Joshua Sheqi, Advocate
Gauhati High Court, Kohima Bench
As second generation victims of the acts of atrocities against our parents and grandparents, the very presence of Indian Army personnel conducting random raid/checking on the road makes me boil hot lava both physically and spiritually. Though I have nothing personal against any officer/personnel in person, any show of superiority complex by any officer or personnel is beyond my level of tolerance. The untold pain caused is enough to endure for generations. Perhaps I am not an exception to lakh of Nagas who haven’t forgotten.
Over the years, I have come across many kind and reasonable Army officers and jawans conducting random checking in the highways with an exception to some stupid ones, below the level of human beings. The past actions may be forgiven, but it must be noted that it is never forgotten. The Nagas were bloody headhunters and have started loving peace for only one generation or so. We must be encouraged to love peace, because we have respect, but generally have fear for nobody.
We know that the role of army has contributed a lot in controlling crime rates, but the overall rating of the Indian Army is hugely on the negative till today. It is unfortunate that Nagaland continues to be declared as Disturbed Area and the public has to put up with the Indian Army bases in the midst of hugely populated civilian areas. In this awkward situation of a State like Nagaland where the public are made to live in a war-zone like area, the role, demeanor and action of the Indian Army is expected to improve to win the confidence of the Nagas.
Of the many encounters, I felt offended last night, the 27th November, 2021, when I was returning from my village Mishilimi to Kohima with some of my colleagues after a short jungle trip. Our identity as High Court Lawyers was confirmed. Even then one jawan started opening bags, as if it belong him/them and it is their birthright to do so! I had to jump out from the vehicle to confront. I am not good in Hindi, but a young officer uttered something which sounded like, “So what if you are High Court Lawyers?” Unless there are specific information/inputs against anyone, the confirmation of the identity of the person who is not is not a criminal is more than sufficient. The continuous harassment on innocent public must be stopped forthwith. If a practicing Lawyer(s) is/are not safe, then how about the innocent public who cannot stand up for themselves?
It is high time for the Indian Army to make amends with the Naga public. The more the provoking attitude, it only opens up the old wound inflicted upon us. We the Nagas as well the Indian Army must educate ourselves with what the Supreme Court of India decided in the case of NPMHR Vs Union of India. The plain and simple language of the Judgment clearly shows that the permission of the local administration is required and the presence of police personnel; both male and female is also required. I hardly see that the Indian Army conducting such highway raid/checking comply with the direction of the Supreme Court of India. Hence, I am sharing only one paragraph of the Judgment for all to digest.
The same is reported in several journals as shared below:
(1997) Sup ACrC 162 : (1998) AIR(SCW) 8 : (1998) AIR(SC) 431 : (1998) 1 AndhLD(Criminal) 220 : (1998) 1 CalHCN 34 : (1997) 9 JT 431 : (1998) 1 KLT(SN) 11 : (1997) 7 SCALE 210 : (1998) 2 SCC 109 : (1998) SCC(Cri) 514 : (1997) Sup5 SCR 469 : (1997) 10 Supreme 169
SUPREME COURT OF INDIA
FULL BENCH
( Before : J. S. Verma, C.J; S. P. Bharucha, J; S. C. Agrawal, J; M. M. Punchhi, J; A. S. Anand, J )
NAGA PEOPLE'S MOVEMENT OF HUMAN RIGHTS — Appellant
Vs.
UNION OF INDIA (UOI) — Respondent
Para-58-
"LIST OF DO'S AND DON'TS WHILE ACTING UNDER ARMED FORCES SPECIAL POWERS ACT, 1958
Do's.
I. Action before Operation.
(a) Act only in the area declared 'Disturbed Area' u/s 3 of the Act.
(b) Power to open fire using force or arrest is to be exercised under this Act only by an officer/JCO/WO and NCO.
(c) Before launching any raid/search, definite information about the activity to be obtained from the local civil authorities.
(d) As far as possible co-opt representative of local civil administration during the raid.
2. Action during Operation.
(a) In case of necessity of opening fire and using any force against the suspect or any person acting in contravention to law and order, ascertain first that it is essential for maintenance of public order. Open fire only after due warning.
(b) Arrest only those who have committed cognizable offence or who are about to commit cognizable offence or against whom a reasonable ground exists to prove that they have committed or are about to commit cognizable offence.
(c) Ensure that troops under command do not harass innocent people destroy property of the public or unnecessarily enter into the house/ dwelling of people not connected with any unlawful activities.
