Dear friends,
The Asian Human Rights Commission (AHRC) has received information from MASUM concerning the murder of 21-year-old Jiarul Sardar on 10 June 2012 in yet another case of Border Security Forces (BSF) brutality in West Bengal, India. Torture, extrajudicial killings and acts of impunity are features of everyday life for Indian people living near the country’s borders under the excuse of protecting national security. Such state-sponsored acts deny a human being’s inherent and fundamental right to life, security of person and access to equal protection by the law. Such acts are oppressive, patently unjust and contemptible. Such acts threaten the survival of India and her government.
We urge you to write in to appeal to the relevant authorities to take actions against the BSF personnel responsible for their morally reprehensible crimes. In so doing, we express a hope that, despite the seemingly insurmountable dangers faced by the ordinary citizen, the Indian authorities 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:
Jiarul Sardar, a 21-year-old whose family has been listed as living below poverty line (BPL), worked under a mason in the state of Uttar Pradesh for his daily wages. He had returned home for a break from work to live with his widowed mother and older sister in Bithari Pabankati village in North 24 Parganas, West Bengal. In the afternoon of 10 June 2012, Jiarul went to Bithari Pabankati Unnayan Sangha, a local club, where he had arranged to play carom with his friends.
Although Jiarul was himself not involved in cattle smuggling, many other youths of his age in the village were engaged in this illegal activity in order to make ends meet, and were couriers for smuggling syndicates. When Jiarul was at the club, a few of his friends were attempting to move cattle into Bangladesh and Jiarul was told to wait for them at the club, where they would return after the cows were successfully smuggled across the border.
Around 9pm that night, a group of officers from the 152nd Battalion of the BSF attached to the Bithari Border Outpost of Tarari Camp began, without warning, firing indiscriminately upon the smugglers. Three men were hit by the bullets, including Rajib Mal, son of Mr Nasiruddin Mal of the Swarupdah Village under Swarupnagar Police Station, who was shot in the back. Rajib managed to hide himself nearby, and two other smugglers, Bangladeshi citizens, survived their injuries and crossed the border back into Bangladesh.
Jiarul had been fatally shot, well within the Indian border. The BSF personnel dragged his body closer to the border and dumped it in a pond near Padma Bila, Suta Math. The victim’s family only heard of the incident the next day (11 June) at approximately 6am. The victim’s brother-in-law, Mr Nazrul Sardar, first heard the news when Mr Rahan Sardar, a neighbour walking his cattle, happened on Jiarul’s corpse. Rahan informed the rest of the villagers, who then contacted the Swarupnagar Police Station over the phone to make a report. The second officer of the Swarupnagar Police Station was dispatched and arrived with four other constables around 9am to take the body to the Basirhat Police Morgue for an autopsy. On the same day, after the post-mortem examination, the victim’s family recovered the body from the police to perform some funeral rites.
A case of unnatural death was filed at the Swarupnagar Police Station (vide Swarupnagar Police Station U/D Case No. 16/12 of 11 June 2012). Interestingly, the police later also received a complaint of cattle smuggling from the BSF against the deceased (Swarupnagar Police Station, Case No. 272/12 dated 11 June 2012 under Sections 147/148/149/186/188/353/332/333 of the Indian Penal Code). The audacity with which the BSF have retroactively registered a case against Jiarul is alarming. The entire community believes that Jiarul is innocent of the charges being posthumously brought against him, and his family fears that these fabricated charges will be used to justify his death at the hands of callous and brutal BSF personnel. As such, the allegations must be properly investigated and Jiarul’s name cleared. The defensive posture of the BSF suggests that they are aware they have done something extraordinary criminal – they have failed to follow procedures laid down by law and might be made to suffer the consequences of having murdered an innocent man. What is most despicable and distressing about the entire affair is the complete callousness with which the crime has been committed – no genuine attempt was made to first investigate the matter or warn the men before lethal force was employed against them.
