Source: INDIAN EXPRESS

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Context:

• The recent incident in Nagaland, where security forces opened fire on civilians, has reignited the debate on the process for prosecuting armed forces personnel in India.

Details:

Background: The Nagaland Incident

• On December 4, 2021, an operation by the Army’s 21 Para (Special Forces) was launched in Nagaland’s Oting based on intelligence inputs regarding militant movements.
• This operation, resulted in the deaths of 13 civilians due to a botched attempt to ambush militants, followed by a clash between villagers and Army personnel, which led to further casualties.
• Despite the Nagaland government’s claim of having clinching evidence against the Army personnel involved, the Centre refused to grant sanction for their prosecution.
• This decision has been challenged in the Supreme Court, which has issued notices to the Centre and the Ministry of Defence for their response.

AFSPA and Sanction for Prosecution

• The AFSPA grants special powers to the armed forces in "disturbed areas," enabling them to operate with a certain degree of immunity from prosecution.
• Under Section 6 of AFSPA, no legal proceeding can be initiated against personnel acting under this Act without prior sanction from the Central Government.
• This provision is meant to protect armed forces personnel from frivolous litigation and ensure that they can perform their duties without fear of legal repercussions. However, this has often been criticized for leading to impunity and human rights violations.

READ IN DETAIL- About the Armed Forces (Special Powers) Act (AFSPA), 1958

Historical Context of Sanction Provisions

• Historically, the Centre has granted prosecution sanction in select cases where it was evident that armed forces personnel engaged in unwarranted atrocities or exceeded their mandate.
• The principle here is to maintain accountability while recognizing the challenging circumstances under which these forces operate.

Case of Nagaland’s Mon District

In the Mon incident, the Nagaland government argues that there is strong evidence of misconduct by the Army personnel.

The refusal to grant prosecution sanction has therefore raised questions about the transparency and accountability of the armed forces under AFSPA.

The Supreme Court’s involvement indicates a significant legal and moral inquiry into the limits of operational immunity provided by AFSPA.

Legal Framework Governing Prosecution:

Legal Provision	Description	Key Features
Armed Forces (Special Powers) Act (AFSPA)	Grants special powers to the armed forces in "disturbed areas" declared by the government.	Section 6: Immunity from prosecution, suit, or legal proceedings except with previous sanction from the Central Government.
Code of Criminal Procedure (CrPC)	Governs the procedure for prosecution of public servants, including armed forces personnel.	Section 197: Requires prior sanction from the Central or State Government to prosecute any public servant for actions purportedly taken in the discharge of their official duties.
Military Law (Army Act, Navy Act, Air Force Act)	Provides a framework for internal disciplinary mechanisms within the military.	Offences committed by personnel can be tried under court-martial procedures, operating parallel to civilian judicial processes.

The rationale behind prior sanction stems from several factors:

• Maintaining Operational Effectiveness: Granting immunity from routine legal proceedings allows the armed forces to focus on operational duties without fear of frivolous lawsuits.
• Command Responsibility: Disciplinary action within the military structure ensures swift and appropriate punishment when necessary.
• National Security Considerations: Disclosing sensitive operational details during civilian trials might jeopardize national security.

However, concerns regarding the current system include:

• Lack of Transparency: The process for granting sanction is opaque, leading to accusations of bias and a sense of impunity.
• Delayed Justice: Obtaining central government sanction can be time-consuming, delaying justice for victims of alleged misconduct.
• Erosion of Public Trust: Lack of accountability can strain the relationship between the armed forces and the civilian population.

Possible Reforms:

• A Dedicated Investigative Body: An independent body could investigate allegations against armed forces personnel and recommend prosecution.
• Time-Bound Sanction Process: Setting a timeframe for the government to decide on sanction requests could expedite the process.
• Differentiating Offenses: Categorizing offenses based on severity might allow quicker prosecution in less serious cases.

Conclusion:

• One potential way forward could be to establish an independent review mechanism that evaluates cases where prosecution sanction is sought, ensuring transparency and accountability while respecting the operational complexities faced by armed forces personnel.
• This could help in restoring public confidence and ensuring that the sanctity of human rights is maintained alongside operational imperatives.
• While AFSPA remains a crucial tool for national security, its application must be continually reassessed to ensure it does not become a shield for impunity.
• The balance between security and justice is delicate, and the Nagaland incident underscores the need for a nuanced approach to legal and moral accountability in conflict zones.

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Source:

https://indianexpress.com/article/explained/everyday-explainers/nagaland-mon-sc-prosecute-army-9466454/

PRACTICE QUESTION Discuss the legal framework governing the sanction to prosecute armed forces personnel in India. In light of the recent Nagaland incident, critically analyze the balance between operational immunity and accountability. Suggest possible reforms to address concerns related to transparency and justice.