India: Another cruel and callous attack by Border Security

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-119-2012

Click here to send and Appeal Letter

4 July 2012
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INDIA: Another cruel and callous attack by the Border Security Forces

ISSUES: Torture; inhuman and degrading treatment; caste-based discrimination; impunity; violence; right to life
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM concerning the torture of 35-year-old Mr Sudarshan Mondal on 3 November 2011 in yet another case of Border Security Forces (BSF) brutality in West Bengal, India. Torture, extrajudicial killings, religious discrimination and a culture of impunity are features of everyday life for Indian people living near the country's borders. Such acts violate a human being's inherent and fundamental right to life, liberty and security of person. Such acts are oppressive, patently unjust and contemptible. We urge you to write in to appeal to the relevant authorities to take actions against the BSF personnel responsible for these crimes against humanity. In so doing, we express a hope that, despite the threatening fault lines along the face of India's law enforcement and judiciary, India may yet undertake serious social and institutional reforms that will remove the vestiges of lawlessness in the land and bring her people a lasting peace.

CASE NARRATIVE:

35-year-old Mr Sudarshan Mondal frequently migrated between states to work odd jobs to earn a bit of money to support himself and his family. He had just returned in the last week of October 2011 after six or seven months away from home. Early in the morning on 3 November 2011, Sudarshan travelled to Char Nabipur with his companions with the intention to smuggle a few cattle out of the state. The group were in an open field adjacent to Mahadeb Hat, Ashramtala, Rajanagar when some BSF personnel noticed them. The BSF immediately opened fire and began chasing them. The victim and his friends attempted to flee but were quickly captured. Sudarshan lost his balance and fell. The BSF personnel seized him and began to hit him on the head with a sickle. Sudarshan was wounded and bled so profusely he lost consciousness. His wife, Ms Sonali Mondal, Mr Swapan Mondal and Mr Kalu Mondal (two sons of Mr Tarapada Mondal), Mr Ashok Mondal (son of Mr Upen Mondal) and many others who had witnessed the incident took Sudarshan to Godhanpara Primary Health Care Centre. The doctor who attended Sudarshan at Godhanpara Primary Health Care Centre referred him to Bahrampur New General Hospital because of the severity of the injury, where Sudarshan was advised to go for a Computed Tomography (CT) scan. The CT scan was done on 4 November 2011 at Sudarshan's own expense. Sudarshan was only discharged on 7 November 2011 and still required medical treatment after his discharge.

The BSF has since warned him against registering a complaint with the police. After being counselled by MASUM, Sudarshan finally plucked up the courage to report the incident before the Superintendent of Police of Murshidabad on 18 May 2012, but no action has been taken to this day. Sudarshan has been financially and physically devastated by the incident, and has not been able to work or continue paying for the medical treatment needed to get well.

The above case highlights several systemic failures in the administration of Murshidabad in West Bengal:

1. The lack of transparency and accountability in the operation of the BSF, which breeds impunity;
2. The deviation of paramilitary and law enforcement operations from due process and a complete disregard for the law;
3. The pervasive, excessive and oftentimes senseless use of violence by provincial authorities against individuals within their jurisdiction;
4. The lack of enforcement and/or poor communication by India's central government of basic protocol amongst paramilitary forces such as the BSF;
5. The lack of complete responsiveness of police to aggrieved locals either due to fear of or collusion with the BSF, or an execrable apathy to the plight of the victim and his family

The state has a duty to provide access to suitable employment and to secure the life, liberty and security of persons under its jurisdiction. Sudarshan resorted to the criminal activity of smuggling in order to feed his family. Such desperation reflects poorly on the ability and will of political actors to look after their constituents and the ability of the courts to review unconstitutional practices and protect the fundamental freedoms of the individual against the crushing power of the state. This case of torture also clearly evidences the failure of the Central Government to uphold its international commitments to guarantee and defend human rights; this will have adverse effects on India's global standing.

Without urgent state intervention, the people of Murshidabad, particularly the most vulnerable – the women, the elderly, the widowed, the illiterate, members of minorities and those from outside the dominant caste – face, for the foreseeable future, continued abuse of their freedoms and physical person and no likelihood for justice to be served to those acting with complete impunity. As such, we call on the government of West Bengal and the Central Government to act quickly on the above findings to review laws, policies and institutional structures that have permitted such arbitrary violence to flourish, and to carry out the necessary reform. Only by arresting the continued cheapening of human lives and liberties by paramilitary and law enforcement agencies can India aspire to greater civilisation and a brighter future.

