INDIA : ROBBED OF SLEEP AND FREEDOM, ILLEGAL ARREST, DETENTION AND FABRICATION OF CHARGES IN WEST BENGAL

[Please write to the authorities mentioned below demanding an investigation into this case. Mr Jalil Sardar and Mr Ramjan Tarafdar should be immediately released if evidence of their involvement in the murder of the BSF jawan cannot be produced. The victims and their families should be adequately compensated for the ill-treatment and unlawful arrest and detention suffered at the hands of the BSF and police officers. The community must furthermore be assured that such acts of violence and impunity will not occur again in the future, or, if they do, that they will be capably checked by mechanisms built into the justice system to address such abuse of authority.]

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From: AHRC Urgent Appeals <listadmin@ahrchk.net>

Date: Mon, Jun 4, 2012 at 4:16 AM

Subject: INDIA: Robbed of sleep and freedom: illegal arrest, detention and fabrication of charges in West Bengal

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ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-094-2012

4 June 2012

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INDIA: Robbed of sleep and freedom: illegal arrest, detention and fabrication of charges in West Bengal

ISSUES: Torture; inhuman and degrading treatment; religious discrimination; impunity; violence; police negligence; arbitrary arrest and detention; fabrication of charges

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The Asian Human Rights Commission (AHRC) has received information from MASUM concerning the illegal arrest, detention and torture of Mr Jalil Sardar and Mr Ramjan Tarafdar by personnel from Swarupnagar Police Station, Baduria Police Station and Kaijuri BSF Camp. Unlawful arrest and detention, torture, religious discrimination, fabrication of charges and a culture of impunity amongst law enforcement and paramilitary agencies are features of everyday life for many Indian people. Such acts violate a human being's inherent and fundamental right to life, liberty and security of person and are oppressive, patently unjust and contemptible. We urge you to write in to appeal to the relevant authorities to take actions against the officers responsible for these crimes against the two men. In so doing, we hope to not only assist these victims but countless others by encouraging the central government to strengthen rule of law throughout the land.

CASE NARRATIVE:

Around 11.30pm on 14 February 2012, Mr Jalil Sardar was asleep at home when a group of 30-40 officers from Swarupnagar Police Station, Baduria Police Station and the Kaijuri BSF Camp arrived in four cars and forcibly entered the house. They raided the victim's house and assaulted him about the neck with their fists, verbally abusing him all the while. Ms Sufia Bibi, the wife of Jalil's older brother, Mr Jalal Sardar, tried to save the victim from the onslaught but she was immediately hit with a wooden stick and injured her hand. The officers then forced Jalil to get into one of their cars.

In the meantime, other officers had caught hold of Mr Ramjan Tarafdar, Jalil's brother-in-law who had been visiting the victim's family. The officers brutally beat Ramjan brutally with wooden sticks and rifle butts. Mr Ananda Mohan, Officer-in-charge of Swarupnagar Police Station, threatened Ms Sufia Bibi "serious consequences" if she failed to bring her husband Mr Jalal Sardar and her son to Swarupnagar Police Station. The victims, Jalil and Ramjan, were taken to the police station. The officers neither produced a memo ordering the arrest nor disclosed the reason for taking the men into custody.

The following day (15 February 2012), Ms Manoara Bibi (wife of Jalil) and Mr Taravan Bibi (wife of Ramjan) went to the Basirhat Court and were informed that their husbands had been produced in court. They also discovered that their husbands had been implicated by the police in several criminal cases. The family members of the victims firmly believe that the charges against the two men had been fabricated.

MASUM's fact-finding team gathered information that both men were accused in

1. Swarupnagar Police Station Case No. 36 dated 24 January 2012 under Sections 341/188/325/353/413/414 of the Indian Penal Code and Section 14 of the Foreigners Act, and

2. Swarupnagar Police Station Case No. 44 dated 30 January 2012 under Section 186/188/307/325/341/353/413/414 of the Indian Penal Code.

Although Jalil and Ramjan are Indian citizens and were able to supply the court documents proving so, the officers of Swarupnagar Police Station arrested the two under false charges under the instructions from the BSF.