The BSF has been trying to create the impression that efforts have been made to ensure the protection of human rights through statements promising increased self-restraint in the use of lethal weapons and through the appointment of a Human Rights Officer at the BSF Headquarters at the South Bengal Frontier. NGOs and civil society welcome such moves, yet the BSF’s officers continue to disregard the sanctity of human life and rule of law. This organisational failure more than casts doubt on the sincerity of the BSF. The deep disjuncture between the expectations of the people and the behaviour exhibited by the BSF will generate widespread bitterness, disillusionment and resentment toward the rogue paramilitary force. The Force is tasked with protecting territorial integrity – it should not then tear society apart through criminal and senselessly violent practices.
The Central Government undertook to defend the Indian Constitution and to honourably govern the country and her people. International treaties legally binding states to protect human rights are contracts acceded to by the central authorities. It is also the Central Government that continues to endorse, fund, and, at least theoretically, lead the paramilitary forces. It is therefore the sole responsibility of the Union Government to rein in atrocities committed by the BSF. Yet the government of India has neither stepped in to castigate those responsible for the murder of Jiarul or to initiate desperately needed reform amongst the paramilitary. Such distancing from the political core encourages the flourishing of impunity at the geopolitical periphery where paramilitary forces operate.
The National Human Rights Commission in New Delhi has made a few recommendations concerning practices of torture and extrajudicial killings by the BSF; these include financial compensation for victims and their families. Yet these measures are, at best, token gestures denouncing the brutality of the BSF, much less guarantees for the impoverished against acts of impunity by the paramilitary force. True change can only be effected through policies and laws enacted and enforced by the state and central authorities. The police who administer the area, for instance, must be given the mechanisms and mandate with which to challenge, investigate and prosecute the irresponsible and violent acts of the BSF. Only by so doing can the Indian government fulfil its commitment to rule of law (ensuring the equality of all individuals before the law and their entitlement to equal protection by the law). Without such intervention, the people of West Bengal and the most vulnerable sectors of society in particular – women, children, the elderly, the illiterate, religious minorities and the impoverished – 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.
ADDITIONAL INFORMATION:
Paramilitary forces are to enforce the law and be moral exemplars to the community they police. Minimally, therefore, these armed forces should adhere to same laws they guard. In addition, they are to adhere to codes and practices stipulated by acts and ordinances created specifically to regulate their activities and prevent the abuse of authority. Armed forces ought to also be subjected to monitoring by an independent and impartial party. Ideally, such organisations should adopt and internalise the fundamental principles upon which statues are enacted (i.e. the spirit, as opposed to only the letter, of the law), principles such as justice, compassion and respect for the inherent dignity of a human being. Blatant contempt for rule of law by forces armed, funded and, theoretically, directed by the Central Government is disgraceful because with great power comes great responsibility. Armed forces are to react in a measured manner to all situations, to discharge their duties and to be legally and morally beyond reproach.
Commitments by the state to protect the individual and uphold his/her rights have also been incorporated into several key legal texts. The 1950 Indian Constitution, the 1860 Indian Penal Code (IPC) and the 1973 Criminal Procedure Code (CrPC) are three examples of legal documents that affirm the rights of the individual as well as the responsibility of the state to ensure such. Articles 14 and 21 of the Indian Constitution guarantee individuals’ rights to protection of life, to equality before the law and to equal protection by the law without discrimination.
The BSF used criminal force when they fired indiscriminately upon Jiarul and the smugglers without warning. This is defined in Section 350 of the IPC as intentional force against a person’s consent knowing it likely to cause injury, fear or annoying to the person against whom the force is being used. These barbaric actions are indefensible according to Articles 45, 132(d) and 197(2) of the CrPC which clearly state that an officer must have been acting in his official capacity to enjoy immunity from being charged in civilian courts. Even for acts carried out in the formal discharge of duty, BSF officers must be made to stand before a military tribunal to account for their actions. Where a man’s life has been so cheapened, this is the very least the authorities are expected to demand of their officers, in whose hands the lives of so many are entrusted.
