News analysis | Nagaland probe and 1997 Supreme Court judgment

A deserted area during a 12-hour Nagaland bandh called by some state organisations over the death of 13 people, who were allegedly killed by Armed Forces, in Mon district, Monday, Dec. 6, 2021   | Photo Credit: PTI

The investigation into the Army’s botched operation in Nagaland may have to provide answers to whether a 1997 Supreme Court judgment advocating “caution and use of minimum force against our own people” in AFSPA regions was followed or not.

The November 1997 judgment of a Constitution Bench in Naga People’s Movement for Human Rights versus Union of India held that the power under Section 4(a) of the AFSPA to use deadly force should be employed only under “certain circumstances”. The court noted that the “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.

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These preconditions include a declaration by a high-level authority that an area is “disturbed”. The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first. The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”. These conditions were to ensure that the armed forces use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”

‘Ten Commandments’

A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas.

“Remember that the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration,” the court had quoted from the Commandments.

The court underscored how the Commandments insist that “operations must be people friendly, using minimum force and avoiding collateral damage – restrain must be the key”. It added that “good intelligence is the key to success”.

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One of the Commandments exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.

The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.

It noted that if “members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are ‘enemy’ not only the rule of law but our democracy would be in grave danger”.

The verdict referred to how the Constitution Bench in 1997 held that “our armed forces are not trained to fight and kill our own countrymen and women”.

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Printable version | Jan 27, 2022 7:45:26 AM |

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