(d) Ensure that women are not searched/arrested without the presence of female police. In fact women should be searched by female police only.
3. Action after Operation.
(a) After arrest prepare a list of the persons so arrested.
(b) Handover the arrested persons to the nearest Police Station with least possible delay.
(c) While handing over to the police a report should accompany with detailed circumstances occasioning the arrest.
(d) Every delay in handing over the suspects to the police must be justified and should be reasonable depending upon the place, time of arrest and the terrain in which such person has been arrested. Least possible delay may be 2-3 hours extendable to 24 hours or so depending upon a particular case.
(e) After raid make out a list of all arms, ammunition or any other incriminating material/document taken into possession.
(f) All such arms, ammunition, stores etc. should be handed over to the Police Station alongwith the seizure memo.
(g) Obtain receipt of persons and arms/ammunition, stores etc. so handed over to the police.
(h) Make record of the area where operation is launched having the date and time and the persons participating in such raid.
(i) Make a record of the commander and other officer/JCOs/NCOs forming part of such force.
(k) Ensure medical relief to any person injured during the encounter, if any person dies in the encounter his dead body be handed over immediately to the police alongwith the details leading to such death.
4. Dealing with Civil Court.
(a) Directions of the High Court/Supreme Court should be promptly attended to.
(b) Whenever summoned by the courts, decorum of the court must be maintained and proper respect paid.
(c) Answer questions of the court politely and with dignity.
(d) Maintain detailed record of the entire operation correctly and explicitly.
Don'ts
1. Do not keep a person under custody for any period longer than the bare necessity for handing over to the nearest Police Station.
2. Do not use any force after having arrested a person except when he is trying to escape.
3. Do not use third degree methods to extract information or to extract confession or other involvement in unlawful activities.
4. After arrest of a person by the member of the Armed forces, he shall not be interrogated by the member of the Armed forces.
5. Do not release the person directly after apprehending on your own. If any person is to be released, he must be released through civil authorities.
6. Do not temper with official records.
7. The Armed Forces shall not take back a person after he is handed over to civil police."
59. The instructions in the List of "Do's and Don'ts" which must be followed while providing aid to the civil authority are as under :-
"LIST OF DO'S AND DON'TS WHILE PROVIDING AID TO CIVIL AUTHORITY.
DO'S
1. Act in closest possible communication with civil authorities throughout.
2. Maintain inter-communication if possible by telephone/radio.
3. Get the permission/requisition from the Magistrate when present.
4. Use the little force and do as little injury to person and property as may be consistent with attainment of objective in view.
5. In case you decide to open fire :-
(a) Give warning in local language that fire will be effective.
(b) Attract attention before firing by bugle or other means.
(c) Distribute your men in fire units with specified Commanders.
(d) Control fire by issuing personal orders.
(e) Note number of rounds fired.
(f) Aim at the front of crowd actually rioting or inciting to riot or at conspicuous ring leaders, i.e., do not fire into the thick of the crowd at the back.
(g)Aim low and short for effect.
(h) Keep Light Machine Gun and Medium Gun in reserve.
(i) Cease firing immediately once the object has been attained,
(j) Take immediate steps to secure wounded.
6. Maintain cordial relations with civilian authorities and Para Military Forces.
7. Ensure high standard of discipline.
Don'ts
8. Do not use excessive force.
9. Do not get involved in hand to hand struggle with the mob.
10. Do not ill treat any one, in particular, women and children.
11. No harassment of civilians.
12. No torture.
13. No communal bias while dealing with civilians.
14. No meddling in civilian administration affairs.
15. No military disgrace by loss/surrender of weapons.
16. Do not accept presents, donations and rewards.
17. Avoid indiscriminate firing."
The Supreme Court of India refused to quash and set aside the AFSPA, 1958, but has made the draconian law a little more humane and the same is to be followed to the teeth. Any law abiding citizen will not try to speed off to avoid vehicle checking. Once a civilian has identified himself and there is no specific intelligence report of any criminal activity against the person, there should no harassment whatsoever against such individual(s). As stated above, the presence of armed personnel stopping vehicles on the road itself is annoying for any peace loving citizen. For the Indian Army, the action under AFSPA is to strictly follow the direction of the Supreme Court and for the Police, it is the Police Handbook. The higher ups must take note to educate or the acts under the protection of clouded impunity shall lead to huge embarrassment before the Court of law. Nobody is above the law!