ADDITIONAL INFORMATION:

The Border Security Act, 1968 and its Rules 1969, regulates the conduct of the BSF. 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 of 1860 also 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. In addition, Article 21 of the Constitution guarantees protection of life and personal liberty of every citizen. There is, however, an obvious lack of discipline and commitment to duty, as well as a culture of violence and impunity, within the BSF. This case once again illustrates how the BSF operates, and is permitted to operate, with impunity and in utter defiance of these three legal documents.

The AHRC has documented substantial number of BSF atrocities in India over the years. AHRC and MASUM have reported in detail over 800 cases of custodial violence committed by the BSF over the past eight years and have called for action on the part of the Indian authorities. The AHRC has noted the absolute impunity with which the BSF acts, a fact evidenced by the lack of disciplinary action taken against their criminal offences by the relevant BSF superiors and police personnel. Critically, many of these cases reveal a troubling unresponsiveness, and sometimes complicity, in parts of the legal system to patent injustices committed against individuals by the BSF. Not only is the legitimacy and integrity of the Indian justice system threatened, but so is its border and national security.

Sudarshan and the others who had tried to smuggle cattle with him have, as human beings, a right to life, liberty and personal security (Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights, Article 6 (1), 7, 9 and 10). The BSF jawans not only did not comply with procedures established in the 1973 Criminal Procedure Code, a major law issued by the Central Government. Rather, the BSF fired upon and chased down the men like animals, and did not treat them as born free and equal to themselves in dignity and rights and as being endowed with reason and conscience (Article 1, UDHR). In so doing, the BSF wilfully violated Article 21 of the Indian Constitution, which demands that no person be denied of his life except according to procedure established by law, a transgression that should be swiftly met with by the centre through punitive action against these rogue actors. Instead of ensuring border security and being moral exemplars to the society they are called to protect, the BSF promises the gradual corruption of already weak policing systems, increased lawlessness and an environment of palpable fear that reeks of oppression, past feudalism and neo-colonial structures in contemporary Indian society. The poor discipline among paramilitary forces necessitates authoritative and decisive review, rehabilitation of reform of prevailing institutional structures that have failed to address the systematic abuse of individuals' legal and constitutional rights.

The state has a moral and legal responsibility to provide for its people. India acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1979, yet has not fulfilled its promises to take appropriate steps toward realise individuals' rights to work freely chosen or accepted, to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions and to the enjoyment of the highest attainable standard of physical and mental health (Articles 6, 11 and 12 of the ICESCR). Sudarshan resorted to smuggling because the state had failed to implement measures that would ensure alternative forms of work and income for the individuals affected by caste-based discrimination and low literacy. Such institutional and technocratic deficiencies in fact exacerbate existing hunger and desperation, conditions that contribute to crime and other social ills (in this case, smuggling). These illegal activities are furthermore met, not by a realisation of those original governmental inadequacies but with equally criminal brutality, perpetuated quite ironically by agents of law enforcement. If the government is itself unwilling or unable to transcend this vicious cycle of poverty and violence, it is hardly like individuals like Sudarshan will be able to escape it on their own.

SUGGESTED ACTION:
Please write to the authorities mentioned below demanding an investigation into this case. This incident of torture by BSF personnel must be inquired into and a pattern established if such violent treatment of all suspects is widely practiced. The police must also account for their inaction and negligence that has led to the continued suffering of Sudarshan and his family. Sudarshan, his family and all the witnesses must be provided adequate protection against reprisals by the BSF. The wider community must also be assured that such senseless acts of violence and impunity will not occur again in the future, or, if they do, that they will be capably met by proper checks and balances within the justice system.

The AHRC is also writing separate letters to the UN Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment or Punishment calling for further intervention in this case.