Voluntarily causing grievous hurt by dangerous weapons or means is punishable with life imprisonment and a fine according to Section 326 of the IPC. The IPC also categorically states in Section 299 and 300 that, (even if the BSF were) public servants acting for the advancement of public justice, if they exceed the powers given unto them by law and cause death, be it through acts they believe, in good faith, lawful and necessary for the due discharge of their duty, they are still guilty of culpable homicide and should be accordingly charged. Under Section 211 of the IPC, it is a criminal offence to make a false charge of offence with intent to injure. Defamation is also criminal according to Section 499 of the IPC. False allegations by the BSF about Jiarul’s alleged involvement in cattle smuggling were made retrospectively and maliciously by the BSF and injure his reputation and his family’s feelings, particularly in light of his sudden death. Such unjust and mean measures by the paramilitary to legitimise the brutality and lethalness of the attack on unarmed men are despicable and confront every feeling human conscience.
The Border Security Act, 1968 and its Rules, 1969 was designed to regulate 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. Disgraceful conduct of a cruel, indecent or unnatural kind is also punishable under Section 24(a) of the BSA. Yet BSF officers often act with shocking impunity and a complete disregard for the sanctity of life. Their crimes are frequently overlooked and almost always go unpunished. The Central Government has consistently refused or have been excruciatingly slow to act to remedy the perversion of the command structure and normative principles enshrined in legal statutes that ought to guide the actions of the paramilitary forces despite commitments to uphold universal norms and values. Such attitudes negate the purpose and force of laws, devastate trust in and popular support for governing institutions and are thus generally self-defeating.
The BSF personnel acted with random and unconscionable violence; the legal ramifications of the inability of law enforcement agencies and the judiciary to meet such overt challenges to rule of law are immense. Beyond the obvious psychological trauma and financial implications for the victim’s family and community, this event is but one of many manifestations of the troubling inhumanity and indiscipline of existing institutions in India. The Asian Human Rights Commission has documented in detail a substantial number of BSF atrocities in India over the years and has called for action on the part of the Indian authorities. The organisation 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 executive and even in the judiciary, to patent injustices committed against individuals by the BSF. Not only is the legitimacy and integrity of the Indian government threatened, but so is its border and national security.
The danger posed to India and her peoples by a violent, unpredictable and unaccountable paramilitary force cannot be overstated. Organisational failures, such a broken chain of command, random acts of unsanctioned violence and attempts to cover up crime, threaten the very survival of the Indian nation by provoking resentment and distrust of authority. Local and central authorities abet the crime by refusing to dispute the fabricated charges or by initiating a thorough investigation. Perhaps it is believed that an inquiry would ruin the impression of harmony, hierarchy and trust between the government and its paramilitary affiliates. Yet to not investigate the matter or bear any responsibility would communicate other more troubling truths to the Indian citizenry – (i) the government genuinely has lost control over the BSF entirely, and/or (ii) lawlessness is commonplace and acceptable, and/or (iii) the government has stopped caring about its people. The terrible consequences of admitting to these cannot be adequately expressed in this brief report. It suffices to say that contempt for the law is disruptive and dangerous. A broken chain of command and contravention of orders from the centre threatens not only the functionality of individual regimes and governments, but the administration and identity of the entire Indian nation.