MASUM sent a team to speak to the locals and the families of the victims who stated categorically that the men were innocent of the charges being laid against them. The police and the BSF appear to be arbitrarily arresting individuals for the alleged murder of a BSF jawan, terrorising the community with the aid of the local police.

On the 27 February, a written complaint signed by 255 persons from the community was submitted before the Sub-Divisional Police Officer (SDPO) of Basirhat. This complaint explained the entire incident that occurred on 14 February at the house of the victim, pleading the innocence of the victims. The complaint was duly signed and recommended by the Upaprodhan (Deputy Head) of Kaijuri Gram Panchayat and member of Panchayat Samiti Swarupnagar, but no action has been taken to date.

The above case highlights several systemic failures in the administration of North 24 Parganas in West Bengal:

1. The lack of transparency and accountability in the operation of armed forces, which breeds impunity and disregard for the law;

2. The pervasive, excessive , and oftentimes senseless, use of violence by provincial authorities against individuals within their jurisdiction;

3. The failure to react in a measured manner towards a woman;

4. The lack of enforcement and/or poor communication by India's central government and judiciary of basic protocol amongst law enforcement agencies and paramilitary forces such as the BSF;

5. The lack of responsiveness of the police to aggrieved locals and an execrable apathy to the plight of the victims and their families;

6. The failure to distinguish the vastly different geographical and legal mandates of the police and the BSF

Without state intervention, it becomes increasingly unlikely that Jalil and Ramjan will be released or properly acquitted of the false charge brought against them. Their extended detention in jail is illegal and unconstitutional. The grounds on which they have been arrested has not been disclosed, not has evidence been presented to prove their involvement in the alleged murder of the BSF officer. It is also unknown if the victims have been humanely treated in jail. As such, we urge the authorities to act upon these findings and quickly secure the release of Jalil and Ramjan. A proper inquiry should be undertaken as to the events which caused the BSF and police officers to suspect them in the first place and into why such excessive force was used to arrest and detain two helpless and unarmed men. By demonstrating impartiality, objectivity and respect for procedures established by law, the authorities can set important precedent for the police to follow, thereby improving the functionality of the justice institutions around India. State-sponsored reformation of policing practices will bring about a more sustainable change in favour of protecting the rights of the individual from abuse.

ADDITIONAL INFORMATION:

Authority was abused and laws broken the night Jalil and Ramjan were rudely taken from their sleep and deprived of their constitutional and legal rights. The Indian Constitution which came into force in 1950 stated clearly an individual's fundamental rights to liberty and equality before the law regardless or religion, sex, place of birth and caste. Article 21 stated that no deprivation of life and liberty was permitted except according to procedures established by law. According to the Indian Penal Code, 1860, false charge of offence made with intent to injure (Section 211), commitment for trial or confinement by person having authority who knows that he is acting contrary to law (Section 220), voluntarily causing hurt (Section 321), voluntarily causing hurt to extort confession (Section 330), wrongful confinement (Section 342), wrongful confinement for ten days or more (344), wrongful confinement to extort confession (Section 348) and assault or criminal force otherwise than on grave provocation (Section 353) are all cognizable crimes. No evidence or reason was presented at the time of the arrest to the victims' families to justify the belief that Jalil and Tarafdar were murderers of a BSF officer. The officers that came to arrest the two victims were also excessive in number and used unnecessary force, even against Ms Sufia Bibi, who was a woman simply trying to stop the violence against her brother-in-law.

International law was also disregarded in the treatment of the two victims and their families. The 1948 Universal Declaration of Human Rights (UDHR) speaks of the rights of individuals to life, liberty and security of person (Article 3), against torture and other cruel, inhuman and degrading treatment (Article 5), to recognition everywhere as a person before the law and to equal protection under the law without discrimination (Article 6 and 7), against arbitrary arrest and detention (Article 9), to fair and public hearing by an independent and impartial tribunal (Article 10) and to be innocent until proven guilty (Article 11).

