India: Religious Discrimination By The BSF

Asian Human Rights Commission – Urgent Appeals Programme

Urgent Appeal Case: AHRC-UAC-118-2012

Send an Appeal Letter

3 July 2012
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India: Flaunting Unenlightened Attitudes – Religious Discrimination By The BSF

ISSUES: Fabricated charges; impunity; inhuman and degrading treatment; religious discrimination; police inaction; threats and intimidation; violence
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM concerning the harassment and intimidation of Mr Saiful Molla and Mr Khalil Mondal by BSF personnel attached to Kaijuri BSF Camp on 9.30pm on 21 April 2012 and 3.30pm on 22 April 2012. Unlawful arrest and detention, harassment, degrading treatment, religious discrimination and a culture of impunity amongst law enforcement agencies are features of everyday life for many Indian people. Such violate a human being's inherent and fundamental rights to 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 investigate and punish the officers responsible for such unlawful acts and to request that the rights of individuals to liberty and security of person, as well as to be treated equally and protected equally without discrimination before the law. In so doing, we hope to not only assist Saiful and Khalil but countless others by encouraging the Indian government to renew its commitment to provide for and protect its people and strengthen rule of law throughout the land.

CASE NARRATIVE:

An investigation by MASUM has uncovered the following facts.

At about 9.30pm on 21 April 2012, Mr Saiful Molla was returning home from his shop when he was stopped by the Assistant Commandant of Kaijuri BSF Camp. The BSF officer verbally abused him and accused him of being involved in cattle smuggling. He then tried to take Saiful back to the BSF forcefully. The commotion attracted the attention of locals, who protested the unlawful arrest. The BSF officer left without Saiful.

The next day (22 April), at approximately 3.30pm, two BSF vehicles containing 30-40 BSF jawans were sent on the instruction of the Assistant Commandant of Kaijuri BSF Camp to raid the residence of Mr Khalil Mondal. The men were led by an SI of Kaijuri BOP and one SI of Gabarda BOP. Khalil was also accused of cattle smuggling and the BSF personnel tried to take Khalil back to BSF camp by force. The locals once again gathered there and began protesting such harassment of innocent villagers. A BSF jawan brought out the Quran Sharif, the holy book for those of the Islamic faith, and asked Khalil to prove his innocence by balancing the book on his head. The request was a deliberate insult to Khalil's religion and constitutes a form of religious discrimination. Thereafter the BSF personnel travelled to Saiful's house and once again entered it by force, verbally abusing the female members of the house and demanding they attend BSF camp.

Mr Khasrul Islam, local leader of the ruling party, All India Trinamool Congress (AITC) and father-in-law of Saifal, lodged a written complaint against the perpetrators before the Sub-Divisional Police Officer of Basirhat, North 24 Parganas on 27 April. Yet to date no action has been taken by the police to investigate and prosecute the perpetrator BSF jawans.

On 1 May, the Assistant Commandant of Kaijuri BSF BOP threatened Saiful over the phone with "dire consequences" for reporting the incident to the police. The Assistant Commandant also threatened to fabricate charges against Saiful. Saiful again reported the matter to the Superintendent of Police of Barasat, North 24 Parganas the next day and provided in that report the mobile number and the times the calls were received. Saiful also requested for adequate police protection against retaliation from the BSF personnel implicated in his report, yet this was not provided him.

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

1. Law enforcement has not fought against the uncivilised and undisciplined religious prejudice and intolerance that prevents them from discharging their legal and moral duty to those living within their jurisdiction, and makes them unable to live as moral exemplars to the community;
2. The lack of transparency, accountability and discipline in the police force, which breeds impunity and disregard for the law;
3. The pervasive, excessive, and oftentimes senseless, use of violence and intimidation by provincial authorities against individuals within their jurisdiction;
4. The lack of enforcement and/or poor communication by India's central government and judiciary of basic protocol (for making arrests, interrogating, detaining and trying suspects) amongst law enforcement agencies and paramilitary forces such as the BSF;
5. The lack of responsiveness of the police to aggrieved locals due to collusion with or fear of the BSF, or due to an execrable apathy to the victims' plight.