Ahimsa, or non-violence, was a value Mahatma Gandhi very fervently advocated in his lifetime. Gandhi was martyred in 1948, the year in which the Universal Declaration of Human Rights (UDHR) was first promulgated. The UDHR heralded the dawning of a new and practical humanism, one which bound all of humanity in its timeless and universal proclamation of the values of non-violence, justice, equality, rule of law, democratic governance and respect for the inherent dignity of man. International treaties such as the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1976 International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which India acceded to in 1979, bind states to the protection of individuals’ inalienable rights against the arbitrary deprivation of life (Article 6(1), ICCPR), to be presumed innocent until proven guilty according to law (Article 14(2), ICCPR), to be informed of the charges against him, to be provided sufficient time and resources to prepare for his own defence, to be tried fairly and impartially, to examine or have examined witnesses against him, to obtain and examine witnesses on his behalf (these are “minimum guarantees” under Article 14(3), ICCPR), to recognition as a person before the law (Article 16, ICCPR), against attacks on his honour or reputation (Article 17, ICCPR), to equal protection by the law (Article 26) and to effective remedy (Article 2(3), ICCPR). These are entitlements Jiarul was born with and robbed of by those privileged with the use of lethal weapons they were not disciplined or morally mature enough to wield.
A further cause of disenfranchisement is the failure of the local government to provide opportunities of fair employment for its youth, who eke out of living through bootlegging cattle along the Indo-Bangladesh border. Jiarul was one of the few men in his village who had managed to seek out respectable, if not particularly lucrative or conveniently located, employment, and still was not spared from the blind flight of carelessly and callously issued bullets. The other men who were actually guilty of smuggling activities also did not deserve to be so summarily executed – they should have been arrested, properly tried and convicted according to the due process quite comprehensively laid out in the CrPC, which clearly states that “nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life” (Article 46(3)). Although such a statement contradicts the declaration that humans have the inalienable right to life, it just as clearly conveys the notion that armed personnel have no legal right or moral justification for the death of Jiarul or any person, regardless of whether or not they had been smuggling cattle.
The Indian Republic is founded upon the notion of the sovereignty of the people, upon which the government’s legitimacy and power rests, and from which they derive their mandate. A government that tolerates the arbitrary killing of its own citizens is a government that the people will choose not to support. It is a government bereft of patriots, of ideals and of democratic credentials. It is imperative that the Central Government therefore acts decisively to reassure its people of its commitment to peace, non-violence and justice, ideals upon which the nation was constructed.
It remains to be seen if the right enumerated in Article 8 of the UDHR (to effective remedy by competent national tribunals for acts violating fundamental rights granted by the constitution and by law) will be secured for Jiarul’s family, a lonely and suffering group in a mute multitude long terrorised and victimised by the BSF. Immunity is being afforded the BSF by virtue of their status as “armed forces” not prosecutable in civilian courts, by interminable delays in the investigative process and by deficiencies in the judicial system; this frustrates efforts by victims and their families to obtain redress. It therefore remains firmly the duty of the Central Government to act decisively to punish the flouting of laws and to conduct meaningful institutional reviews. Insofar as the BSF cannot be rehabilitated, it must be forcibly and dramatically reconstituted to reflect and embody the needs and aspirations of the Indian people to democratic governance, rule of law and a lasting peace.
SUGGESTED ACTION:
Please write to the authorities mentioned below demanding an investigation into this case. Mr Jiarul Sardar’s death at the hands of the BSF must be inquired into. The victim’s family must be provided adequate compensation and protection against reprisals by challenged BSFs. The government must assure the wider community 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 Extrajudicial, Summary or Arbitrary Executions calling for further intervention in this case.
