Extra Judicial Killing in India-Bangladesh Border.

Topic: Extra Judicial Killing in India-Bangladesh Border.

  1. Introduction

India and Bangladesh share an international border of 4095 kilometers with about 6.5 kilometers of land and riverline patches still un-demarcated near Bangladesh’s Comilla district bordering Tripura.[1] Several Indian states, including West Bengal, Assam, Meghalaya, Mizoram and Tripura adjoin a total of 28 Bangladesh districts at the border.[2] The international border was first created with the partition of the subcontinent into India and Pakistan in 1947. The new nation of Pakistan was carved out, and consisted of two land blocks, one to the east and the other to the west. In 1971, East Pakistan broke away after a bitter war against West Pakistan, and the independent nation of Bangladesh was formed.

According to Bangladesh human rights monitoring group, Odhikar, between 2000 and June 2010, at least 924 Bangladeshi nationals were killed by India’s Border Security Force. MASUM, a non government organization has documented hundreds of cases in India, in just the one state of West Bengal.

The purpose of such article is to search for facts that could help us to understand the reality. Facts are usually put to silence in the mainstream media or presented to exploit narrow political benefits. My concern was systematic silencing of the voices of the victims –particularly their family, friends and community. The pain they bear and consequences of a traumatic event on their life. Needless to mention is that my purpose was primarily to find ways, if there is any, to avoid extra-judicial killing and brutal treatment of human beings who legally or, according to border security forces and the governments, illegally crossed border in search of livelihood. Criminalizing livelihood strategies and peoples’ struggle to earn a means of subsistence is a common practice by State and often by media.

2.      Life at the Border: Risk of Attacks by Border Guards

A vast majority in the Bangladesh area are Muslim: almost 80% of the population on the Bangladesh side, and nearly 60% on the Indian side.[3] The population in this region belongs to some of the most backward communities.[4] This is a densely populated area, occupied primarily by farmers and landless peasants. There is poor implementation of poverty alleviation and development schemes. Since India offers better employment opportunities for cheap labor, millions of Bangladeshi nationals also cross into India.

Bangladesh is also one of the most vulnerable countries to climate change causing loss of livelihood in the agricultural sector which has resulted in many migrating into India as ‘climate refugees.’[5]

A. Border Guards

The Border Security Force is deployed on the Indian border while the Border Guard Bangladesh (formerly known as Bangladesh Rifles) protects the border in Bangladesh. The Border Guard Bangladesh (formerly known as Bangladesh Rifles) is also a paramilitary force, but its officers are drawn from the Bangladesh Army. There was a mutiny by BDR personnel against their army bosses over outstanding demands in February 2009.[6] After the mutiny, a new name Border Guards Bangladesh (BGB) has been created by the government and approved by the Bangladesh Parliament.[7] The force has a total strength of roughly 67,000 personnel across Bangladesh.[8]

The Border Security Force (BSF) is a paramilitary force established on December 1, 1965 to protect India’s land border during peace time and to prevent transnational crimes.[9] It is a central government force under the administrative control of the Ministry of Home Affairs. With about 190,000 personnel, it is currently among the world’s largest border forces.[10] Its peace-time duties include preventing trans-border crimes, unauthorized entry and exit from India, and the prevention of smuggling and other illegal activities.[11]

B. Crimes in Border Areas

Illegal migration of Bangladeshi nationals is common.  Around 20 million Bangladeshis are estimated to be residing illegally in India. This is a source of immense political tension, with Hindu political groups claiming that there is a deliberate ploy to alternate the demography of the country.[12] There are agents in both India and Bangladesh that facilitate the process, even providing assistance in securing Indian citizenship documents. Many leave their families in Bangladesh and make the dangerous journey across the border to meet with relatives while working in India.

Smuggling is considered the main economic activity in the area, and is thus difficult to contain. Phensedyl cough syrup, drugs and rice is commonly transported across into Bangladesh.[13] The most common is cattle smuggling from Hindu-majority India, which forbids consumption of beef, into Muslim-majority Bangladesh, where beef is part of the regular diet. It is estimated that approximately 1.5 million cows worth over $500 million are smuggled into Bangladesh annually.[14] At least 20,000-25,000 animals enter into Bangladesh through West Bengal yearly.[15] The smuggled cows provide more than half of the beef consumed in Bangladesh.

