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INDIA: BSF strikes again, this time a farmer

January 26, 2012

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-007-2012

26 January 2012
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INDIA: BSF strikes again, this time a farmer

ISSUES: Torture; impunity; rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM concerning yet another case of torture by the Border Security Force (BSF), stationed along the Indo-Bangladesh border. In this case too, it is alleged that the BSF has tortured a civilian. The victim in the case is Mr. Tabibar Molla, is a resident of North 24 Parganas district of West Bengal and a farmer. It is alleged that the BSF tortured the victim while he was on his way to his farm. The victim suffered serious injuries in the incident.

CASE NARRATIVE:

The incident happened on 13 December 2011 at about 1pm. Four BSF officers stationed at outpost number three, under the jurisdiction of Tarali border outpost near Tarali FP school road crossing stopped Molla while he was on his way to his farm. The officers accused Molla of pelting stones on the previous night and prevented him from leaving. Molla protested and claimed that the accusation is wrong.

The officers however refused to agree. They then detained Molla and started assaulting him with wooden baton and with rifle butts. Molla suffered serious injuries on his head, ears, legs and on his backside in the incident. The injuries caused blunt marks from trauma on Molla.

Molla shouted for help. Some persons in the locality heard Molla's cry for help and arrived at the scene. They helped Molla to be rescued from the BSF officers. They helped Molla to be taken to a medical practitioner on the same day. It is alleged that the BSF officers also shouted filth at Molla in Hindi, while they assaulted him.

Molla lodged a written complaint against the BSF officers at the office of the Sub-Divisional Police Officer, Basirhat, on 16 December 2011. It is alleged that the officer did not take any action till date despite receiving the complaint.

Molla alleges that persons namely Mr. Bapi Mondal, Mr. Ainuddin Sardar and Ms Hamida Bibi were witnesses of the incident. Molla also claims that it is these people who rescued him from the BSF. Molla has narrated this in his complaint to the Sub-Divisional Police Officer. Molla has also provided to the officer adequate identification details of the BSF officers who allegedly assaulted him. Molla has identified one officer having a nametag bearing the name 'Prem Singh'.

ADDITIONAL INFORMATION

This is yet another example of the atrocities committed by the BSF. The AHRC and MASUM together have reported about 800 cases of custodial violence committed by the BSF during the past eight years. All these cases with narrative details of the incident and that of the persons involved in the incident have been transmitted to the authorities in India calling for actions. The AHRC has noted that the BSF enjoys absolute impunity in India, a fact reiterated by the lack of criminal as well as disciplinary actions against the officers involved in each case. At the very minimum, a statutory requirement of investigating a complaint and recording the statements of the victim/s as well as the witness/s is not usually complied by the Indian authorities, despite the fact that each case involves a clear breach of law, often punishable under the Indian Penal Code, 1860.

The Border Security Act, 1968 and its Rules 1969, regulates the conduct of the BSF. According to Section 28 (a) of the Act, any person unnecessarily detains a person in arrest or confinement without bringing him to trial, or fails to bring his case before the proper authority for investigation … shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to one year or such less punishment as is in this Act mentioned. Section 40 of the Act provides that any person subject to the act who is guilty of any act or omission which, though not specified in the 2004 Act, is prejudicial to good order and discipline of the force shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned. Section 41 (f) of the Act mandates that a BSF officer who commits any offence against the property or person of any inhabitant of, or resident in, the country in which he is serving to be punished with seven years of imprisonment.

The Indian Penal Code, 1860 provides punishment for voluntarily causing hurt or injuries to a person. Section 326 of the Code prescribes punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means. Section 357 mandates one year imprisonment for a person who attempts to wrongfully confine a person. Section 307 mandates punishment for a term of ten years for a person who attempts to murder another person. In addition, Article 21 of the Constitution guarantees protection of life and personal liberty of every citizen.

The Supreme Court of India in Shivprasad Pandey v Central Bureau of Investigation, New Delhi, reported in 2003 All India Reporter 1974 has criticized the BSF for the torture committed by them and has convicted officers found guilty of the offence.

Had the BSF been operating in compliance with the Border Security Force Act, 1968 and its Rules 1969, such incidents would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the BSF against unarmed civilians and other forms of corruption and crimes committed by the BSF with impunity is a threat to the border security of the nation. Such a BSF is a threat to the entire country.

SUGGESTED ACTION:
Please write to the authorities listed below asking for their urgent intervention in this case. The AHRC is also writing a separate letter to the UN Special Rapporteur on Torture calling for an intervention in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear __________

INDIA: Kindly investigate the case of torture committed by the BSF at Tarali BSF border outpost

Name of victims: Mr. Tabibar Molla, son of late Sahajaddin Molla, aged about 38 years, residing at Tarali village, under the jurisdiction of Swarupnagar, North 24 Parganas district, West Bengal state, India
Names of alleged perpetrators: BSF officers on duty on 13 December 2011 at about 1pm at the Border Security Force Outpost number three under the jurisdiction of Tarali BSF border outpost situated near Tarali FP school road crossing, including one officer having his name plate reading 'Prem Singh'
Date of incident: 13 December 2011
Place of incident: BSF Outpost number three under the jurisdiction of Tarali BSF border outpost situated near Tarali FP school road crossing, North 24 Parganas district, West Bengal

I am writing to express concern regarding yet another incident of torture reported by the BSF from the Indo-Bangladesh border in West Bengal state, India.