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SAMPLE LETTER
Dear __________,
INDIA: Please investigate the killing of 21-year-old Jiarul Sardar by personnel from the 152nd Battalion of the Border Security Forces (BSF), who fired indiscriminately on Bithari Pabankati Unnayan Sangha, a local club in Bithari Pabankati Village, North 24 Parganas, West Bengal
Name of victim: Jiarul Sardar, s/o late Muhammad Sardar, 21 years old, Muslim, worked for daily wages in the field of masonry in Uttar Pradesh and was a resident of Bithari Pabankati Village, Post Office Hakimpur under the jurisdiction of Swarupnagar Police Station in 24 North Parganas, West Bengal
Names of alleged perpetrators: Border Security Forces personnel attached to the Bithari Border Outpost of Tarari Camp under the 152nd Battalion of the BSF
Date of incident: Around 9pm on 10 June 2012
Place of incident: Bithari Pabankati Unnayan Sangha, a local club in Bithari Pabankati Village, Post Office Hakimpur under the jurisdiction of Swarupnagar Police Station in 24 North Parganas, West Bengal
I am writing to express concern regarding yet another case of extrajudicial killing by the BSF personnel attached to Tarari Camp under 152nd Battalion of the BSF around 9pm on 10 June 2012 in the village of Bithari Pabankati. The details of the case are as follows:
Jiarul Sardar, a 21-year-old whose family has been listed as living below poverty line (BPL), worked under a mason in the state of Uttar Pradesh for his daily wages. He had returned home for a break from work to live with his widowed mother and older sister in Bithari Pabankati village in North 24 Parganas, West Bengal. In the afternoon of 10 June 2012, Jiarul went to Bithari Pabankati Unnayan Sangha, a local club, where he had arranged to play carom with his friends.
Although Jiarul was himself not involved in cattle smuggling, many other youths of his age in the village were engaged in this illegal activity in order to make ends meet, and were couriers for smuggling syndicates. When Jiarul was at the club, a few of his friends were attempting to move cattle into Bangladesh and Jiarul was told to wait for them at the club, where they would return after the cows were successfully smuggled across the border.
Around 9pm that night, a group of officers from the 152nd Battalion of the BSF attached to the Bithari Border Outpost of Tarari Camp began, without warning, firing indiscriminately upon the smugglers. Three men were hit by the bullets, including Rajib Mal, son of Mr Nasiruddin Mal of the Swarupdah Village under Swarupnagar Police Station, who was shot in the back. Rajib managed to hide himself nearby, and two other smugglers, Bangladeshi citizens, survived their injuries and crossed the border back into Bangladesh.
Jiarul had been fatally shot, well within the Indian border. The BSF personnel dragged his body closer to the border and dumped it in a pond near Padma Bila, Suta Math. The victim's family only heard of the incident the next day (11 June) at approximately 6am. The victim's brother-in-law, Mr Nazrul Sardar, first heard the news when Mr Rahan Sardar, a neighbour walking his cattle, happened on Jiarul's corpse. Rahan informed the rest of the villagers, who then contacted the Swarupnagar Police Station over the phone to make a report. The second officer of the Swarupnagar Police Station was dispatched and arrived with four other constables around 9am to take the body to the Basirhat Police Morgue for an autopsy. On the same day, after the post-mortem examination, the victim's family recovered the body from the police to perform some funeral rites.
A case of unnatural death was filed at the Swarupnagar Police Station (vide Swarupnagar Police Station U/D Case No. 16/12 of 11 June 2012). Interestingly, the police later also received a complaint of cattle smuggling from the BSF against the deceased (Swarupnagar Police Station, Case No. 272/12 dated 11 June 2012 under Sections 147/148/149/186/188/353/332/333 of the Indian Penal Code). The audacity with which the BSF have retroactively registered a case against Jiarul is alarming. The entire community believes that Jiarul is innocent of the charges being posthumously brought against him, and his family fears that these fabricated charges will be used to justify his death at the hands of callous and brutal BSF personnel. As such, the allegations must be properly investigated and Jiarul's name cleared. The defensive posture of the BSF suggests that they are aware they have done something extraordinary criminal – they have failed to follow procedures laid down by law and might be made to suffer the consequences of having murdered an innocent man. What is most despicable and distressing about the entire affair is the complete callousness with which the crime has been committed – no genuine attempt was made to first investigate the matter or warn the men before lethal force was employed against them.