In 1979 India acceded to the 1966 International Covenant on Civil and Political Rights (ICCPR), which reiterated many of the fundamental rights of the individual laid out in the UDHR and bound state parties to acting on their belief in these rights. Some of the rights and liberties included in the ICCPR include also the right against torture and other cruel, inhuman and degrading treatment (Article 7) and to humane treatment if deprived of liberty (Article 10). Article 9(1) speaks of the right to liberty and security of person, against arbitrary arrest and deprivation of liberty "except on such grounds and in accordance with such procedure as established by law". Article 9(2) requires that law enforcement agents inform the person under arrest of the reasons for his arrest. Individuals are entitled to proceedings before court to decide on the lawfulness of his detention in the first place and to order his release if the detention was illegal (Article 9(4)). Article 14 confirmed the principle of "innocent until proven guilty" and the right to fair and public hearing before an impartial and independent tribunal. 14(3) emphasises the necessity of informing the individual under arrest of the charges being brought against him, of providing the individual adequate time and facilities to prepare for his defence, the right to be tried without delay and no not be compelled to confess guilt. In 14(5), every individual convicted has a right to having his conviction and sentence reviewed by a higher tribunal. The Indian state is bound by international law to upholding these rights. Yet none of these legal safeguards and constitutional guarantees was afforded Jalil and Tarafdar.

It remains to be seen if another right enumerated in the UDHR to effective remedy by competent national tribunals for acts violating fundamental rights granted by the constitution and by law (Article 8) will be secured for these two victims of unlawful arrest and detention. This right is yet more specifically stated in the ICCPR as constituting an enforceable compensation if the individual had been a victim of unlawful arrest (Article 9(5)). Detention of these two victims has deprived their families of husbands, sons, brothers and fathers. It has also cost the families their breadwinners. The men are but the first two in a larger group who are suffering from the impunity of officers only too eager to seek a scapegoat for an alleged murder. The men and their families deserve due process and fair trial. They will also deserve release, compensation and reassurances if found innocent.

SUGGESTED ACTION:

Please write to the authorities mentioned below demanding an investigation into this case. Mr Jalil Sardar and Mr Ramjan Tarafdar should be immediately released if evidence of their involvement in the murder of the BSF jawan cannot be produced. The victims and their families should be adequately compensated for the ill-treatment and unlawful arrest and detention suffered at the hands of the BSF and police officers. The community must furthermore be assured that such acts of violence and impunity will not occur again in the future, or, if they do, that they will be capably checked by mechanisms built into the justice system to address such abuse of authority.

The AHRC is also writing separate letters to the Chairperson of the UN Working Group of Arbitrary Arrests and Detention and the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment calling for further intervention in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear __________,

INDIA: Please investigate the illegal arrest and detention of, as well as the assault upon, Mr Jalil Sardar and Mr Ramjan Tarafdar, residents of Baduria Village under the jurisdiction of Swarupnagar Police Station, North 24 Parganas, West Bengal, by officers from Swarupnagar Police Station, Baduria Police Station and the Kaijuri BSF Camp on 14 February 2012

Name of victim:

1. Mr Jalil Sardar, son of late Jasimuddni Sardar, 50 years old, of the Muslim faith and a mason by occupation

2. Mr Ramjan Tarafdar, son of Abdul Tarafdar, 41 years old, of the Muslim faith

Both are residents of Baduria Village under the jurisdiction of Swarupnagar Police Station, North 24 Parganas in West Bengal.

Names of alleged perpetrators:

1. Mr Ananda Mohan, Officer-in-charge, and several police personnel of Swarupnagar Police Station

2. Police personnel of Baduria Police Station

3. BSF jawans of Kaijuri Camp of the BSF

The perpetrators were 30-40 men strong when they raided the house of the victim

Date of incident: 11.30pm on 14 February 2012

Place of incident: The residence of the victim, Mr Jalil Sardar, Baduria Village under the jurisdiction of Swarupnagar Police Station, North 24 Parganas, West Bengal

I am writing to express concern regarding another case of illegal arrest and detention by BSF and police officers from Swarupnagar Police Station, Baduria Police Station and Kaijuri BSF Camp around 11.30pm on 14 February 2012 of two men, Mr Jalil Sardar and Mr Ramjan Tarafdar, from their home in Baduria Village.

