INDIA/BANGLADESH: Illegal detention of Indian nationals and their young grandson in Bangladesh

May 18, 2012

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-082-2012

18 May 2012
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INDIA/BANGLADESH: Illegal detention of Indian nationals and their young grandson in Bangladesh

ISSUES: Illegal detention; rights of the child; border security forces; transnational issues
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM concerning a case of the extended and illegal detention of three Indian nationals in Bangladesh past the completion of the jail term passed by the Senior Judicial Magistrate of Kushtia, who had also ordered their release and repatriation upon fulfilment of that sentence. This is also despite the fact that the fine of Taka 500.00 has already been paid in full on the victims' behalf.

Ms. Kajalrekha Bibi, the daughter-in-law of Mr Hachimuddin Sheikh and Ms Mafroza Khatun and the mother of Master Ariful Sheikh, has already lodged reports and appeals before the relevant Indian authorities and submitted the relevant supporting documents to facilitate the return of her family members to India, yet no action has been taken to ensure their safe and expedient repatriation. Mr H. Sheikh, Ms M. Khatun and their grandson M. A. Sheikh face an indefinite stay in jail due to bureaucratic indifference to their plight. Official agreement that the three be repatriated without further delay has been further frustrated by the non-cooperation of Border Security Forces (BSF) to receive them from the authorities in Bangladesh.

These three forgotten Indian citizens have thus been left to languish in Kushtia Jail in Bangladesh, separated from their family, community and country. Both India's and Bangladesh's legal mechanisms have failed the family by permitting their just detention but being subsequently incapable of their equally just repatriation following the completion of their jail term and full payment of the fine. The individuals' constitutional and human rights are reliant on their quick and safe return to India – we therefore urge you to write in to the relevant authorities to take all necessary actions to bring justice to these individuals.

CASE NARRATIVE:

An inquiry undertaken by MASUM reveals the following facts.

According to the statement (dated 18 April 2011) given by the Chairman of No. 8 Piyarpur Union Parishad of Daulatpur, Kushtia, Mr Mohammad Jaharul Karim Biswas, Mr Hachimuddin Sheikh, Ms Mafroza Khatun and their grandson Master Ariful Sheikh had been visiting Mr Hachimuddin Sheikh's ailing mother in Bangladesh in April 2011 when they were apprehended for not possessing passports with the required visas for entry into the territory. They were charged under Section 4 of The Control of Entry Act, 1952 in Daulatpur Police Station Case No. 16/11 dated 15 April 2011. Both Mr Hachimuddin Sheikh and Ms Mafroza Khatun admitted their guilt before the trial magistrate and were fined Taka 500.00 each in Bangladesh currency. Because they could not pay the fine, they were to be imprisoned for two months, a term passed by the trial magistrate on 12 May 2011 in G.R. No. 156/2011, who had also ordered for their repatriation upon fulfillment of the sentence. The jail term was ordered in-lieu of the fine; the fine was, however, paid in addition to the jail term. This already suggests a loophole in the system that may be exploited by corrupt officers.

At the time of Mr Hachimuddin Sheikh and Ms Mafroza Khatun were charged, Master Ariful Sheikh was approximately four and a half years old (date of birth according to the birth certificate issued by Berhampore Municipality is 28 December 2006) – clearly a minor and thus protected under the Convention of the Rights of the Child that both India (since 1992) and Bangladesh (since 1990) are signatories to. Not only was M. A. Sheikh illegally detained along with his grandparents (violation of his right as expressly stated in the Convention on the Rights of the Child (CRC)), but following the completion of their jail term, when both grandparents continued to be illegally detained, there was no special provision for him to be returned to his parents in India. M. A. Sheikh was not given proper protection particular to his status as a minor (Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR)).

Ms Kajalrekha Bibi, the daughter-in-law of Mr H. Sheikh and Ms M. Khutan and the mother of M. A. Sheikh, lodged complaints/appeals before the Additional Superintendent of Police (DIB of Murshidabad on 30 May 2011, the Honorable Chief Minister of West Bengal and the High Commissioner of Bangladesh in India on 9 July 2011, the Honorable Governor of West Bengal on 27 October 2011, the District Magistrate of Murshidabad and the Officer-in-Charge (Judicial Munsikhana) under District Magistrate of Murshidabad on 25 October 2011 with supporting documents for the immediate repatriation of her parents-in-law and young son to India, but to no avail. While Ms K. Bibi has appealed to all the relevant authorities, the bureaucracy has failed to respond to those reports and to coordinate with the authorities in Bangladesh and the BSF for the family's immediate return to India.