The BSF has been trying to create the impression that efforts have been made to ensure the protection of human rights through statements promising increased self-restraint in the use of lethal weapons and through the appointment of a Human Rights Officer at the BSF Headquarters at the South Bengal Frontier. NGOs and civil society welcome such moves, yet the BSF's officers continue to disregard the sanctity of human life and rule of law. This organisational failure more than casts doubt on the sincerity of the BSF. The deep disjuncture between the expectations of the people and the behaviour exhibited by the BSF will generate widespread bitterness, disillusionment and resentment toward the rogue paramilitary force. The Force is tasked with protecting territorial integrity – it should not then tear society apart through criminal and senselessly violent practices.
The Central Government undertook to defend the Indian Constitution and to honourably govern the country and her people. International treaties legally binding states to protect human rights are contracts acceded to by the central authorities. It is also the Central Government that continues to endorse, fund, and, at least theoretically, lead the paramilitary forces. It is therefore the sole responsibility of the Union Government to rein in atrocities committed by the BSF. Yet the government of India has neither stepped in to castigate those responsible for the murder of Jiarul or to initiate desperately needed reform amongst the paramilitary. Such distancing from the political core encourages the flourishing of impunity at the geopolitical periphery where paramilitary forces operate.
Paramilitary forces are to enforce the law and be moral exemplars to the community they police. Minimally, therefore, these armed forces should adhere to same laws they guard. In addition, they are to adhere to codes and practices stipulated by acts and ordinances created specifically to regulate their activities and prevent the abuse of authority. Armed forces ought to also be subjected to monitoring by an independent and impartial party. Ideally, such organisations should adopt and internalise the fundamental principles upon which statues are enacted (i.e. the spirit, as opposed to only the letter, of the law), principles such as justice, compassion and respect for the inherent dignity of a human being. Blatant contempt for rule of law by forces armed, funded and, theoretically, directed by the Central Government is disgraceful because with great power comes great responsibility. Armed forces are to react in a measured manner to all situations, to discharge their duties and to be legally and morally beyond reproach.
Commitments by the state to protect the individual and uphold his/her rights have also been incorporated into several key legal texts. The 1950 Indian Constitution, the 1860 Indian Penal Code (IPC) and the 1973 Criminal Procedure Code (CrPC) are three examples of legal documents that affirm the rights of the individual as well as the responsibility of the state to ensure such. Articles 14 and 21 of the Indian Constitution guarantee individuals' rights to protection of life, to equality before the law and to equal protection by the law without discrimination.
The BSF used criminal force when they fired indiscriminately upon Jiarul and the smugglers without warning. This is defined in Section 350 of the IPC as intentional force against a person's consent knowing it likely to cause injury, fear or annoying to the person against whom the force is being used. These barbaric actions are indefensible according to Articles 45, 132(d) and 197(2) of the CrPC which clearly state that an officer must have been acting in his official capacity to enjoy immunity from being charged in civilian courts. Even for acts carried out in the formal discharge of duty, BSF officers must be made to stand before a military tribunal to account for their actions. Where a man's life has been so cheapened, this is the very least the authorities are expected to demand of their officers, in whose hands the lives of so many are entrusted.
Voluntarily causing grievous hurt by dangerous weapons or means is punishable with life imprisonment and a fine according to Section 326 of the IPC. The IPC also categorically states in Section 299 and 300 that, (even if the BSF were) public servants acting for the advancement of public justice, if they exceed the powers given unto them by law and cause death, be it through acts they believe, in good faith, lawful and necessary for the due discharge of their duty, they are still guilty of culpable homicide and should be accordingly charged. Under Section 211 of the IPC, it is a criminal offence to make a false charge of offence with intent to injure. Defamation is also criminal according to Section 499 of the IPC. False allegations by the BSF about Jiarul's alleged involvement in cattle smuggling were made retrospectively and maliciously by the BSF and injure his reputation and his family's feelings, particularly in light of his sudden death. Such unjust and mean measures by the paramilitary to legitimise the brutality and lethalness of the attack on unarmed men are despicable and confront every feeling human conscience.