To support this appeal, please click here:

Click here to send and Appeal Letter

SAMPLE LETTER:

Dear __________,

INDIA: Please investigate the torture of Mr Sudarshan Mondal by BSF jawans under the Rajanagar Camp of 91st Battalion of BSF in Murshidabad, West Bengal

Name of victim: Mr Sudarshan Mondal, son of Mr Sitanath Mondal, 35 years old, migrating wage earner, member of Scheduled Caste community and resident of Char Durgapur Village, Harudanga Post Office under the jurisdiction of Raninagar Police Station, Murshidabad
Names of alleged perpetrators: Four uniformed Border Security Force personnel attached to Rajanagar camp of 91st Battalion of Border Security Force
Date of incident: 3 November 2011 around 5am
Place of incident: An open field adjacent to Mahadeb Hat, Ashramtala, Rajanagar

I am writing to express concern regarding yet another case of torture by BSF personnel attached to Char Rajanagar Camp of 91st Battalion of the BSF around 5am on 3 November 2011. The details of the case are as follows:

35-year-old Mr Sudarshan Mondal frequently migrated between states to work odd jobs to earn a bit of money to support himself and his family. He had just returned in the last week of October 2011 after six or seven months away from home. Early in the morning on 3 November 2011, Sudarshan travelled to Char Nabipur with his companions with the intention to smuggle a few cattle out of the state. The group were in an open field adjacent to Mahadeb Hat, Ashramtala, Rajanagar when some BSF personnel noticed them. The BSF immediately opened fire and began chasing them. The victim and his friends attempted to flee but were quickly captured. Sudarshan lost his balance and fell. The BSF personnel seized him and began to hit him on the head with a sickle. Sudarshan was wounded and bled so profusely he lost consciousness. His wife, Ms Sonali Mondal, Mr Swapan Mondal and Mr Kalu Mondal (two sons of Mr Tarapada Mondal), Mr Ashok Mondal (son of Mr Upen Mondal) and many others who had witnessed the incident took Sudarshan to Godhanpara Primary Health Care Centre. The doctor who attended Sudarshan at Godhanpara Primary Health Care Centre referred him to Bahrampur New General Hospital because of the severity of the injury, where Sudarshan was advised to go for a Computed Tomography (CT) scan. The CT scan was done on 4 November 2011 at Sudarshan's own expense. Sudarshan was only discharged on 7 November 2011 and still required medical treatment after his discharge.

The BSF has since warned him against registering a complaint with the police. After being counselled by MASUM, Sudarshan finally plucked up the courage to report the incident before the Superintendent of Police of Murshidabad on 18 May 2012, but no action has been taken to this day. Sudarshan has been financially and physically devastated by the incident, and has not been able to work or continue paying for the medical treatment needed to get well.

The above case highlights several systemic failures in the administration of Murshidabad in West Bengal:

1. The lack of transparency and accountability in the operation of the BSF, which breeds impunity;
2. The deviation of paramilitary and law enforcement operations from due process and a complete disregard for the law;
3. The pervasive, excessive and oftentimes senseless use of violence by provincial authorities against individuals within their jurisdiction;
4. The lack of enforcement and/or poor communication by India's central government of basic protocol amongst paramilitary forces such as the BSF;
5. The lack of complete responsiveness of police to aggrieved locals either due to fear of or collusion with the BSF, or an execrable apathy to the plight of the victim and his family.

The Border Security Act, 1968 and its Rules 1969, regulates the conduct of the BSF. 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 of 1860 also 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. In addition, Article 21 of the Constitution guarantees protection of life and personal liberty of every citizen. There is, however, an obvious lack of discipline and commitment to duty, as well as a culture of violence and impunity, within the BSF. This case once again illustrates how the BSF operates, and is permitted to operate, with impunity and in utter defiance of these three legal documents.

The AHRC has documented substantial number of BSF atrocities in India over the years. AHRC and MASUM have reported in detail over 800 cases of custodial violence committed by the BSF over the past eight years and have called for action on the part of the Indian authorities. The AHRC has noted the absolute impunity with which the BSF acts, a fact evidenced by the lack of disciplinary action taken against their criminal offences by the relevant BSF superiors and police personnel. Critically, many of these cases reveal a troubling unresponsiveness, and sometimes complicity, in parts of the legal system to patent injustices committed against individuals by the BSF. Not only is the legitimacy and integrity of the Indian justice system threatened, but so is its border and national security.

Sudarshan and the others who had tried to smuggle cattle with him have, as human beings, a right to life, liberty and personal security (Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights, Article 6 (1), 7, 9 and 10). The BSF jawans not only did not comply with procedures established in the 1973 Criminal Procedure Code, a major law issued by the Central Government. Rather, the BSF fired upon and chased down the men like animals, and did not treat them as born free and equal to themselves in dignity and rights and as being endowed with reason and conscience (Article 1, UDHR). In so doing, the BSF wilfully violated Article 21 of the Indian Constitution, which demands that no person be denied of his life except according to procedure established by law, a transgression that should be swiftly met with by the centre through punitive action against these rogue actors. Instead of ensuring border security and being moral exemplars to the society they are called to protect, the BSF promises the gradual corruption of already weak policing systems, increased lawlessness and an environment of palpable fear that reeks of oppression, past feudalism and neo-colonial structures in contemporary Indian society. The poor discipline among paramilitary forces necessitates authoritative and decisive review, rehabilitation of reform of prevailing institutional structures that have failed to address the systematic abuse of individuals' legal and constitutional rights.