The above case highlights several systemic problems in the necessarily transnational administration of Bangladesh and India, particularly in cases where familial relations span both territories and where individuals are simply not aware of certain laws:

1. The lack of effort on the part of the government to raise public awareness concerning important customs requirements (e.g. applying for a visa prior to crossing the border). It has been sixty years since Bangladesh's 1952 Control of Entry has been introduced, yet many locals living near the border are not informed of such requirements and are unnecessarily detained in Bangladesh. This is as unnecessarily disruptive and distressing for the families and individuals involved.
2. The apathy and unresponsiveness of authorities legally and morally responsible for the interests of their citizens/constituents;
3. An ineffectual bureaucracy that has not managed to even move the case in a promising direction (towards the release of the three Indian nationals from Bangladesh), much less rectify more persistent and troubling structural faults, one of which is:
4. The unwillingness or inability of state authorities to control, communicate effectively with or discipline the Border Security Forces.

Although the Commonwealth Human Rights Initiative (CHRI) in India and the Bangladesh Legal Aid and Services Trust (BLAST) in Bangladesh have been following up on this case with the Ministries of Home Affairs, External Affairs and High Commissions of both countries as well as the prison department of Bangladesh, and although there has been formal agreement to repatriate the victims without any more delays, the non-cooperation of the BSF has introduced further obstacles and led to the victims continued detention in Bangladesh territory. While it is acknowledged that some time is required to complete the formalities of their release, Kushtia Jail authorities and the relevant government departments must continue to actively pursue the resolution of BSF's non-compliance to central authority in order to secure the earliest possible release of the victims.

Without state intervention, Mr Hachimuddin Sheikh, his wife, Ms Mafroza Khatun, and their grandson, M. A. Sheikh, face an illegally indefinite period of detention in Bangladesh, separated from their family and community. We hope to galvanise both governments through your written appeals to take appropriate steps towards the goal of reuniting the family in India and to begin a proper investigation into the faulty chain of command that has besieged the relationship between the BSF and central authorities.

ADDITIONAL INFORMATION:

Mr H Sheikh, Ms M. Khatun and M. A. Sheikh have now been detained at least six times as long as their initial jail term for a relatively minor and probably unconscious transgression. This constitutes a violation of their rights as laid out in the ICCPR, which India acceded to in 1979 and to which Bangladesh also became a signatory in 2000. Having fulfilled their jail term (and having paid an unnecessary fine), Mr H Sheikh, Ms M Khatun and M. A. Sheikh are legally free persons and should be permitted to leave Bangladesh and enter India according to Article 12(2) and 12(4) – their return to India has its legal justification in the ICCPR and in India's constitution, and should therefore not be contingent upon the BSF's reception. Their continued detention in Kushtia Jail in Bangladesh violates their right to liberty, particularly freedom from arbitrary and extrajudicial detention (Article 9(1) of the ICCPR). Furthermore, being victims of unlawful detention, Mr H. Sheikh and Ms M. Khatun are now eligible for “an enforceable right to compensation” according to Article 9(5) of the ICCPR – and it is the states of India and Bangladesh are to bear this responsibility to return the family and recompense them, as they are the parties to the ICCPR.

Similarly, the constitution of India does not permit for any person to “be subjected to a penalty greater than that which might be inflicted under the law” or “be deprived of…personal liberty except according to procedure established by law” (Article 20(1) and Article 21 of the Indian Constitution). By not receiving Mr H. Sheikh, Ms M. Khatun and M. A. Sheikh back into their country of origin, the Indian authorities have necessarily failed to uphold their constitutional and legal duties to their citizens.

Finally, M. A. Sheikh's rights as a minor have been contravened through his detention with his adult grandparents when he should have been immediately repatriated to India and reunited with his parents, if not released together with his grandparents upon the completion of their jail term. Articles 2(2), 3(1), 3(3). 7(1), 9(1), 10(1), 20(1), 27(1), 27(3), 28(1), 37(b-d) of the CRC clearly describe that every State, and particularly signatories to the CRC, is expected to protect the best interests and normal development of the child and to not punish the minor for the status or activities of the child's parents or guardians. The protracted period of separation from his biological parents, inadequate safety and health standards in prison for the child, unsuitability of the staff for the supervision and the environment for the development of the child, the lack of education for over twelve months of the child's most fertile mental receptiveness, the arbitrariness and unlawfulness of the child's continued detention and the lack of prompt access to legal and other appropriate assistance all constitute violations of M. A. Sheikh's fundamental rights as a child – this is morally and legally unacceptable.

