Justice in limbo: A year since Oting killings…

Imkong Walling
Dimapur | December 4

A special investigation by the Nagaland Police and a parallel inquiry by the Army were what occurred in the aftermath of the tragic Oting killings of December 4, 2021. A year since, justice continued to evade the victims and the bereaved. 

 A recap
It was a covert counter-insurgency operation that claimed 14 lives— 13 civilians and 1 commando of the 21 Para (SF). In the botched operation, 8 civilians travelling in a pickup were ambushed, killing 6 on the spot and 2 others critically wounded. As per the SIT report, the ambush occurred in the evening, around 4:20 pm, in the Oting-Tiru area of Mon district.  The victims were coal miners returning home from the coal-rich Tiru valley bordering Assam. 

The ambush set the stage for more violence, some 5-6 hours later, when angry villagers confronted the commandoes, who, as widely reported, were trying to conceal the dead bodies of the 6 victims.  In the deadly confrontation, 7 more civilians were gunned down, while the commandoes also incurred losses, with 14 wounded, 1 fatally, as they retreated to cross the inter-state border into Assam. 

The effect reverberated in Mon town the next day on December 5, in which a civilian protestor succumbed to firing from security personnel. The events of December 5 were however not covered by the terms of reference of the SIT.

As revealed by the Nagaland DGP in June, this year, the SIT completed its inquiry and submitted the report to the state government sometime in March to subsequently charge 30 soldiers (1 Major, 2 Subedars, 8 Hav/THM, 4 Nk, 6 L/Nk and 9 Paratroopers) of the 21 Para (SF). The charge was filed at the District and Sessions Court, Mon, on May 30.

As the case involved Army personnel in a state where the controversial Armed Forces (Special Powers) Act (AFSPA) is in operation, the SIT sought prosecution sanction from the Department of Military Affairs, at least twice, in April and May. The sanction for prosecution never came. 

Concurrently, the Army had also undertaken a ‘Court of Inquiry,’ the facts/findings of which remain beyond the public domain. The 21 Para (SF) had also filed a police complaint on December 11, 2021 at the Tizit Police Station to investigate the death of the Para commando and the assault on other personnel of the 21 Para (SF) and loss of government property. 

Status today
In July, the Supreme Court stayed the proceedings in the Mon District & Session Court after Writ Petitions were filed by the families of the commandoes against whom the SIT filed the charges. The suspension of the legal proceedings was given by a two-judge Bench on July 19. The Bench cited Section 6 of the AFSPA, which gives immunity to the military personnel from prosecution in civil courts. It says, “No prosecution, suit or other legal proceeding 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 petitions further demanded the quashing of the SIT “findings” and any other legal proceedings filed against the commandoes involved.  The court last heard the PILs on November 1 and listed it for hearing after 8 weeks. 

Prior to the stay from the SC, the Army has also pushed for taking over the legal proceedings against the accused commandoes, in a military court. According to official sources, the Army filed a formal application in the Mon court. However, it was kept pending following the stay from the apex court. “Everything now depends on what the SC says,” commented one source. 

What If
The general apprehension has been that the accused soldiers would get favourable trial if they are tried in a military court. But have there been instances of Army courts acting biased? 

Sources in the state security apparatus chose to disagree. According to one, military courts are rather swift and there have been instances of convictions. If charged guilty, the accused will be ‘dishonourably discharged,’ which in military parlance implies losing ‘ex-serviceman’ status and deprived of any pensionary entitlements due to a soldier on retirement. 

Further punishments include rigorous imprisonment and even life terms, the source said, citing an incident, known as the Nyoma Incident, which occurred in 2012. It related to a clash between soldiers and officers of an Army unit stationed in Ladakh over a molestation allegation by an officer’s wife. In the disciplinary proceedings that followed, 168 soldiers, including 4 officers were court-martialed. 

There was another incident (Machhil Encounter) dating to April 2010, in which three Kashmiri youths were killed and branded as militants in an alleged staged killing by the Army.  In November 2014, the soldiers — 2 officers and three sepoys — involved in the fake encounter were convicted by a Military Court and sentenced to life imprisonment, following a one-year-trial. There was an appeal however, which resulted in the Armed Forces Tribunal suspending the life sentences, while granting bail to the 5. The Tribunal had said at the time that it would continue hearing the case.

Meanwhile, at the civil society level, there were calls from various quarters including the State Legislators, advocating the repeal of AFSPA in the aftermath of the killings. The Government of India responded with a partial repeal of the AFSPA in the state.

Source: https://www.morungexpress.com/justice-in-limbo-a-year-since-oting-killings