There was no reason provided for the harassment of Saiful and Khalil – no evidence was provided to suggest that the two victims were guilty of the charges brought against them by the BSF of cattle smuggling. The two men were victims of most arbitrary action by the BSF. The BSF also resorted to numerical advantage when they realised the locals were attempting to defend the two victims – this constitutes, minimally, a psychological type of violence because the intention was clearly to intimidate the locals into abandoning their defence of the two men. This attempt to brutally quash valid and peaceful protest and to crush the community's spirit speaks volumes of the complete impunity and violence with which law enforcement agencies operate against the very people they are tasked to protect.

Religious, racial, linguistic caste and other minorities are particularly vulnerable to discrimination and need extra protection from state agencies. Law enforcement agencies have instead quite ironically become perpetrators of this unenlightened intolerance and openly abuse constitutional guarantees of individuals' rights to freedom of religious affiliation. This threatens the integrity of the judicial system by eroding the faith of the people in law enforcement and in the various mechanisms designed to serve justice and peace (e.g. the police and paramilitary). Such acts of impunity, contempt for law and religious discrimination also threaten the (functioning of the) entire Indian state. It undermines the authority of local authorities and the central government and necessarily detracts from their credibility in the eyes of the citizenry. Violence against women is another important issue that the authorities need to address. The potential for social unrest increases exponentially as each individual's feelings of insecurity and resentment for an unaccountable and lawless government increase. It is therefore critical that the Indian authorities act today to renew their commitment to serving justice and the peoples of India.

Without state intervention, it is unlikely that Saiful, Khalil and their families will ever see their BSF tormentors brought to justice. As such, we urge the authorities to act upon these findings and move quickly to assist the two victims and their families. By demonstrating impartiality, objectivity and respect for procedures established by law, the authorities can set important precedent for the BSF and the police to follow, thereby improving the functionality of the justice institutions around India.

ADDITIONAL INFORMATION:

The danger posed to India and her peoples by an undisciplined and violent paramilitary force cannot be overstated. The BSF has demonstrated significant disregard for several fundamental laws in their actions toward Saiful and Khalil. The 1950 Indian Constitution, the 1860 Indian Penal Code, the 1973 Criminal Procedure Code and the Border Security Act (BSA) are key legal documents that all state agents and agencies should strictly adhere to when discharging their duties. It must be recognised that there is no place for religious intolerance and discrimination in criminal or human rights law. The unreasonable persecution of Saiful and Khalil through baseless accusations, threats and intimidation and degrading treatment must be checked by a commitment amongst law enforcement and in the central government to eradicate such practices.

Religious disharmony and sectarian violence poses a significant threat to national unity. The Indian Penal Code (IPC) states in Section 153 A and B that it is a criminal offence against public tranquillity to promote enmity on grounds of religion and to commit acts prejudicial to the maintenance of harmony. "Scurrilous attack on basic religious books" is a recognisable component of this cognisable crime, and may be punished with three years' imprisonment and/or a fine. The BSF jawan who ridiculed Khalil by asking him to prove his innocence by balancing the Quran on his head is also guilty of criminal insult intended to provoke breach of peace, a crime which may be punished with a term of two years and/or a fine under Section 504 of the IPC. It is ironic that the BSF, invested with the important responsibility to protect India's geopolitical integrity, has acted in a manner that incites sectarian divisions and social disunity. On the other hand, the reality of a community coming together to protect one of its own confronts us with the knowledge that the brutality of the BSF is an affront not just to the victims, or even to a religious minority community, but to all people. Such senseless abuse provokes public outrage and unifies the community even where racial, religious or cultural differences exist. The Central Government must also display its disapprobation of religious intolerance and any form of violence against the individual in accordance with India's basic laws, as well as to honour its international commitments.