Mr Jalil Sardar was asleep at home when a group of 30-40 officers from Swarupnagar Police Station, Baduria Police Station and the Kaijuri BSF Camp arrived in four cars and forcibly entered the house. They raided the victim's house and assaulted him about the neck with their fists, verbally abusing him all the while. Ms Sufia Bibi, the wife of Jalil's older brother, Mr Jalal Sardar, tried to save the victim from the onslaught but she was immediately hit with a wooden stick and injured her hand. The officers then forced Jalil to get into one of their cars.

MASUM's fact-finding team gathered information that both men were accused in

1. Swarupnagar Police Station Case No. 36 dated 24 January 2012 under Sections 341/188/325/353/413/414 of the Indian Penal Code and Section 14 of the Foreigners Act, and

2. Swarupnagar Police Station Case No. 44 dated 30 January 2012 under Section 186/188/307/325/341/353/413/414 of the Indian Penal Code.

The above case highlights several systemic failures in the administration of North 24 Parganas in West Bengal:

1. The lack of transparency and accountability in the operation of armed forces, which breeds impunity and disregard for the law;

2. The pervasive, excessive, and oftentimes senseless, use of violence by provincial authorities against individuals within their jurisdiction;

3. The failure to react in a measured manner towards a woman;

4. The lack of enforcement and/or poor communication by India's central government and judiciary of basic protocol amongst law enforcement agencies and paramilitary forces such as the BSF;

5. The lack of responsiveness of the police to aggrieved locals and an execrable apathy to the plight of the victims and their families;

6. The failure to distinguish the vastly different geographical and legal mandates of the police and the BSF

Yet without state intervention, it becomes increasingly unlikely that Jalil and Ramjan will be released or properly acquitted of the false charge brought against them. Their extended detention in jail is illegal and unconstitutional. The grounds on which they have been arrested has not been disclosed, not has evidence been presented to prove their involvement in the alleged murder of the BSF officer. It is also unknown if the victims have been humanely treated in jail. As such, we urge the authorities to act upon these findings and quickly secure the release of Jalil and Ramjan. A proper inquiry should be undertaken as to the events which caused the BSF and police officers to suspect them in the first place and into why such excessive force was used to arrest and detain two helpless and unarmed men. By demonstrating impartiality, objectivity and respect for procedures established by law, the authorities can set important precedent for the police to follow, thereby improving the functionality of the justice institutions around India. State-sponsored reformation of policing practices will bring about a more sustainable change in favour of protecting the rights of the individual from abuse.

I therefore demand that:

1. The alleged murder of the BSF officer is properly and transparently investigated by a neutral agency;

2. The officers who had arrested, beaten and detained the two victims provide reasons and evidence for suspecting the two victims, failing which punitive action should be brought against them for acting without ground and with complete impunity;

3. The officer-in-charge who orchestrated this arrest give reason for the excessive numbers and force used in the arrest of these two victims, failing which he should be punished for intimidating and physically abusing the two victims and their families;

4. The officer-in-charge of Swarupnagar Police Station who verbally threatened Ms Sufia Bibi be disciplined for acts of intimidation and violence against women;

5. The two victims are immediately released on bail to be reunited with their families and their names cleared as soon as possible from suspicion of involvement in the murder of the BSF officer;

6. The two victims and their families are adequately compensated for the physical and psychological torment endured due to the unlawful arrest, physical assault and protracted detention as well as for the loss of income for the months during which the two men were detained;

7. Ms Sufia Bibi is compensated for the injury done to her hand during the violent arrest of the two men;

8. The victims and the larger community who testified to the victims' innocence are assured by the authorities that their security will not be compromised by retaliatory attacks from the BSF or the police officers from Swarupnagar and Baduria Police Stations;

9. The central government reiterate the importance of legal, constitutional and human rights during the training and briefing of police officers, members of the judiciary and the paramilitary forces' personnel

Yours sincerely,

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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