Why Army Officers Involved in Nagaland Civilian Killings Must Be Prosecuted

The Ministry of Defence has denied sanction to prosecute Indian Army officers who were involved in the killing of civilians in Nagaland’s Oting in December 2021. This case should awaken the conscience of the citizens of India and its lawmakers. If this has not happened yet, perhaps putting the issue across more clearly will help. 

On December 4, 2021, the security forces fired on an unarmed civilian vehicle, near Oting, Nagaland and killed six unarmed civilians who had not provoked them in any manner. According to eyewitnesses, the Army tried to remove the bodies to hush up the incident. Some even allege that the Army was attempting to dress the civilians as militants, in an attempt to make it look like a “genuine encounter”. The next day, the Army opened fire on an angry crowd, resulting in seven more deaths. 

Later, the Union home minister told parliament that the tragedy occurred because there was information that militants would be travelling in that route and the Army had, hence, laid an ambush. The suspected vehicle arrived, and, as the security forces claim, did not stop when it was signalled to do so. The ambush party opened fire, resulting in the killing of six Naga civilians and injuries to two. They later learnt that it was a case of “mistaken identity”.

Thereafter, numerous attempts were made to provide some rationale for the ‘mistake.’ For example, it was claimed that the killing of a colonel of the Assam Rifles and his family in Manipur a few weeks before the Oting killings had made it necessary to crack down on militants in a big way; that the Assam Rifles has an excellent service record; and that Pakistan and China were exploiting the case to foment anti-India feelings.

But what exactly is the case? It is made out to be one of ‘mistaken identity.’ This is because the common citizen sympathises with the difficulties faced by the Army in combating militancy and insurgency and is quite prepared to pardon soldiers for genuine mistakes made under pressure.

I too am prepared to pardon such mistakes. As a veteran who has served exactly in that area, I know the ground realities all too well. I am also in a good position to discern the fine line between mistakes made under pressure and blunders flowing from wrong interpretation of the law, assisted by the safety net provided by the Armed Forces (Special Powers) Act (AFSPA). 

In this case, the forces cannot claim ‘mistaken identity.’ If that is the charge, they can claim ‘pressure of work’. Why mustn’t the Army be allowed to use ‘mistaken identity?’ Simply because, even if the occupants were militants, the soldiers were not right to fire with the intention to kill, or even injure.

It was not a case of ‘mistaken identity’ but one of ‘unprovoked killing’ of people – whether innocent civilians or militants – without making any effort to arrest them and make them face the law.

In India, you are not allowed to shoot people, even if they are militants, even if you are a member of the Army serving in a ‘disturbed area’. You are to arrest the accused and hand them over to the police for trial. Shooting to kill – or even injure – is permitted only in self-defence, i.e. if the other party behaves in a way that threatens the lives of the soldiers. 

It may be argued that when dealing with militants, the security forces must be allowed to shoot first, lest they lose good men. This is true, but irrelevant. The law, as it stands today, does not allow army officers to shoot militants if they are not resisting. If the forces face any danger in complying with this directive – which they do – it becomes the duty of the state to help them by providing better training or equipment. In any case, it is something to be sorted out between the forces and the state, not between the forces and citizens. The government has the right to change laws, but if they stand, they must be respected. Ensuring that is the duty of the judiciary. Ensuring that the judiciary is reminded of its duty is the job of citizens. 

We must also note how this trigger-happy Army acts when the other side is not unarmed countrymen but China’s Peoples Liberation Army. As the Galwan incident shows, the Army ordered its men not to use arms, even when they were under attack by the Chinese. The government has claimed that the soldiers could not use firearms because of “long standing practice”. But what we are addressing here is the ethics of the case, not the situation. Ethics demands that a government must not send its troops ill-equipped to deal with the enemy. Readers must decide for themselves if soldiers sent on a mission to evict Chinese soldiers should be allowed to carry arms but not use them even in self-defence! Surely, the Indian army was not of the view that Col Santosh Babu’s team would be welcomed by the Chinese. In any case, now the same government has changed the ‘no use of firearms’ rule. It took Col Santosh Babu and his men to die for the government to accept this norm of warfare.

The defence ministry’s decision not to grant sanction to prosecute the soldiers involved in the killing of civilians in Nagaland can be faulted on at least 10 counts. But let it answer just one: Are Indian soldiers, operating in disturbed areas, allowed to shoot to kill occupants of a civilian vehicle moving peacefully on a road, if they genuinely believe that the occupants are militants? Or, are they to arrest them?

As a retired service officer who has dealt with such situations and served in Mon district, I know that such blunders can only be prevented if action is taken at the corps level or higher. It is they who must lay down standard operating procedures (SOPs) and, more importantly, ensure compliance. Also, the leadership at this level creates pressure to deliver ‘at whatever cost’. They reward individuals and units for operational acts and have the power to penalise them for violations. They know what is happening but choose not to do anything because such incidents do not adversely affect them. Courts of Enquiry never harm people at high levels. They have no motive to change. They don’t have ‘skin in the game.’

In cases like these, the state has a greater role and responsibility to play than the Army. The state has provided arms to soldiers, so it has a responsibility to control how they are used. Consider a person who owns a fast car or a deadly animal. If the owner cannot ensure that innocent bystanders are not harmed by the car or the animal, the state will not allow it in on the streets and in the park. The same principle applies here. 

To add insult to injury, the soldiers involved in the killings are not being subjected to a trial for murder in an open court. It is like the case of Major Leetul Gogoi, who lashed a Kashmiri to his jeep and used him as a human shield. Had he been punished, it would have remained a case of just one officer going rogue. But by condoning him, the whole hierarchy became complicit. Similarly, if this ambush party is made to face the law, it would remain a limited incident. But if the Army protects them, as they are doing, it becomes complicit at the highest level. If the Army is considering punishing the culprits internally, they are failing to understand that justice must not only be done, but should also be seen to be done.

No one in India should be killed unless it is in self-defence or by an order by a judge. All other killings are illegal. If someone claims these killings were made legally, they should prove it in an Indian court. If they can get away without a trial by quoting some rules, those rules should be subjected to judicial scrutiny.

But how many people can challenge the Indian state? For that, a nation needs to be ashamed. 

Col Alok Asthana is a veteran. He can be contacted at alok.asthana@gmail.com.