The state has a moral and legal responsibility to provide for its people. India acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1979, yet has not fulfilled its promises to take appropriate steps toward realise individuals' rights to work freely chosen or accepted, to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions and to the enjoyment of the highest attainable standard of physical and mental health (Articles 6, 11 and 12 of the ICESCR). Sudarshan resorted to smuggling because the state had failed to implement measures that would ensure alternative forms of work and income for the individuals affected by caste-based discrimination and low literacy. Such institutional and technocratic deficiencies in fact exacerbate existing hunger and desperation, conditions that contribute to crime and other social ills (in this case, smuggling). These illegal activities are furthermore met, not by a realisation of those original governmental inadequacies but with equally criminal brutality, perpetuated quite ironically by agents of law enforcement.

The state has a duty to provide access to suitable employment and to secure the life, liberty and security of persons under its jurisdiction. Sudarshan resorted to the criminal activity of smuggling in order to feed his family. Such desperation reflects poorly on the ability and will of political actors to look after their constituents and the ability of the courts to review unconstitutional practices and protect the fundamental freedoms of the individual against the crushing power of the state. This case of torture also clearly evidences the failure of the Central Government to uphold its international commitments to guarantee and defend human rights; this will have adverse effects on India's global standing. If the government is itself unwilling or unable to transcend this vicious cycle of poverty and violence, it is hardly like individuals like Sudarshan will be able to escape it on their own.

Without urgent state intervention, the people of Murshidabad, particularly the most vulnerable – the women, the elderly, the widowed, the illiterate, members of minorities and those from outside the dominant caste – face, for the foreseeable future, continued abuse of their freedoms and physical person and no likelihood for justice to be served to those acting with complete impunity. As such, we call on the government of West Bengal and the Central Government to act quickly on the above findings to review laws, policies and institutional structures that have permitted such arbitrary violence to flourish, and to carry out the necessary reform. Only by arresting the continued cheapening of human lives and liberties by paramilitary and law enforcement agencies can India aspire to greater civilisation and a brighter future.

I therefore demand that:

1. The incident of Sudarshan's torture is investigated by an independent agency jointly established or appointed by the National Human Rights Commission and the Central Government;
2. The BSF personnel responsible for such heinous acts against the physical well-being of Sudarshan and his associates are identified, suspended from service, investigated thoroughly and brought to justice;
3. The BSF as an organisational entity is investigated for the appalling and widespread practice of physically abusing suspects;
4. An FIR is issued for the complaint Sudarshan registered before the Superintendent of Police of Murshidabad on 18 May 2012;
5. Sudarshan is adequately compensated as soon as possible for all financial loss arising from medical expenses and the income lost through unemployment as a direct result of the injuries sustained;
6. All opportunities for physical and psychological rehabilitation are availed Sudarshan and his family;
7. Adequate protection is provided Sudarshan, his family, his associates and all witnesses who may be subject to retaliatory attacks by armed BSF personnel who have demonstrated no hesitation in the use of lethal weapons, even absent grave provocation;
8. A full review of police practices at Raninagar Police Station is conducted to determine the cause of such negligence and inaction where the police should have arranged for a thorough investigation of the BSF (e.g. collusion with the BSF, fear of the BSF, apathy to crimes committed by the BSF);
9. Policies or laws are introduced to strengthen the mandate of the police over the BSF in areas under the police's jurisdiction in order for a system of checks and balances to be set up that will prevent future abuse, and for the BSF's mandate to be more firmly circumscribed as the regulation of borders within a certain geographic range only;
10. Proper training is provided to further drive home the importance of due process and the protection of individual rights and liberties under all circumstances. The Central Government should deliberately emphasise the legal, constitutional and human rights of individuals when training and briefing police officers, members of the judiciary and the paramilitary forces' personnel and undertake to directly protect such rights from the centre if provincial authorities are unable or unwilling to do so.

Yours sincerely,

_____________
PLEASE SEND YOUR LETTERS TO:

1. 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

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 2214 4328
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. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@nic.in

7. 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)

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