Over the past decade, Human Rights Watch has recorded the occurrence of over 1,000 killings of civilians at the hands of Border Security Force (BSF) personnel, in which a majority of victims were unarmed. Despite these numbers, arrests are rare in such instances of arbitrary use of force – which often result in the death of the civilian – and prosecutions even rarer, primarily due to the statutory prerequisite of sanction from the Central Government for prosecution, under the Section 197 of the Code of Criminal Procedure. The Asian Human Rights Commission (AHRC) has previously issued Urgent Appeals on the matter, and has requested the authorities to redress the issue of arbitrary violence and extra-judicial killings by BSF personnel and other armed security personnel. The AHRC has received information about another arbitrary shooting in Cooch-Behar in the state of West Bengal, from our partner organization, MASUM, an organization dedicated to tracking human rights violations in the state. On 03 June 2017, Majidul Haque, a resident of the district, sustained a gunshot injury as a result of arbitrary firing by BSF personnel. He was admitted to a nursing home for a period of twenty days, to receive treatment and recover from this injury. His wife, Nurjahan Bibi, made a written complaint to the Superintendent of Police in Cooch-Behar, describing the particulars of the incident and demanding that legal action be taken against the involved personnel for arbitrarily opening fire on a civilian. However, no action has been taken on the matter until date. The Police have unlawfully refrained from opening an investigation into the shooting, despite being mandated to do so upon receipt of information pertaining to the commission of a cognizable offence, as held by the Supreme Court in Lalita Kumari v. Govt. of UP & Ors. [(2014) 2 SCC 1].
Fortunately, Haque was not killed, but he sustained serious injuries due to the violent actions of the BSF. The actions of the personnel, and the subsequent impunity from legal action that they enjoy, permit them to function in an inhumane and negligent manner. While the purpose of such armed forces existing is to ensure the safety and security of citizens of the country, especially in border areas, they blatantly derogate from their duties by misusing their weaponry to terrorize civilians who have not committed any offence. Similarly, the police officers who refuse to investigate the incident are also derogating their statutorily-mandated duty by refusing to provide protection to a vulnerable member of the public, who is need of their help. A neutral authority, preferably the Central Bureau of Investigation must perform this investigation, rather than the local Police, as mandated by R.S. Sodhi v. State of Uttar Pradesh [1994 Supp 1 SCC 143]. Moreover, the National Human Rights Commission should exercise the powers provided under the Protection of Human Rights Act, and institute an inquiry into the arbitrary use of force by security personnel. It is also essential that the victim is provided with adequate compensation for the violation of his fundamental rights by a State-sponsored entity, in accordance with the SC decision in Nilabeti Behera v. State of Orissa [1993 AIR 1960].
However, it would be amiss to treat this as an isolated incident. Armed security personnel in India are known for unlawfully engaging with civilians, resulting in the death or injury of the latter. Over the past six months, there have been several reported instances of BSF personnel shooting and killing civilians on several fronts of the Indian border. In June, two Bangladeshi minors were gunned down by BSF personnel, purportedly for attempting to illegally cross the border into India, while another Bangladeshi man was injured in a similar incident in July. Similarly, a Kashmiri youth was murdered in a suspicious incident involving BSF personnel. Yet, there has been barely any media coverage of these incidents, and no information available on follow-up investigations into these incidents. This is despite there being no evidence of the victims carrying any weapons or posing any threat to the personnel, a fact that necessitates an inquiry into the circumstances of the incident. In addition to violating the fundamental right to life enshrined in Article 21, as well as in all foundational international human rights instruments, such encounters are violative of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which, while being non-binding, was accepted by a majority of member states of the UN General Assembly in 1990. These dictate that all security personnel must use force against civilians judiciously and only in case the civilian poses an immediate danger. Moreover, being that some of the victims were minors, there is an additional duty on the State imposed by its obligations under the Convention on the Rights of the Child to ensure that the incident is not repeated, and that even children allegedly involved in criminal activities are protected and their due process rights not infringed.
A database of all extra-judicial killings and fake encounters compiled by MASUM demonstrates that a significant number of such incidents occur each year in India, and it becomes instantly clear that these incidents do not receive the requisite media coverage nor State recognition. Moreover, these are at odds with official reports compiled by the Central Government, which make no mention of the epidemic of fake encounters, arbitrary shootings, and extra-judicial killings in which all armed security personnel are complicit. It is essential that this issue is taken up on an urgent basis, to ensure compliance with international legal protections and domestic human rights law. Armed security personnel must be adequately informed during their training, of the need to adhere to the norms prescribed under the law, and heavily penalized for violations of the same. It is essential that the Central Government does not take a lackadaisical attitude towards such actions by any armed personnel, and removes the requirement for sanctions, to ensure that justice is readily and speedily delivered to victims.
The duty of BSF personnel is to protect, not harm, and by continuing to indulge in criminal activities against civilians for reasons of revenge, prejudice or punishment, the BSF is only further alienating the people, contributing to an image as a Force to be afraid of and not one to be rejoiced. Ultimately, they are wasting precious time and resources, responding to notices in investigations against officers, cleaning up the mess created due to the excessive and arbitrary use of force against poor, unarmed people going about their daily lives. It is unnecessary and illegal and must end.