The Border Security Act, 1968 and its Rules, 1969 was designed to regulate 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. Disgraceful conduct of a cruel, indecent or unnatural kind is also punishable under Section 24(a) of the BSA. Yet BSF officers often act with shocking impunity and a complete disregard for the sanctity of life. Their crimes are frequently overlooked and almost always go unpunished. The Central Government has consistently refused or have been excruciatingly slow to act to remedy the perversion of the command structure and normative principles enshrined in legal statutes that ought to guide the actions of the paramilitary forces despite commitments to uphold universal norms and values. Such attitudes negate the purpose and force of laws, devastate trust in and popular support for governing institutions and are thus generally self-defeating.
The BSF personnel acted with random and unconscionable violence; the legal ramifications of the inability of law enforcement agencies and the judiciary to meet such overt challenges to rule of law are immense. Beyond the obvious psychological trauma and financial implications for the victim's family and community, this event is but one of many manifestations of the troubling inhumanity and indiscipline of existing institutions in India. The Asian Human Rights Commission has documented in detail a substantial number of BSF atrocities in India over the years and has called for action on the part of the Indian authorities. The organisation 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 executive and even in the judiciary, to patent injustices committed against individuals by the BSF. Not only is the legitimacy and integrity of the Indian government threatened, but so is its border and national security.
The danger posed to India and her peoples by a violent, unpredictable and unaccountable paramilitary force cannot be overstated. Organisational failures, such a broken chain of command, random acts of unsanctioned violence and attempts to cover up crime, threaten the very survival of the Indian nation by provoking resentment and distrust of authority. Local and central authorities abet the crime by refusing to dispute the fabricated charges or by initiating a thorough investigation. Perhaps it is believed that an inquiry would ruin the impression of harmony, hierarchy and trust between the government and its paramilitary affiliates. Yet to not investigate the matter or bear any responsibility would communicate other more troubling truths to the Indian citizenry – (i) the government genuinely has lost control over the BSF entirely, and/or (ii) lawlessness is commonplace and acceptable, and/or (iii) the government has stopped caring about its people. The terrible consequences of admitting to these cannot be adequately expressed in this brief report. It suffices to say that contempt for the law is disruptive and dangerous. A broken chain of command and contravention of orders from the centre threatens not only the functionality of individual regimes and governments, but the administration and identity of the entire Indian nation.
Ahimsa, or non-violence, was a value Mahatma Gandhi very fervently advocated in his lifetime. Gandhi was martyred in 1948, the year in which the Universal Declaration of Human Rights (UDHR) was first promulgated. The UDHR heralded the dawning of a new and practical humanism, one which bound all of humanity in its timeless and universal proclamation of the values of non-violence, justice, equality, rule of law, democratic governance and respect for the inherent dignity of man. International treaties such as the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1976 International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which India acceded to in 1979, bind states to the protection of individuals' inalienable rights against the arbitrary deprivation of life (Article 6(1), ICCPR), to be presumed innocent until proven guilty according to law (Article 14(2), ICCPR), to be informed of the charges against him, to be provided sufficient time and resources to prepare for his own defence, to be tried fairly and impartially, to examine or have examined witnesses against him, to obtain and examine witnesses on his behalf (these are "minimum guarantees" under Article 14(3), ICCPR), to recognition as a person before the law (Article 16, ICCPR), against attacks on his honour or reputation (Article 17, ICCPR), to equal protection by the law (Article 26) and to effective remedy (Article 2(3), ICCPR). These are entitlements Jiarul was born with and robbed of by those privileged with the use of lethal weapons they were not disciplined or morally mature enough to wield.