Cattle rustlers are well organized, and the trade is highly profitable. A $100 medium-sized cow in Jharkhand, India is about $350 in Bangladesh.[16] The cows are often injected with Diclofenac sodium, a banned anti-inflammatory drug, to energize them so that they walk faster at the border.[17] Usually, the primary traders themselves are not caught by the BSF, but villagers, who for a small fee ferry the cattle across the border, are caught. For them smuggling is often the only means of livelihood since there are few employment opportunities in the area.

  1. Violation of domestic and international laws

In an effort to contain the problem of illegal immigration, trafficking, smuggling and the infiltration of militants, India has embarked upon a border fencing project, a few kilometers inside its border.[18] Bangladesh believes that the fencing goes against the 1974 Land Boundary Agreement signed to remove border tension between the two countries.

Both the BSF and the BDR accuse the other of being motivated by corruption. BDR also alleges that drug peddlers, including those dealing with Phensedyl, which is banned in Bangladesh, are not the usual victims of the BSF. The Indians, in turn, say that it is the BDR that provides cover to cattle smugglers and criminals, leaving it only to the BSF to contain such activities. The BSF repeatedly points out that it is not just Bangladeshis but a large number of Indians have also been killed by the BSF, because they were engaged in criminal acts.[19]

A.     Excessive Use of Force and Indiscriminate Killings by the Border Security Force

The BSF justifies the killing of suspects by claiming that they were evading arrest, or that it had to fire in self-defense. However, in none of the cases investigated by us, were the alleged criminals armed with anything more than sickles, sticks or knives, which suggest that the border guards used excessive force. Nor is cattle rustling a capital offence, which allows an arresting official to use lethal force. In a number of cases, the victims were shot in the back, suggesting that they were running to evade arrest.

Section 46 of India’s Code of Criminal Procedure, while allowing “all means necessary” in case a person attempts forcibly to resist arrest, clearly forbids causing the death of a person who is not accused of an offence punishable by death or a life term.[20]

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials calls upon officials to apply, as far as possible, non-violent means before resorting to the use of force and firearms. Even in self defense, intentional lethal use of firearms is permitted only when strictly unavoidable in order to protect life. Officials are required to exercise restraint and “act in proportion to the seriousness of the offence.”[21]

These domestic and international laws are violated by the Border Security Force leading to a number of deaths of both Indian and Bangladeshi nationals

The BSF ignores procedural safeguards designed to prevent torture and other mistreatment of persons in custody. Although Indian law requires that everyone taken into custody must be produced before a magistrate within twenty-four hours, this rule is usually ignored. The Supreme Court has stated resolutely that Article 21 of the Indian Constitution protects individuals from any form of torture or cruel, inhuman, or degrading treatment.[22] The Indian Penal Code forbid the causing of “hurt” or “grievous hurt” and prescribe prison terms and fines for officers found guilty of torture.[23]

The Code of Conduct for Law Enforce Officials prescribed that: “In the performance of duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.[24]

B. Entrenched Impunity

The BSF is regarded as an unsympathetic force. While some might be involved in smuggling and other illegal activities, the entire population is treated with suspicion. There are reports of humiliation of women and ill treatment of children. Villagers also often complain about the restrictions placed upon them. One man said that he could not arrange the marriage of his daughter because the BSF did not permit the groom’s family to visit the village.[25] Those in urgent need of medical attention have had to wait hours before they were allowed to pass.[26] At its worst, BSF has been accused of torturing and killing both Indian and Bangladeshi national.

The reason that the BSF can behave in this manner is because its personnel are not accountable to the local administration, the police or even to human rights institutions. The police, in fact, often refuse to register complaints against the BSF. Under the BSF Act, personnel cannot be prosecuted without sanction from the federal home ministry—permission that is seldom granted. While BSF authorities insist that it punishes personnel found to have committed any crimes, including the violation of human rights, these proceedings are held in internal courts, and have failed to serve as effective deterrence.[27]

  1. Conclusion

The practice of killing of armed people by border security forces must be immediately addressed keeping in mind that such killing are taking place not on the border between two equally strong countries, but between India a strong political, economic and strategic player and Bangladesh, projected internationally as a weak and failing state with potential threat to her neighbors and international community by the ‘Islamic militant’.