The behaviour of the BSF reveals an obvious immaturity, lack of discipline and lack of commitment to duty, as well as a culture of violence and impunity. The officers involved used criminal force against Saiful and Khalil under Section 349 and 357 of the IPC through repeated attempts to illegally arrest them on fabricated or unsubstantiated charges through physical force. Section 503 further outlaws acts of criminal intimidation intended to cause a person to omit an act that person is legally entitled to do – in this case, threats by the BSF to prevent Saiful and Khalil from lodging complaints before the police against the unlawful and arbitrary abuse endured at the hands of the BSF. The intrusion into Saiful's house is also criminal because the BSF were not in possession of a search warrant. Their insult to the modesty of the females in that household through calls for the women to present themselves at the BSF camp also violates the law laid out in Section 509 of the IPC. Finally, the BSF have brought charges against Saiful and Khalil without reasonable suspicion, credible information or evidence and so have defamed the two victims under Section 683 of the IPC. The illegality of these actions are further affirmed by clauses in the Criminal Procedure Code (CrPC) that requires very specific conditions to be met before arrests can be made without warrant. This includes "reasonable complaint or credible information received, or reasonable suspicion exists" of Saiful and Khalil's involvement in cattle smuggling (Chapter V, Section 41, CrPC). Additionally, the two victims have a right to be informed of the full particulars of the offence for which they were being arrested and other grounds for such arrest under Section 50 of the CrPC. Neither of these procedural guidelines was complied with.

Paramilitary forces are to enforce the law and to be moral exemplars to the community they police. Minimally, therefore, these armed forces should adhere to state law. In addition, they are to adhere to codes and practices stipulated by acts and ordinances created specifically to regulate their activities and prevent abuses 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 the inherent dignity of a human being. Assault is a cognizable criminal offence, and there are legal ramifications resulting from such blatant contempt of rule of law by forces armed, funded and, theoretically, directed by the Central Government. And 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. 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. Yet today the BSF acts with shocking impunity and a disregard for the sanctity of human life and dignity. The Central Government has consistently refused 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.

A Constitution should be the document upon which the nation's many other laws is built, all in the defence of the individual against the overwhelming power of the state. Yet branches and affiliates of the government disregard this most fundamental law. Freedom of conscience and the profession, practice and propagation of religion is assured by Article 25 of the Indian Constitution, and Article 15 further prohibits discrimination on the grounds of religion, yet the BSF openly mocked the Islamic faith. The BSF required of Khalil the most appalling, unreasonable and irrational "test" of his innocence – to balance the Quran on his heads. How such a test could prove or disprove Khalil's involvement in cattle smuggling is unclear. What is obvious is the fact that the test has greatly diminished the respectability of law enforcement in India. That the BSF resorts to such immature and ludicrous methods to intimidate, debase and subjugate members of a religious minority is evidence enough of inadequate discipline and unenlightened attitudes amongst the forces. The incident is also an indictment of the failure of authorities to inculcate values of fairness, self-restraint, religious tolerance and harmony amongst the paramilitary forces. The BSF's attempt to use physical and numerical force to apprehend the two men despite the constitutional guarantee to personal liberty in Article 21 was only thwarted by the timely aid of other concerned citizens. State agents have not only divested themselves of the responsibility of protecting individual rights and liberties but have even become the main perpetrators of abuse. This is cause for alarm both in the populace, members of whom daily live in fear of unpredictable, unreasonable and violent acts by the paramilitary against themselves, and at the level of the Central Government, which is no longer able to maintain even the semblance of control over those armed forces.

