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INDIA: Victim of rape and attempted murder held in jail for two years while the perpetrators remain at large

October 7, 2005

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

7 October 2005
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UA-172-2005: INDIA: Victim of rape and attempted murder held in jail for two years while the perpetrators remain at large

INDIA: Gang rape; attempted murder; murder; Border Security Forces; police inaction; legal representation; failure of the courts; rule of law; women’s rights; child rights
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from our local partner organization Manabadhikar Suraksha Mancha (Masum) in West Bengal, India, regarding the gang rape of a woman, the attempted murder of her and one of her daughters, the murder of her husband and other daughter, the complete break-down of the rule of law and the callous and inhuman attitude of the Indian judicial system that has seen the victim and her surviving daughter placed in jail for the past two years.

Joyeeta Bala Das and her family were taken captive in January 2003 by Border Security Forces (BSF) near the India/Bangladesh border. After gang raping Joyeeta Bala Das, the BSF then forced her and her family onto a damaged boat, which upon sinking led to the death of Joyeeta Bala Das’s husband and eldest daughter. Joyeeta Bala Das and her youngest daughter survived and then attempted to seek justice for their perpetrators crimes. However, BSF authorities have continued to maintain that the actions of BSF personnel are an entirely internal matter and therefore they cannot be charged by the police or taken before a court of law. When Joyeeta Bala Das attempted to do so, it was she who was sent to jail, supposedly for ‘safe custody’, while the perpetrators were allowed to remain free.

Joyeeta Bala Das and her four-year-old daughter have now served two and a half years in the Presidency Jail in Kolkata and therefore it is only they who are being punished for the BSF personnel’s actions. That a victim of gang rape and attempted murder who has also lost her husband and daughter can be jailed while the perpetrators remain at large, is a situation that is entirely incomprehensible. That a four-year-old girl could also be imprisoned for this same amount of time, only adds to the tragedy of this case.

We call for your urgent intervention in this matter. Please write immediately to the Governor of West Bengal, Mr. Gopal Krishna Gandhi and other relevant authorities listed below demanding them to take genuine and direct steps to have Joyeeta Bala Das and her daughter removed from jail and their personal security ensured. A full and thorough investigation should be conducted into this matter and charges laid against persons found to have had involvement in the alleged crimes. If found guilty in court, such persons should be fully punished according to law. The investigation should also look into the claim that the Basirhat police never filed charges against the perpetrators, and as to why proper legal representation was never afforded to Joyeeta Bala Das.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:

Name of the victims:
1. Joyeeta Bala Das
2. Her husband (deceased)
3. Her eldest daughter (deceased)
4. Her four-year-old daughter (currently in jail with her mother)
All of Bena village, under the Basirhat police station, 24 Parganas (North) District, West Bengal, India
Name of the alleged perpetrators:
1. Puneet Kumar (Assistant Commandant)
2. Gaya Prasad (Head Constable)
3. G. Birbhan Singh (Head Constable)
4. Kana Singh (Head Constable)
5. Hanuman Thapa (Constable)
All of the Border Security Force at 122 Battalion Outpost under the jurisdiction of the Basirhat police station, 24 Parganas (North) District, West Bengal, India
Place of incident: 122 Battalion, Assistant Commandant’s room
Date of incident: January 2003

Case details:

In January 2003 (actual date not known), Joyeeta Bala Das was returning to her village from Bangladesh, along with her family members, when they were stopped by a Border Security Force (BSF) patrol at the border and taken to the office of the Assistant Battalion Commandant at 122 Battalion Outpost under the jurisdiction of the Basirhat police station, 24 Parganas (North) District, West Bengal. There, in the room of the said officer, Joyeeta Bala Das was allegedly gang raped by the above mentioned perpetrators, as her husband and daughters were forced to watch.

According to the law, Joyeeta Bala Das and her family should have been handed over by the BSF to the local police. The BSF however, did not do this. Instead, Joyeeta Bala Das and her family were held captive by the BSF for several days. They were not charged with any crime, nor were they able to submit their own complaint regarding the gang rape against Joyeeta Bala Das.

The BSF then forced the entire family onto a severely damaged boat and sent them off on the Ichamati river, back in the direction of Bangladesh. However, the boat had not gone far before it began to sink. As each family member had been tied to the boat, with the obvious intention of having them drown, as the boat began to sink the victim’s husband and one daughter could not free themselves and therefore drowned as the boat went down. Joyeeta Bala Das and another of her daughters however, were able to free themselves and swam to the bank of the river.