The incident reportedly happened on 13 December 2011 at about 1pm. Four BSF officers stationed at outpost number three, under the jurisdiction of Tarali border outpost near Tarali FP school road crossing stopped Molla while he was on his way to his farm. The officers accused Molla of pelting stones on the previous night and prevented him from leaving. Molla protested and claimed that the accusation is wrong.

I am informed that the officers however refused to agree. They then detained Molla and started assaulting him with wooden baton and with rifle butts. Molla suffered serious injuries on his head, ears, legs and on his backside in the incident. The injuries caused blunt marks from trauma on Molla.

It is reported that at that time Molla shouted for help. Some persons in the locality heard Molla's cry for help and arrived at the scene. They helped Molla to be rescued from the BSF officers. They helped Molla to be taken to a medical practitioner on the same day. It is alleged that the BSF officers also shouted filth at Molla in Hindi, while they assaulted him.

It is alleged that Molla has lodged a written complaint against the BSF officers at the office of the Sub-Divisional Police Officer, Basirhat, on 16 December 2011. It is alleged that the officer did not take any action till date despite receiving the complaint.

I am informed that Molla alleges that persons namely Mr. Bapi Mondal, Mr. Ainuddin Sardar and Ms Hamida Bibi were witnesses of the incident. Molla also claims that it is these people who rescued him from the BSF. Molla has narrated this in his complaint to the Sub-Divisional Police Officer. Molla has also provided to the officer adequate identification details of the BSF officers who allegedly assaulted him. Molla has identified one officer having a nametag bearing the name 'Prem Singh'.

I am concerned about the repeated incidents of torture and other forms of violence committed by the BSF in India, in particular by those officers stationed along the Indo-Bangladesh border. This case is unfortunately yet another example. I am informed that the AHRC and MASUM together have reported about 800 cases of custodial violence committed by the BSF during the past eight years. All these cases with narrative details of the incident and that of the persons involved in the incident have been transmitted to the authorities in India calling for actions. I am also informed that the BSF enjoys absolute impunity in India, a fact reiterated by the lack of criminal as well as disciplinary actions against the officers involved in criminal cases thus far brought to your information. I am informed that at the very minimum, a statutory requirement of investigating a complaint and recording the statements of the victim/s as well as the witness/s is not usually complied by the Indian authorities, despite the fact that each case involves a clear breach of law, often punishable under the Indian Penal Code, 1860. I hope the fate of this complaint too will not be the same.

The Border Security Act, 1968 and its Rules 1969, regulates the conduct of the BSF. According to Section 28 (a) of the Act, any person unnecessarily detains a person in arrest or confinement without bringing him to trial, or fails to bring his case before the proper authority for investigation … shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to one year or such less punishment as is in this Act mentioned. Section 40 of the Act provides that any person subject to the act who is guilty of any act or omission which, though not specified in the 2004 Act, is prejudicial to good order and discipline of the force shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned. Section 41 (f) of the Act mandates that a BSF officer who commits any offence against the property or person of any inhabitant of, or resident in, the country in which he is serving to be punished with seven years of imprisonment.

The Indian Penal Code, 1860 provides punishment for voluntarily causing hurt or injuries to a person. Section 326 of the Code prescribes punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means. Section 357 mandates one year imprisonment for a person who attempts to wrongfully confine a person. Section 307 mandates punishment for a term of ten years for a person who attempts to murder another person. In addition, Article 21 of the Constitution guarantees protection of life and personal liberty of every citizen.

The Supreme Court of India in Shivprasad Pandey v Central Bureau of Investigation, New Delhi, reported in 2003 All India Reporter 1974 and in The Commandant, 68 BN BSF Gakulankar v Shri Arjundas reported in 2006 (7) Supplement Supreme Court Reporter p. 251 has criticized the BSF for the torture committed by them and has convicted officers found guilty of the offence.

Had the BSF been operating in compliance with the Border Security Force Act, 1968 and its Rules 1969, such incidents would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the BSF against unarmed civilians and other forms of corruption and crimes committed by the BSF with impunity is a threat to the border security of the nation. Such a BSF is a threat to the entire country.

I therefore request you:

1. That the complaints of torture in this case be investigated by an independent agency;
2. That the statements of the witnesses to the incident recorded immediately by a judicial officer;
3. The alleged officers placed on immediate suspension and their case immediately referred to the BSF court or to a civilian court;
4. Should the case be adjudicated by a BSF court, the victim and the witnesses adequately represented in such proceedings by a lawyer of their choice;
5. That victim and the witnesses in the case provided immediate protection;
6. The entire investigation supervised by a judicial officer and the victim or a member of their family is informed about the progress of the investigation;
7. The union government pay an interim compensation to the victim pending the final disposal of their complaints by a court of law.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Mr. U. K. Bansal (IPS)
Director General - Border Security Force
Government of India
Block 10, CGO Complex
Lodhi Road, New Delhi -03
INDIA
Fax: +91 11 24360016
E-mail: probsf@yahoo.com, bsfhq@bsf.nic.in, bsf_hq@hub.nic.in, bsf_hq@bsf.delhi.nic.in

2. Director General & Inspector General of Police
Government of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: dgp_westbengal@gmail.com

3. Chief Secretary
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: chiefsec@wb.gov.in

4. Additional Chief Secretary (Home)
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Email: sechome@wb.gov.in

5. Ms. Mamata Banerjee
Chief Minister
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@nic.in

6. Mr. P. Chidambaram
Home Minister
Government of India
Ministry of Home Affairs
North Block, New Delhi 110003
INDIA
Fax: + 91 11 23093750 / 23092763
Email: hm@nic.in

7. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@nic.in

Thank you
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)


 

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-007-2012
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.