SUGGESTED ACTION:
Please write to the authorities mentioned below demanding an investigation into and a speedy resolution of this case. Mr Hachimuddin Sheikh, his wife Ms Mafroza Khatun and their grandson Master Ariful Sheikh should be repatriated to India at the earliest possible time and reunited with their family. A full inquiry into the reasons preventing their return to India should be undertaken by the Indian central government, which is first and foremost responsible for the welfare and upholding the rights of its citizens and should be able to exercise greater control over organisations such as the BSF.

The AHRC is also writing a separate letters to the Chairpersons of the Committee on the Rights of the Child and of the Working Group on Arbitrary Detention of the UN calling for further intervention in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear __________,

INDIA: Please investigate the illegal detention of three Indian nationals in Bangladesh, two of which have fulfilled their jail terms and one of which is a minor separated from his parents for an extended period of time

Name of victims:
1. Mr Hachimuddin Sheikh, 48-year-old, (s/o late Niyamat Sheikh), voter ID JRG2634863;
2. Ms Mafroza Khatun, 40-year-old, (wife of Mr Hachimuddin Sheikh), voter ID JRG2632743; and
3. Master Ariful Sheikh, five-year-old (grandson of Mr Hachimuddin Sheikh, s/o Shariful Sheikh and Kajalrekha Bibi). Their place of residence is at Gajdharpara village under the jurisdiction of Berhampore Police Station in the Murshidabad district of West Bengal
Date of incident: 15 April 2011 - present
Place of incident: Daulatpur Police Station, Bangladesh

I am writing to express concern regarding a case of illegal detention of three Indian nationals in Kushtia Jail, Bangladesh, past the lawful period of their detention (the sentence passed by the Senior Trial Magistrate was two months in-lieu of a Taka 500.00 fine per adult) since 12 July 2011. The details of the case are as follows:

The victims in this case are Mr Hachimuddin Sheikh, Ms Mafroza Khatun and their five-year-old grandson Master Ariful Sheikh. Their place of residence is Gajdharpara village under the jurisdiction of Berhampore Police Station in the Murshidabad district of West Bengal.

At the time of Mr Hachimuddin Sheikh and Ms Mafroza Khatun were charged, Master Ariful Sheikh was approximately four and a half years old (date of birth according to the birth certificate issued by Berhampore Municipality is 28 December 2006) – clearly a minor and thus protected under the Convention of the Rights of the Child that both India (since 1992) and Bangladesh (since 1990) and signatories to. Not only was M. A. Sheikh illegally detained along with his grandparents (violation of his right as expressly stated in the Convention on the Rights of the Child (CRC)), but following the completion of their jail term, when both grandparents continued to be illegally detained, there was no special provision for him to be returned to his parents in India. M. A. Sheikh was not given proper protection particular to his status as a minor (Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR)).

The above case highlights several systemic problems in necessarily transnational administration of Bangladesh and India, particularly in cases where familial relations span both territories and where individuals are simply not aware of certain laws:

1. The lack of effort on the part of the government to raise public awareness concerning important customs requirements (e.g. applying for a visa prior to crossing the border). It has been sixty years since Bangladesh's 1952 Control of Entry has been introduced, yet many locals living near the border are not informed of such requirements and are unnecessarily detained in Bangladesh. This is as unnecessarily disruptive and distressing for the families and individuals involved.
2. The apathy and unresponsiveness of authorities supposed to look after the interests of their citizens/constituents;
3. An ineffectual bureaucracy that has not managed to even move the case in a promising direction (towards the release of the three Indian nationals from Bangladesh), much less rectify the more persistent and troubling structural faults, one of which is
4. The unwillingness or inability of state authorities to control or discipline the Border Security Forces.

While it is acknowledged that some time is required to complete the formalities of their release, Kushtia Jail authorities and the relevant government departments must also actively pursue the resolution of BSF's non-compliance to central authority and the earliest possible release of the victims.

Without state intervention, Mr Hachimuddin Sheikh, his wife, Ms Mafroza Khatun, and their grandson, M. A. Sheikh, face an illegally indefinite period of detention in Bangladesh, separated from their family and community. We hope to galvanise both governments through your written appeals to take appropriate steps towards the goal of reuniting the family in India and to begin a proper investigation into the faulty chain of command that has dominated the relationship between the BSF and central authorities.