When the BSF bullied the two victims, they also demonstrated disregard for international law as well. As state-endorsed paramilitary forces, this has severe implications for the reputation of India amongst the international community. The 1948 Universal Declaration of Human Rights (UDHR) proclaims equality of all to rights without religious or other distinctions (Article 2), the right of individuals to life, liberty and security of person (Article 3), against torture and other cruel, inhuman and degrading treatment (Article 5), to equal protection under the law without discrimination (Article 6 and 7) and freedom of thought, conscience and religion (Article 18). These are entitlements inherent in every person, but entitlements that were denied Saiful and Khalil. These are entitlements the Indian state promised to protect. The BSF's practices are incongruous with such professions by the federal authorities.

In 1979, India acceded to the 1966 International Covenant on Civil and Political Rights (ICCPR). This covenant reiterated many of the fundamental rights of the individual laid out in the UDHR and legally bound state parties to act on their belief in these rights. Some of the rights and liberties included in the ICCPR include the right against torture and other cruel, inhuman and degrading treatment (Article 7). Article 9(2) requires that law enforcement agents inform the person under arrest of the reasons for his arrest. 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. Article 18 declares the individual's right to freedom of thought, conscience and religion. Regardless of religious or other affiliations, all individuals are equal before the law and entitled to equal protection of the law without discrimination (Article 26); religious minorities may also profess and practice their faith freely (Article 27). Article 4 explicitly states that not even in times of public emergency may religion be used as a pretext for discriminatory measures inconsistent with the country's obligations under international law. The Indian state is bound by international law to upholding these rights. Yet none of these legal safeguards and constitutional guarantees was afforded the two victims. Again, there is tension between the reality of the civilian and the many promises the Central Government made both to its people and to the international community.

This case illustrates how the BSF operates, and is permitted to operate, with impunity and in utter defiance of these laws. Saiful and Khalil's experience has thankfully not yet erupted into far graver incidents of violence that have characterised many of the encounters between the BSF and other civilians. Yet this case also adds to a growing corpus of casework that evidences serious institutional flaws in the Indian justice system. 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. Contempt for the law is criminal, 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 entire Indian nation.

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. The police stations charged with the administration of geographically well-defined districts possess the legal mandate to pursue incidents and reports of violence and discrimination against their constituents, yet do not, particularly where the paramilitary is involved. This reluctance and inaction is devastating the faith of the Indian people in the criminal justice system. With the legitimacy and puissance of the judiciary now so frequently and vociferously challenged both by the public and by institutions within the purview of the government, it will become increasingly difficult for the Central Government to restore rule of law and to protect the integrity of its borders.

It remains to be seen if another 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 Saiful and Khalil, only two in a long string of people long terrorised by the BSF. The threats and violence by the BSF against Saiful and Khalil has frightened and dismayed not only the victims and their families but the wider community, which bore witness to and actively fought the criminal and arbitrary actions of the BSF. The democratic credentials of India, which has assumed the name of Republic, is threatened by the corrosive lawlessness of the paramilitary and law enforcement. The state has a moral and legal responsibility to protect its people, even against itself – it is for this reason courts were established and laws formulated. Civil society can only react defensively to perceived injustices; it remains firmly the duty of the Central Government to act decisively to punish the flouting of laws and to conduct meaningful institutional reform.

SUGGESTED ACTION:
Please write to the authorities mentioned below demanding an investigation into this case. Mr Saiful Molla and Mr Khalil Mondal should be immediately and publicly apologised to for their public humiliation at the hands of the BSF. The right to freedom of thought, conscience and religion must be assured and enforced through the implementation of adequate laws and other safeguards. The two victims, their families and the community must be protected against recriminations by the BSF and 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 UN Special Rapporteur on Freedom of Religion or Belief and the UN Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment calling for further intervention in this case.