A further cause of disenfranchisement is the failure of the local government to provide opportunities of fair employment for its youth, who eke out of living through bootlegging cattle along the Indo-Bangladesh border. Jiarul was one of the few men in his village who had managed to seek out respectable, if not particularly lucrative or conveniently located, employment, and still was not spared from the blind flight of carelessly and callously issued bullets. The other men who were actually guilty of smuggling activities also did not deserve to be so summarily executed – they should have been arrested, properly tried and convicted according to the due process quite comprehensively laid out in the CrPC, which clearly states that "nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life" (Article 46(3)). Although such a statement contradicts the declaration that humans have the inalienable right to life, it just as clearly conveys the notion that armed personnel have no legal right or moral justification for the death of Jiarul or any person, regardless of whether or not they had been smuggling cattle.
The Indian Republic is founded upon the notion of the sovereignty of the people, upon which the government's legitimacy and power rests, and from which they derive their mandate. A government that tolerates the arbitrary killing of its own citizens is a government that the people will choose not to support. It is a government bereft of patriots, of ideals and of democratic credentials. It is imperative that the Central Government therefore acts decisively to reassure its people of its commitment to peace, non-violence and justice, ideals upon which the nation was constructed.
It remains to be seen if the right enumerated in Article 8 of the UDHR (to effective remedy by competent national tribunals for acts violating fundamental rights granted by the constitution and by law) will be secured for Jiarul's family, a lonely and suffering group in a mute multitude long terrorised and victimised by the BSF. Immunity is being afforded the BSF by virtue of their status as "armed forces" not prosecutable in civilian courts, by interminable delays in the investigative process and by deficiencies in the judicial system; this frustrates efforts by victims and their families to obtain redress. It therefore remains firmly the duty of the Central Government to act decisively to punish the flouting of laws and to conduct meaningful institutional reviews. Insofar as the BSF cannot be rehabilitated, it must be forcibly and dramatically reconstituted to reflect and embody the needs and aspirations of the Indian people to democratic governance, rule of law and a lasting peace.
The National Human Rights Commission in New Delhi has made a few recommendations concerning practices of torture and extrajudicial killings by the BSF; these include financial compensation for victims and their families. Yet these measures are, at best, token gestures denouncing the brutality of the BSF, much less guarantees for the impoverished against acts of impunity by the paramilitary force. True change can only be effected through policies and laws enacted and enforced by the state and central authorities. The police who administer the area, for instance, must be given the mechanisms and mandate with which to challenge, investigate and prosecute the irresponsible and violent acts of the BSF. Only by so doing can the Indian government fulfil its commitment to rule of law (ensuring the equality of all individuals before the law and their entitlement to equal protection by the law). Without such intervention, the people of West Bengal and the most vulnerable sectors of society in particular – women, children, the elderly, the illiterate, religious minorities and the impoverished – 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.
I therefore demand that:
1. The BSF personnel responsible for Jiarul's murder are identified, thoroughly and impartially investigated by a commission appointed by the Central Government and punished severely if found guilty;
2. Jiarul is cleared of his alleged involvement with illegal cattle smuggling operations along the Indo-Bangladesh border;
3. Charges are brought against the BSF for attempting to destroy or remove evidence of the murder;
4. Jiarul's family is paid adequate compensation by the government for physical, psychological and pecuniary hurt resulting from his murder;
5. Adequate and pre-emptive protection is provided to Jiarul's family and witnesses, who may be subject to retaliatory attacks by armed BSF personnel;
6. The central government formulate concrete plans to introduce urgently needed reforms and discipline amongst its paramilitary forces, particularly the BSF, which has already been implicated in countless cases of violence against citizens of India;
7. The Ministry of Home Affairs should enforce adherence to “Basic Principles on the Use of Force and Firearms by Law Enforcement Officials”, a document drawn up by the United Nations in September 1990, amongst paramilitary forces;
8. The central government introduce more checks and balances within the policing system by according the police powers that are actually (not theoretically) equal to or greater than the BSF, which is by definition a paramilitary force with a specific mandate to regulate borders only;
9. The central government place an emphasis on 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 also 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
North 24 Parganas
Noapara, Moyna, Barasat
700 125, West Bengal
INDIA
Thank you
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