In recent talks between the BSF and the BDR, held on March 9, 2010, both BDR and BSF agreed to stop killing innocent civilians. Saying it would instruct its forces to only restrict “criminals” who violate the curfew imposed on the border at night, BSF Director General Raman Srivastava said, “We have agreed to ensure that no innocent civilian is shot by the troops. We have no reason to fire at innocent civilians.”[28] After signing a Joint Record of Discussions, Director General of BDR Major General Mainul Islam, who headed the Bangladeshi team at the talks, said the Indian side “clearly conveyed to us that they would maintain zero tolerance to killing of innocent Bangladeshis at the borders.” [29] However, Bangladesh also accepted in this context that it too “needs to motivate its people” not to undertake any illegal act across the border.

5. Recommendations:

–         The government of India and the government of Bangladesh should place human rights protection mechanisms for their border residents at the center of any bilateral dialogue.

–         The Bangladesh government should commit to preventing illegal trade or the illegal migration of its nationals into India. The Indian government should order its troops to use minimal force in preventing such activities, and restrict the use of lethal force.

–         The Indian government should each establish an independent and impartial commission of inquiry into serious violations of international human rights and humanitarian law by the Border Security Force.

–         Given the continuing failure of the internal justice system to prosecute members of the Border Security Force for human rights abuses, personnel of all ranks implicated in serious rights abuses should be fully and fairly prosecuted in civilian courts.

–         All legal provisions providing effective immunity to security forces, including in the recent Prevention of Torture Bill, should be repealed.

–         The Indian parliament should amend the Human Rights Protection Act to allow the National Human Rights Commission to independently investigate allegations of abuse by members of the BSF.

–         The Indian government should publicly release detailed information on all arrests, prosecutions, and convictions of BSF personnel for human rights violations and should release the same information on an annual basis in the future.

BIBLIOGRAPHY

  1. Mitra, B.B. Code of Criminal Procedure, 20th Edn, Kamal Law House (Kolkata:2003).

  1. Dixon, D. (1997) Law in Policing: Legal Regulation and Police Practices, Oxford: Clarendon Press.

  1. Ormond E.C., The rules of the High Court of Judicature at Fort William in Bengal, 4th edn, (Butterworth & Co. India: 1940).

  1. Rahim, A, Police Regulations Bengal, 1943 (Vol-1), (BG Press, 1997).

  1. Halim, Md. Abdul, Constitution, Constitutional Law and Politics: Bangladesh Perspective, 2nd ed. (Dhaka: 2003)

  1. Halim, Md. Abdul, The Legal System of Bangladesh, (CCB Foundation, Dhaka: 2005).

  1. Maxwell on the Interpretation of Statutes, 12th ed. (Bombay: Tripathi, 1976)

  1. N.S. Brindha’s Interpretation of Statutes, 9th Edition (New Delhi: Butterworths, 2002)

Rules and Reports

  1. Hand Book on Criminal Reforms, Cabinet Division, (Government of India: 1998).

  1. Masum’s Report: Investigation and Trial of Criminal Offences: In quest of Capacity Enhancement (1998).

  1. Human Rights Watch Report: (2006).

  1. Odhikar’s Report: 2007 to 2010

  1. BSF Acts and Rules,” Border Security Force, March 2004

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[1]M. Afsarul Qader, “Management of Bangladesh-India Border,” Bangladesh Institute of International and Strategic Studies, http://www.biiss.org/aqader.pdf (accessed october10, 2010), unpublished draft document.

[2] West Bengal has a border length of 2216 km, Tripura 856 km., Meghalaya 443 km., Mizoram 318 km and Assam 263 km.  “Fencing and Floodlighting of Borders,” Report of the Ministry of Home Affairs, http://mha.nic.in/pdfs/Fencing.pdf (accessed october10, 2010).

[3] Sahil Makkar, “Climate change threatens to push more Bangladesis into India,” Thaindian News, http://www.thaindian.com/newsportal/enviornment/climate-change-threatens-to-push-more-bangladeshis-into-india_100281560.html (accessed october11, 2010)

[4]Centre for Civil Society, “Indo-Bangladesh fence issue,” http://www.ccsindia.org/nolandsman/ (accessed october11, 2010).

[5]Sahil Makkar, “Climate change threatens to push more Bangladesis into India,” Thaindian News, http://www.thaindian.com/newsportal/enviornment/climate-change-threatens-to-push-more-bangladeshis-into-india_100281560.html (accessed october11, 2010).

[6] Anand Kumar, “The BDR Mutiny: Mystery Remains but Democracy Emerges Strong,” Institute for Defence Studies and Analyses, October 2009,  www.idsa.in/system/files/jds_3_4_akumar.pdf (accessed octobe11, 2010).