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Send an Appeal Letter

SAMPLE LETTER:

Dear __________,

INDIA: Please investigate religious discrimination by BSF in North 24 Parganas against two men of the Muslim faith (Mr Saiful Molla and Mr Khalil Mondal)

Name of victims:
1. Mr Saiful Molla, son of late Akbar Molla, 29 years old, of the Muslim faith and a businessman
2. Mr Khalil Mondal, son of late Nabab Molla
Both victims live at Sonpur village under the jurisdiction of Swarupnagar Police Station in North 24 Parganas

Names of alleged perpetrators:
1. Assistant Commandant of Kaijuri BSF Camp
2. SI of Kaijuri BOP
3. SI of Gabarda BOP
They were accompanied by 30-40 BSF jawans who raided the victims' houses.

Date of incident: 9.30pm on 21 April 2012 and 3.30pm on 22 April 2012
Place of incident: In the houses of the victims and on the road when Mr Saiful Molla was returning home around 9.30pm on 21 April.

I am writing to express concern regarding a case of violence and religious persecution against Mr Saiful Molla and Mr Khalil Mondal on 21 and 22 April 2012 by the Assistant Commandant of Kaijuri BSF Camp, the SI of Kaijuri BOP, the SI of Gabarda BOP and the thirty to forty BSF jawans who had participated in an illegal raid of Khalil's house.

At about 9.30pm on 21 April 2012, Mr Saiful Molla was returning home from his shop when he was stopped by the Assistant Commandant of Kaijuri BSF Camp. The BSF officer verbally abused him and accused him of being involved in cattle smuggling. He then tried to take Saiful back to the BSF forcefully. The commotion attracted the attention of locals, who protested the unlawful arrest. The BSF officer left without Saiful.

The next day (22 April), at approximately 3.30pm, two BSF vehicles containing 30-40 BSF jawans were sent on the instruction of the Assistant Commandant of Kaijuri BSF Camp to raid the residence of Mr Khalil Mondal. The men were led by an SI of Kaijuri BOP and one SI of Gabarda BOP. Khalil was also accused of cattle smuggling and the BSF personnel tried to take Khalil back to BSF camp by force. The locals once again gathered there and began protesting such harassment of innocent villagers. A BSF jawan brought out the Quran Sharif, the holy book for those of the Islamic faith, and asked Khalil to prove his innocence by balancing the book on his head. The request was a deliberate insult to Khalil's religion and constitutes a form of religious discrimination. Thereafter the BSF personnel travelled to Saiful's house and once again entered it by force, verbally abusing the female members of the house and demanding they attend BSF camp.

Mr Khasrul Islam, local leader of the ruling party, All India Trinamool Congress (AITC) and father-in-law of Saifal, lodged a written complaint against the perpetrators before the Sub-Divisional Police Officer of Basirhat, North 24 Parganas on 27 April. Yet to date no action has been taken by the police to investigate and prosecute the perpetrator BSF jawans.

On 1 May, the Assistant Commandant of Kaijuri BSF BOP threatened Saiful over the phone with "dire consequences" for reporting the incident to the police. The Assistant Commandant also threatened to fabricate charges against Saiful. Saiful again reported the matter to the Superintendent of Police of Barasat, North 24 Parganas the next day and provided in that report the mobile number and the times the calls were received. Saiful also requested for adequate police protection against retaliation from the BSF personnel implicated in his report, yet this was not provided him.

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

1. Law enforcement has not fought against the uncivilised and undisciplined religious prejudice and intolerance that prevents them from discharging their legal and moral duty to those living within their jurisdiction, and makes them unable to live as moral exemplars to the community;
2. The lack of transparency, accountability and discipline in the police force, which breeds impunity and disregard for the law;
3. The pervasive, excessive, and oftentimes senseless, use of violence and intimidation by provincial authorities against individuals within their jurisdiction;
4. The lack of enforcement and/or poor communication by India's central government and judiciary of basic protocol (for making arrests, interrogating, detaining and trying suspects) amongst law enforcement agencies and paramilitary forces such as the BSF;
5. The lack of responsiveness of the police to aggrieved locals due to collusion with or fear of the BSF, or due to an execrable apathy to the victims' plight.