The Border Security Act, 1968 and its Rules 1969, is supposed to regulate the conduct of the BSF; Article 5 of the Act states clearly that “the general superintendence, direction and control of the Force shall vest in and be exercised by the Central Government”. Yet the Indian state has also not proven itself able to manage its own forces if the BSF's non-cooperation can be cited as a reason for the delay in Mr H. Sheikh, Ms M Khatun and M. A. Sheikh's repatriation to India despite the agreement of all relevant authorities at the district and state level. This lack of communication or deliberate disobedience should disquiet state authorities, who have entrusted the BSF with the regulation of its borders and depend upon its allegiance and submission to orders issued by the central authorities.

Finally, M. A. Sheikh's rights as a minor have been contravened through his detention with his adult grandparents when he should have been immediately repatriated to India and reunited with his parents, if not released together with his grandparents upon the completion of their jail term. Articles 2(2), 3(1), 3(3). 7(1), 9(1), 10(1), 20(1), 27(1), 27(3), 28(1) and 37(b-d) of the CRC clearly describe that every State, and particularly signatories to the CRC, is expected to protect the best interests and normal development of the child and to not punish the minor for the status or activities of the child's parents or guardians. The protracted period of separation from his biological parents, inadequate safety and health standards in prison for the child, unsuitability of the staff for the supervision and the environment for the development of the child, the lack of education for over twelve months of the child's most fertile mental receptiveness, the arbitrariness and unlawfulness of the child's continued detention and the lack of prompt access to legal and other appropriate assistance all constitute violations of M. A. Sheikh's fundamental rights as a child – this is morally and legally unacceptable.

I therefore request you that:

1. The complaints and appeals already lodged by Ms Kajalrekha Bibi be properly acknowledged;
2. The central authorities concerned put together a report summarising the action taken thus far to facilitate the repatriation of the victims and their minor grandson to India;
3. The central authorities outline steps they intend to take to render all necessary assistance to Bangladesh's authorities to bring about the three victims' immediate and safe return to India;
4. The central authorities investigate the gaps in communication with the BSF as well as the possibility of deliberate delinquency or disobedience among BSF officials with regards to directions from the Central Government;
5. The central authorities take disciplinary action against those who either directly or indirectly contributed to the delay in bringing the three victims back to India;
6. Compensation be given to the victims and their family for any physical and psychological injury they may have sustained during their illegal detention, as well as the opportunity costs for wages lost through the inability to work during their extended absence from India in accordance with Article 9(5) of the ICCPR, which the Indian state is a signatory to.

Yours sincerely,
_____________

PLEASE SEND YOUR LETTERS TO:

1. Honourable Mrs. Sheikh Hasina
Prime Minister
Government of the People's Republic of Bangladesh
Office of the Prime Minister
Tejgaon, Dhaka
BANGLADESH
Fax: +880 2 811 3244 / 3243 / 1015 / 1490
Tel: +880 2 882 816 079 / 988 8677
E-mail: pm@pmo.gov.bd or psecy@pmo.gov.bd

2. Dr. Dipu Moni MP
Honourable Foreign Minister
Ministry of Foreign Affairs
People's Republic of Bangladesh
Ramna, Dhaka-1000
BANGLADESH
Tel: +880 2 9562852
Fax: +880 2 9562188 +880 2 7171433
Email: minister@mofa.gov.bd

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

4. Director General BSF
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

5. 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

6. Mr. Hassan Mahmud Khandker
Inspector General of Police (IGP)
Bangladesh Police
Police Headquarters'
Fulbaria, Dhaka-1000
BANGLADESH
Fax: +880 2 956 3362 / 956 3363
Tel: +880 2 956 2054 +880 2 956 2054 / +880 2 717 6677 +880 2 717 6677
E-mail: ig@police.gov.bd

7. Chief Secretary
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 2214 4328
Email: chiefsec@wb.gov.in

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

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

10. Superintendent of Police
Murshidabad
BMP Police Office
Berhampore 742101, Murshidabad District
West Bengal State
INDIA

Thank you

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

Document Type :

Urgent Appeal Case

Document ID :

AHRC-UAC-082-2012

Countries :

Bangladesh, India

Issues :

Arbitrary arrest and detention, Child rights, Transitional Justice, Victims assistance & protection

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