[7] “Border Guard Bangladesh –Overview,” Bangladesh Military Forces, http://www.bdmilitary.com/index.php?option=com_content&view=article&id=109&Itemid=129 (accessed october11, 2010).

[8] “About Us,” Bangladesh Rifles.

[9] ”BSF Acts and Rules,” Border Security Force, March 2004, http://www.bsf.nic.in/act_rules/bsfAct&Rules.pdf (accessed october11, 2010).

[10] Mallika Joseph, “Profile of Indian Paramilitary Forces- Border Security Force,” Institute of Peace and Conflict Studies, January 31, 2002, http://www.ipcs.org/article/military/profile-of-indian-paramilitary-forces-ii-border-security-force-686.html (accessed october11, 2010).

[11] Border Security Force, http://sb.bsf.gov.in/history.htm, (accessed october11, 2010). The BSF tasks are listed as:   (a)  Peace time: Promote a sense of security among the people living in the border areas;  Prevent trans border crimes, unauthorized entry into or exit from the territory of India; Prevent smuggling and any other illegal activity; (b)  War Time: Holding ground in less threatened sectors; Protection of vital installations; Assistance in control of refugees; Anti-infiltration duties in specified areas.

[12] Anand Kumar, “Illegal Bangladeshi Immigration: People Take the Mantle when the Government gives up,” Paper No. 1391, South Asia Analysis Group, ICDDR,B: Centre for Health and Population Research (accessed october11, 2010). Also see “Bangladeshi Inflitration,” Sangh Parivar, http://www.sanghparivar.org/forum/bangladeshi-infiltration (accessed october11, 2010).

[13]V.K. Shashikumar, “The Subverted Indo-Bangladesh Border,” Indian Defence Review, http://www.indiandefencereview.com/2009/08/the-subverted-indo-bangladesh-border.html (accessed October 12, 2010)

[14] Mark Magnier, “Where’s the beef? Indians don’t want to know,” Los Angeles Times, May 2, 2010, http://articles.latimes.com/2010/may/02/world/la-fg-india-cows-20100503 (accessed october12, 2010).

[15] Delwar Hussian, “Life and death in the Bangladesh-India margins,” Open Democracy, March 2, 2009, http://www.opendemocracy.net/article/life-and-death-in-the-bangladesh-india-margins (accessed october12. 2010).

[16] “Where’s the beef? Indians don’t want to know,” Los Angeles Times.

[17]iIbid.

[18] Over 2500 km of fencing has been completed. “Fencing and Floodlighting of Borders,” Report of Ministry of Home Affairs, http://mha.nic.in/pdfs/Fencing.pdf (accessed october12, 2010).

[19] Julfikar Ali Manik, “The Red, Dotted Line,” Outlook, September 11, 2006, http://www.outlookindia.com/article.aspx?232444 (accessed october12, 2010).

[20] Code of Criminal Procedure, Section 46: http://www.vakilno1.com/bareacts/CrPc/s46.htm (accessed october12, 2010).

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be it submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) 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

[21] United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, http://www2.ohchr.org/english/law/firearms.htm (accessed october13, 2010).

[22] See D.K. Basu v. State of West Bengal, 1996. This landmark judgment by the Supreme Court led to what is commonly known as the eleven-point “Basu guidelines” to prevent the widespread use of torture in custody. Article 21 of the Indian Constitution on the “protection of life and personal liberty” states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[23] Indian Penal Code, Sections 330 and 331,  http://www.indialawinfo.com/bareacts/ipc.html#_Toc496765205

[24] Code of Conduct for Law Enforcement Officials, Article 2, General Assembly resolution 34/169 of 17 December 1979, http://www2.ohchr.org/english/law/codeofconduct.htm (accessed october13, 2010).

[25] Human Rights Watch interview, details withheld, Murshidabad, May 3, 2010.

[26] Human Rights Watch interview, details withheld, Murshidabad, May 3, 2010.

[27] Under the Border Security Force Act and BSF Rules, offenses by members of the force are examined by the Staff Court of Inquiry and those found responsible face trial by a Security Force Court.

[28]“ BSF, BDR to ensure innocent civilians not shot on border,” Press Trust of India, March 10, 2010, http://beta.thehindu.com/news/national/article236606.ece (accessed october13, 2010)

[29] “No more killing of ‘innocent’ by BSF, The Daily Star, March 9, 2010, http://www.thedailystar.net/newDesign/news-details.php?nid=129333  (accessed october13, 2010).

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