The following morning local villagers came across the bodies of Joyeeta Bala Das and her youngest daughter. Though they were still alive, both were unconscious. The villagers took the two to a local hospital for medical attention and Joyeeta Bala Das was further examined to medically confirm the rape.

The Basirhat police then apparently attempted to investigate the matter by confronting the five accused BSF personnel. However, the BSF authorities did not allow the police to do this, stating that it was not within their jurisdiction to do so. The matter, they said, would be dealt with by the BSF.

The Criminal Court then ordered the arrest of the accused BSF personnel. But the BSF personnel appealed this decision in the High Court of Calcutta and the appellate court passed an order of stay, which is still in effect today. Likewise, the appeal pending in the High Court has yet to be heard. As a result of this failure by the High Court to properly pursue the matter, the alleged perpetrators remain free and have yet to be formally charged.

Meanwhile Joyeeta Bala Das, immediately following this incident, filed a First Information Report (FIR) with the police. The matter went before the Sub Divisional Judicial Magistrate in Bashirhat where the case was to be heard. However, as the BSF maintain that they are their own authority to investigate such matters, the five accused did not appear before the court. Only Joyeeta Bala Das and her daughter showed, and then, in an absurd change of events, it was they who were sent to the Presidency Jail, supposedly for ‘safe custody’, not the perpetrators. Joyeeta Bala Das and her four-year-old daughter have now been imprisoned in the Presidency Jail since 14 January 2003. In the past two and a half years, she has appeared before the Basirhat Court only twice. Though aware that she and her daughter have been imprisoned unfairly, Joyeeta Bala Das is also too afraid to leave the prison for fear of what the perpetrators may do to them. For this reason, it would seem that Joyeeta Bala Das and her daughter may remain in the Presidency Jail indefinitely.

It has since been discovered that the Bashirhat police station made no charge sheet against the perpetrators. Masum also asked Mr. S.K. Das, the Duty Officer of the Presidency Jail if they could meet with him and the victim, but this request was rejected.

At no point throughout this ordeal was a lawyer assigned to Joyeeta Bala Das. However, the jail department apparently now intends to request the law department to assign a government lawyer to her. Mrs. Bharati Mutsuddi, a member of the West Bengal State Commission for Women has promised that she will look into the matter as it is a gross violation of human rights.

This incident highlights the complete failure of the rule of law in the state of West Bengal and the complete lack of competence and willingness to assist by those authorities invested with the power to protect and seek justice for Joyeeta Bala Das and her family.


SUGGESTED ACTION:

Please write a letter to the Governor of West Bengal, Mr. Gopal Krishna Gandhi and other relevant authorities listed below voicing your strong condemnation at the many injustices in this case.

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Sample letter:

Dear ___________,

INDIA: Victim of rape and attempted murder held in jail for two years while the perpetrators remain at large

Name of the victims:
1. Joyeeta Bala Das
2. Her husband (deceased)
3. Her eldest daughter (deceased)
4. Her four-year-old daughter (currently in jail with her mother)
All of Bena village, under the Basirhat police station, 24 Parganas (North) District, West Bengal, India
Name of the alleged perpetrators:
1. Puneet Kumar (Assistant Commandant)
2. Gaya Prasad (Head Constable)
3. G. Birbhan Singh (Head Constable)
4. Kana Singh (Head Constable)
5. Hanuman Thapa (Constable)
All of the Border Security Force at 122 Battalion Outpost under the jurisdiction of the Basirhat police station, 24 Parganas (North) District, West Bengal, India
Place of incident: 122 Battalion, Assistant Commandant’s room
Date of incident: January 2003

I write to voice my anger and disgust regarding the gang rape of a woman, the attempted murder of her and one of her daughters, the murder of her husband and other daughter and the complete break-down of the rule of law that has seen the victim and her surviving daughter placed in jail for the past two years.

According to the information I have received, Joyeeta Bala Das and her family were taken captive in January 2003 by Border Security Forces (BSF) near the India/Bangladesh border. After gang raping Joyeeta Bala Das, the BSF then forced her and her family onto a damaged boat, which upon sinking led to the death of Joyeeta Bala Das’s husband and eldest daughter. Joyeeta Bala Das and her youngest daughter survived and then attempted to seek justice for their perpetrators crimes. However, BSF authorities have continued to maintain that the actions of BSF personnel are an entirely internal matter and therefore they cannot be charged by the police or taken before a court of law. When Joyeeta Bala Das attempted to do so, it was she who was sent to jail, supposedly for ‘safe custody’, while the perpetrators were allowed to remain free.

