns, 17 sten guns, and some other arms and ammunition were seized or recovered... The hostiles attempted to seize of Kohima in June 1956 led by Kaito Sema and Tungti Chang.
'The town was attacked from three different directions on June 10, 1956. The rebels cut off telephone lines, electricity, water supply and destroyed a few bridges. The army sent reinforcements, which brought the situation under control... the hostiles were by now fairly well organised and had intimate knowledge of the terrain and an efficient intelligence network.
'In a well-planned action, the hostiles ambushed a road protection party of one junior commissioned officer and thirty-two other ranks of 9 Punjab on road Khonoma-Jaluke on April 1, 1957, and killed all except one who survived to tell the tale. The ambush party had consisted of two to three hundred Nagas. The assembly and concealment of such a large body of hostiles demonstrated the skill of Nagas in guerrilla warfare.'
In response to this serious threat to internal security and to ensure that the army was not hobbled by cumbersome bureaucratic and judicial restraints in its efforts to hunt down the insurgents, the Armed Forces (Assam and Manipur) Special Powers Act, 1958 was enacted on September 11, 1958.
There were two salient points to the AFSPA:
- Special powers of the armed forces: Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area, -- if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such 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 or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;
- Protection to persons acting under Act: 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 the powers conferred by this Act.
The notion that AFSPA is an unrestricted license to kill and that army personnel have blanket immunity is erroneous. The original Act itself clearly states that persons who act under the Act can be subject to scrutiny with previous 'sanction of the central government.' Over the years the AFSPA has withstood legal challenges.
In the case of Naga People's Movement of Human Rights v Union of India, 1997, a five-judge Constitution Bench unanimously upheld the law, but clarified: 'A complaint containing an allegation about misuse or abuse of the powers conferred under the Central Act shall be thoroughly inquired into and, if on enquiry it is found that the allegations are correct, the victim should be suitably compensated and the necessary sanction for the institution of prosecution and/or a suit or other proceeding should be granted under Section 6 of the Central Act.'
Similarly in 2016, a bench of Justices Madan Lokur and U U Lalit while providing a directive to the government on the alleged fake encounters in Manipur again emphasised that security personnel committing crime did not enjoy absolute immunity.
'The law is very clear that if an offence is committed even by army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the Criminal Procedure Code.'
AFSPA is not that draconian as it is made out to be nor does it carry an inbuilt immunity that is not challengeable.
The December 4 incident was tragic. But exploiting the killings to ratchet up the tension in the region and harden negotiating positions with the central government serves nobody, least of all the people of Nagaland.
The unintentional mistakes of a small band of army personnel cannot be seen as a proxy for the intentions of the central government and an entire nation. Saner heads must prevail.
India is large hearted enough to accommodate people of diverse ethnic, religious and linguistic backgrounds. The people of Nagaland must understand and realise this.
The peace process must not be stalled because of this incident or distracted by calls to repeal the AFSPA.
On the contrary, this incident must act as a nudge to hasten the peace process so as to prevent unnecessary bloodshed in the future.
Academic Vivek Gumaste, who is based in the United States, is the author of My India: Musings of a Patriot. You can e-mail the author at gumastev@yahoo.com
Feature Presentation: Rajesh Alva/Rediff.com