There was no reason provided for the harassment of Saiful and Khalil – no evidence was provided to suggest that the two victims were guilty of the charges brought against them by the BSF of cattle smuggling. The two men were victims of most arbitrary action by the BSF. The BSF also resorted to numerical advantage when they realised the locals were attempting to defend the two victims – this constitutes, minimally, a psychological type of violence because the intention was clearly to intimidate the locals into abandoning their defence of the two men. This attempt to brutally quash valid and peaceful protest and to crush the community's spirit speaks volumes of the complete impunity and violence with which law enforcement agencies operate against the very people they are tasked to protect.

Religious, racial, linguistic caste and other minorities are particularly vulnerable to discrimination and need extra protection from state agencies. Law enforcement agencies have instead quite ironically become perpetrators of this unenlightened intolerance and openly abuse constitutional guarantees of individuals' rights to freedom of religious affiliation. This threatens the integrity of the judicial system by eroding the faith of the people in law enforcement and in the various mechanisms designed to serve justice and peace (e.g. the police and paramilitary). Such acts of impunity, contempt for law and religious discrimination also threaten the (functioning of the) entire Indian state. It undermines the authority of local authorities and the central government and necessarily detracts from their credibility in the eyes of the citizenry. Violence against women is another important issue that the authorities need to address. The potential for social unrest increases exponentially as each individual's feelings of insecurity and resentment for an unaccountable and lawless government increase. It is therefore critical that the Indian authorities act today to renew their commitment to serving justice and the peoples of India.

The danger posed to India and her peoples by an undisciplined and violent paramilitary force cannot be overstated. The BSF has demonstrated significant disregard for several fundamental laws in their actions toward Saiful and Khalil. The 1950 Indian Constitution, the 1860 Indian Penal Code, the 1973 Criminal Procedure Code and the Border Security Act (BSA) are key legal documents that all state agents and agencies should strictly adhere to when discharging their duties. It must be recognised that there is no place for religious intolerance and discrimination in criminal or human rights law. The unreasonable persecution of Saiful and Khalil through baseless accusations, threats and intimidation and degrading treatment must be checked by a commitment amongst law enforcement and in the central government to eradicate such practices.

Religious disharmony and sectarian violence poses a significant threat to national unity. The Indian Penal Code (IPC) states in Section 153 A and B that it is a criminal offence against public tranquillity to promote enmity on grounds of religion and to commit acts prejudicial to the maintenance of harmony. "Scurrilous attack on basic religious books" is a recognisable component of this cognisable crime, and may be punished with three years' imprisonment and/or a fine. The BSF jawan who ridiculed Khalil by asking him to prove his innocence by balancing the Quran on his head is also guilty of criminal insult intended to provoke breach of peace, a crime which may be punished with a term of two years and/or a fine under Section 504 of the IPC. It is ironic that the BSF, invested with the important responsibility to protect India's geopolitical integrity, has acted in a manner that incites sectarian divisions and social disunity. On the other hand, the reality of a community coming together to protect one of its own confronts us with the knowledge that the brutality of the BSF is an affront not just to the victims, or even to a religious minority community, but to all people. Such senseless abuse provokes public outrage and unifies the community even where racial, religious or cultural differences exist. The Central Government must also display its disapprobation of religious intolerance and any form of violence against the individual in accordance with India's basic laws, as well as to honour its international commitments.

