By Benjamin Lyngdoh
The saying ‘one man’s terrorist is another man’s hero’ is argued in many quarters as the genesis of terrorism. Along with being catchy and crisp, in a nutshell it underlines as to why we have so much of terrorism the world over. Although terrorism is a crime it falls in two categories – firstly, those who die as of the act; secondly, those who surrender at the opportune time. While surrendering is a welcome step, a surrendered militant’s crimes cannot be so easily condoned. However, the events of recent years (both under the erstwhile Congress-led MUA and now the NPP-led governments) has set in motion a disturbing trend. Somehow, the surrendered militants are pardoned of all their wrongdoings without any legal charges and fair trial for their past unlawful activities. This article is not purely with reference to Mr C Thangkhiew (former general secretary, HNLC) or Bobby Marwein (Commander-in-Chief, HNLC) if at all, he too decides to surrender; rather it is a reflection (across HNLC, GNLA and others) upon this dangerous precedent that we are currently witnessing. Accordingly, I place the following pointers –
Firstly, it is important to lay the framework for defining ‘terrorism’ under The Unlawful Activities (Prevention) Amendment Act, 2008. This provides a valid and reliable basis for arguments on the current issue of (so called) surrender of militants. Under the said Act, terrorism is defined as ‘any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country’. A terrorist is also one who ‘overawes by means of criminal force or the show of criminal force, kidnaps or abducts any person and threatens to kill or injure such person.’ In addition, without going into the dire punishments and penalties for intimidation and murder, the said Act provides that for being a member of an unlawful association (The Unlawful Activities (Prevention) Tribunal banned the HNLC for a further period of five years in 2015) an individual or group ‘shall be punished with imprisonment for a term which may extend to two years and shall also be liable to a fine’. Against this backdrop, it is explicitly clear that these surrendered militants are to be booked under some section(s) or the other. However, in spite of all these valid legal clauses why is the state government dodging this issue and bending over backwards to appease the militants? If anything, this matter has thrown our government(s) in very poor light and made them appear pliant.
Secondly, although the state government does not distinguish between ‘surrender’ and ‘negotiation’; the fact is that there is a stark difference between the two. The term ‘surrender’ implies that a militant(s) submits himself to the government of the day without any effort of reconciliation by the said government. That way, surrender would mean that the militant(s) would be subject to action and penalty as per the rule of law (example – just like a petty criminal surrendering to a local police station). On the other hand, ‘negotiation’ implies that the militant(s) have come ‘over ground’ on the basis of efforts and the promise of incentives shown by the government. Hence keeping in perspective the intents of the government it may or may not press charges against the militant(s) in question. However, if there is a negotiation (as in the case of Mr. C. Thangkhiew), then the context of ‘collective bargaining’ comes in. The government cannot take such a lenient view of the past unlawful activities; rather, it has to put its foot down and be adamant on pressing charges at some grave criminal acts against the militant(s). As such, the concept of ‘surrender’ and ‘negotiation’ are different; but both lead to penalty for past unlawful activities one way or the other. Disturbingly, by not distinguishing between the two the state government is taking advantage of a loophole and trying to get away on the basis of a technicality. Critically, Mr. C. Thangkhiew (and all the others so far) are not in actuality ‘surrendered’ militants; rather they are ‘negotiated’ militants who have come over-ground. Hence, the state government is at fault by not engaging in ‘collective bargaining’ towards imposing some form of penalty as a condition.
Thirdly, this issue of pressing charges against such negotiated militants is a dicey one. In reality, the state is divided on this. While one group believes on punishment irrespective of surrender/negotiation; the other believes on ‘atonement through complete condoning’ of past activities. Keeping in mind the division in perception one cannot help but wonder on the middle way out. Alas! We have one and it is the age old tried penalty termed as ‘community service’. It is basically an alternative sentencing or non-custodial sentence to punish a defendant apart from custodial sentence or capital punishment. This may take the form of unpaid services at schools, hospitals, charitable institutions, house arrest, suspended sentence and so forth. In addition, it also includes ‘tendering an unconditional apology to the victims’. True, ‘community service’ is not a British concept hence, it is not an Indian concept (as the Indian legal system is derived from the British); rather, it is American. As such, ‘community service’ as a penalty is not popular in India. Moreover, it is primarily used as punishment for petty crimes. Nonetheless, it is better to have some form of penalty rather than a generl amnesty. To this end, if ‘community service’ seems plausible as penalty for these negotiated militant(s); then so be it! Moreover it is the duty of the legislature to pass a law laying down the penalties and leave it to the judiciary to award the penalty. Significantly, ‘law and order’ is a state subject; but will the Legislature act on it? In addition, under Article 142 of the Constitution of India ‘the court may give any order that it feels is essential for justice to prevail’ (example – Sanjeev Nanda who was convicted in the BMW hit-and-run case was asked to do two years community service in 2012). That way ‘community service’ is indeed one of the possible middle way punishments for these militants.
Lastly and in relation to the above, these people are not heroes. It is time to stop treating them as such. Ironically we are now entering into the theatre of the absurd; whereby Mr Thangkhiew is on the brink of being appointed as the ‘negotiator’ between the HNLC and the state government. That makes him an ‘agent’ marketing the terms of the HNLC to the government and vice versa. As a result of all this, we are again likely to see no charges and no possible trials. Finally, to the Conrad Sangma Government which says that ‘the youth will never take to the path of militancy when they come to know that nothing was achieved by those leaders who walked that path and found it a futile one as is visible from the cases of surrendered members,’ Sir, if there are such youth (as per the distorted perception of the state government) then please know that on the other side of the same coin there are youth (disillusioned and depressed) who are watching these developments with keen interest. To this end, it is sad and scary to note that Meghalaya will not be far from experiencing another cycle of militancy before long!
(The Author teaches at NEHU)