Joyeeta Bala Das and her four-year-old daughter have now served two and a half years in the Presidency Jail and therefore it is only they who are being punished for the BSF personnel’s crimes. That a victim of gang rape and attempted murder who has also lost her husband and daughter can be jailed while the perpetrators remain at large, is a situation that is entirely incomprehensible. That a four-year-old girl could also be imprisoned for this same amount of time, only adds to the tragedy of this case.

I trust that you will share in my anger at not only the crimes committed in this case, but in the appalling manner in which they have been dealt. While this woman has had to deal with the trauma of rape and the heartache of losing her loved ones, those responsible for this have been free to get on with their life. Such a situation must not be ignored as this woman’s suffering has already gone on for far too long.

I therefore call on you to use your full authority to help bring justice to Joyeeta Bala Das and her family. Genuine and direct steps must be taken immediately to have Joyeeta Bala Das and her daughter removed from jail and their personal security ensured. A full and thorough investigation should be conducted into this matter and charges laid against persons found to have involvement in the alleged crimes. If found guilty in court, such persons should be fully punished according to law. The investigation should also look into the claim that the Basirhat police never filed charges against the perpetrators, and as to why proper legal representation was never afforded to Joyeeta Bala Das.

Evident from this case is the complete collapse of rule of law within the state of West Bengal.
Also apparent is the complete lack of competence and willingness to assist by those authorities invested with the power to protect and seek justice for Joyeeta Bala Das. That they can stand by and watch an innocent woman and her child linger indefinitely in a jail while their perpetrators enjoy freedom, says little for the respect for human rights by those authorities within West Bengal.

I look to your immediate intervention in this matter.

Yours sincerely,

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PLEASE SEND A LETTER TO:

Mr. Gopal Krishna Gandhi
Governor
The State of West Bengal
Raj Bhaban
Kolkata – 700069
West Bengal
INDIA
Tel: +91 33 2200 0707
Fax: +91 33 2200 2444
Email: govsec@wb.nic.in, governorwb@sancharnet.in

PLEASE SEND COPIES TO:

1. Mr. Subhas Awasthi
Director General and Inspector General of Police
Government of West Bengal
Writers Buildings
Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: padgp@wbpolice.gov.in 

2. Mr. P. R. Ray
Home Secretary
Government of West Bengal
Writers' Buildings
Kolkata - 700001
West Bengal
INDIA
Tel: +91 33 2214 5656
Fax: +91 33 2214 3001
Email: sechome@wb.gov.in 

3. Mr. R. S. Mooshahary
Director General, Border Security Force
Block 10, CGO Complex
Lodhi Road
New Delhi - 110003
INDIA
Tel: + 91 11 24362181
Fax: + 91 11 24360016
bshq@hub.nic.in

4. Mr. Damodar Sarangi
Addl. Director General, BSF (East)
Eastern Region (Kolkata) Office
West Bengal
INDIA
Tel: + 91 33 22830251
Email: bshq@hub.nic.in

5. Justice Shyamal Kumar Sen
Chairperson
West Bengal Human Rights Commission
Bhabani Bhavan, Alipore
Kolkata - 700027
INDIA
Tel: +91 33 4797259 / 5558866
Fax: +91 33 4799633
Email: wbhrc@cal3.vsnl.net.in

6. Mr. Philip Alston
Special Rapporteur on Extra Judicial and arbitrary Executions
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9230
Fax: +41 22 917 9016 (general)

7. Ms. Yakin Erturk
Special Rapporteur on Violence against Women
OHCHR-UNOG
Palais Wilson, 8-14 Avenue de la Paix,
1211 Geneva 10
SWITZERLAND
Fax: 41 22 917 9022

8. Mr. Rudolf Schwenk
State representative - West Bengal
United Nations Children's Fund (Unicef)
219/2, AJC Bose Road
Kolkata 700 017
West Bengal
INDIA
Tel: +91 33 2287.2477, 2467, 2511 or 2287.2758 to 2287.2761
Fax: +91 33 2287.2510
Email: kolkata@unicef.org

9. Mr. Cecelio Adorna
India Country Representative
United Nations Children's Fund (Unicef)
73 Lodi Estate
New Delhi 110 003
INDIA
Tel: +91 11 2469 0401
Email: newdelhi@unicef.org

10. Mr. Jacob Egbert Doek
Chairperson
Committee on the Rights of the Child
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9022


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Case
Document ID :
UA-172-2005
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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.