The behaviour of the BSF reveals an obvious immaturity, lack of discipline and lack of commitment to duty, as well as a culture of violence and impunity. The officers involved used criminal force against Saiful and Khalil under Section 349 and 357 of the IPC through repeated attempts to illegally arrest them on fabricated or unsubstantiated charges through physical force. Section 503 further outlaws acts of criminal intimidation intended to cause a person to omit an act that person is legally entitled to do – in this case, threats by the BSF to prevent Saiful and Khalil from lodging complaints before the police against the unlawful and arbitrary abuse endured at the hands of the BSF. The intrusion into Saiful's house is also criminal because the BSF were not in possession of a search warrant. Their insult to the modesty of the females in that household through calls for the women to present themselves at the BSF camp also violates the law laid out in Section 509 of the IPC. Finally, the BSF have brought charges against Saiful and Khalil without reasonable suspicion, credible information or evidence and so have defamed the two victims under Section 683 of the IPC. The illegality of these actions are further affirmed by clauses in the Criminal Procedure Code (CrPC) that requires very specific conditions to be met before arrests can be made without warrant. This includes "reasonable complaint or credible information received, or reasonable suspicion exists" of Saiful and Khalil's involvement in cattle smuggling (Chapter V, Section 41, CrPC). Additionally, the two victims have a right to be informed of the full particulars of the offence for which they were being arrested and other grounds for such arrest under Section 50 of the CrPC. Neither of these procedural guidelines was complied with.

Paramilitary forces are to enforce the law and to be moral exemplars to the community they police. Minimally, therefore, these armed forces should adhere to state law. In addition, they are to adhere to codes and practices stipulated by acts and ordinances created specifically to regulate their activities and prevent abuses 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 the inherent dignity of a human being. Assault is a cognizable criminal offence, and there are legal ramifications resulting from such blatant contempt of rule of law by forces armed, funded and, theoretically, directed by the Central Government. And 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. 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. Yet today the BSF acts with shocking impunity and a disregard for the sanctity of human life and dignity. The Central Government has consistently refused 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.

A Constitution should be the document upon which the nation's many other laws is built, all in the defence of the individual against the overwhelming power of the state. Yet branches and affiliates of the government disregard this most fundamental law. Freedom of conscience and the profession, practice and propagation of religion is assured by Article 25 of the Indian Constitution, and Article 15 further prohibits discrimination on the grounds of religion, yet the BSF openly mocked the Islamic faith. The BSF required of Khalil the most appalling, unreasonable and irrational "test" of his innocence – to balance the Quran on his heads. How such a test could prove or disprove Khalil's involvement in cattle smuggling is unclear. What is obvious is the fact that the test has greatly diminished the respectability of law enforcement in India. That the BSF resorts to such immature and ludicrous methods to intimidate, debase and subjugate members of a religious minority is evidence enough of inadequate discipline and unenlightened attitudes amongst the forces. The incident is also an indictment of the failure of authorities to inculcate values of fairness, self-restraint, religious tolerance and harmony amongst the paramilitary forces. The BSF's attempt to use physical and numerical force to apprehend the two men despite the constitutional guarantee to personal liberty in Article 21 was only thwarted by the timely aid of other concerned citizens. State agents have not only divested themselves of the responsibility of protecting individual rights and liberties but have even become the main perpetrators of abuse. This is cause for alarm both in the populace, members of whom daily live in fear of unpredictable, unreasonable and violent acts by the paramilitary against themselves, and at the level of the Central Government, which is no longer able to maintain even the semblance of control over those armed forces.

When the BSF bullied the two victims, they also demonstrated disregard for international law as well. As state-endorsed paramilitary forces, this has severe implications for the reputation of India amongst the international community. The 1948 Universal Declaration of Human Rights (UDHR) proclaims equality of all to rights without religious or other distinctions (Article 2), the right of individuals to life, liberty and security of person (Article 3), against torture and other cruel, inhuman and degrading treatment (Article 5), to equal protection under the law without discrimination (Article 6 and 7) and freedom of thought, conscience and religion (Article 18). These are entitlements inherent in every person, but entitlements that were denied Saiful and Khalil. These are entitlements the Indian state promised to protect. The BSF's practices are incongruous with such professions by the federal authorities.

In 1979, India acceded to the 1966 International Covenant on Civil and Political Rights (ICCPR). This covenant reiterated many of the fundamental rights of the individual laid out in the UDHR and legally bound state parties to act on their belief in these rights. Some of the rights and liberties included in the ICCPR include the right against torture and other cruel, inhuman and degrading treatment (Article 7). Article 9(2) requires that law enforcement agents inform the person under arrest of the reasons for his arrest. 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. Article 18 declares the individual's right to freedom of thought, conscience and religion. Regardless of religious or other affiliations, all individuals are equal before the law and entitled to equal protection of the law without discrimination (Article 26); religious minorities may also profess and practice their faith freely (Article 27). Article 4 explicitly states that not even in times of public emergency may religion be used as a pretext for discriminatory measures inconsistent with the country's obligations under international law. The Indian state is bound by international law to upholding these rights. Yet none of these legal safeguards and constitutional guarantees was afforded the two victims. Again, there is tension between the reality of the civilian and the many promises the Central Government made both to its people and to the international community.

This case illustrates how the BSF operates, and is permitted to operate, with impunity and in utter defiance of these laws. Saiful and Khalil's experience has thankfully not yet erupted into far graver incidents of violence that have characterised many of the encounters between the BSF and other civilians. Yet this case also adds to a growing corpus of casework that evidences serious institutional flaws in the Indian justice system. 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. Contempt for the law is criminal, 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 entire Indian nation.

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. The police stations charged with the administration of geographically well-defined districts possess the legal mandate to pursue incidents and reports of violence and discrimination against their constituents, yet do not, particularly where the paramilitary is involved. This reluctance and inaction is devastating the faith of the Indian people in the criminal justice system. With the legitimacy and puissance of the judiciary now so frequently and vociferously challenged both by the public and by institutions within the purview of the government, it will become increasingly difficult for the Central Government to restore rule of law and to protect the integrity of its borders.

It remains to be seen if another 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 Saiful and Khalil, only two in a long string of people long terrorised by the BSF. The threats and violence by the BSF against Saiful and Khalil has frightened and dismayed not only the victims and their families but the wider community, which bore witness to and actively fought the criminal and arbitrary actions of the BSF. The democratic credentials of India, which has assumed the name of Republic, is threatened by the corrosive lawlessness of the paramilitary and law enforcement. The state has a moral and legal responsibility to protect its people, even against itself – it is for this reason courts were established and laws formulated.

Without state intervention, it is unlikely that Saiful, Khalil, their families and the wider community will ever see their BSF tormentors brought to justice. Civil society can only react defensively to perceived injustices; it remains firmly the duty of the Central Government to act decisively to punish the flouting of laws and to conduct meaningful institutional reform. By demonstrating impartiality and respect for procedures established by law, the authorities can set important precedent for the BSF and the police to follow, thereby improving the functionality of the justice institutions around India.

I therefore demand that:

1. The report made by Mr Khasrul Islam, father-in-law of Mr Saiful Molla, be acknowledged immediately;
2. The alleged crime of cattle smuggling by Mr Saiful Molla and Mr Khalil Mondal be properly and transparently investigated by a neutral agency appointed by the National Human Rights Commission and their names cleared if found innocent of the charge;
3. The BSF personnel be internally investigated for failure to comply with standard criminal procedures and punished for the physical force used against Mr Saiful Molla and Mr Khalil Mondal;
4. The BSF jawan who demanded Khalil balance the Quran on his head to prove his innocence be immediately suspended, separately investigated and punished for the degrading treatment of Khalil;
5. A public apology be made to the Muslim community for the outrage to their religion and religious book;
6. A formal apology is made by the BSF to the females of Mr Saiful Molla's household for enduring the insults to their modesty;
7. The victims, their families and the community is assured by the authorities that their security will not be compromised by retaliatory attacks from the BSF;
8. The Central Government undertake a comprehensive review of practices by and complaints against paramilitary forces;
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
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)

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