Writing For Equality
Delhi gang rape v Felani killing
Justice and Injustice- both have been demonstrated in two of the verdicts of the Delhi girl who was gang raped and killed on December 16, 2012 and Felani from Bangladesh who was shot and killed on January 7, 2011. Admittedly, both incidents are inhumane in nature but one case is decided within 09 months and the other one is after two and half years! In the Delhi rape case, four men are sentenced to death on 13 September 2013 while just one week back, a special Court in the Indian state of West Bengal ruled that BSF's 181 Battalion Constable Amiya Ghosh, a constable of India's Border Security Force (BSF) who was the lone accused, was acquitted of shooting Felani on September 06, 2013 because of “inconclusive and insufficient” evidence against him. Not only Felani's poor parents but the whole Bangladesh and the international community reject the flawed verdict strongly. However, this was the first time a BSF jawan had been put on trial for such border killing which was also happened as a result of Border Guard Bangladesh's (BGB) instant flag meeting with BSF on the incident followed by a protest letter by the BGB Headquarters and lastly the meeting between the two Director General of BGB and BSF in Dhaka.
The proceedings started on August 13 this year by a five-men BSF General Security Forces Court headed by its Assam-Meghalaya frontier DIG (Communication) SP Trivedi who conducted the hearings at Sonari BSF camp near Cooch Behar under Section 64 and 65 of the Border Security Force Act, 1968 and its Rules, 1969. The accused was charged under section 46 of the Act which states that any person subject to this Act who at any place in, or beyond India, commits any civil offence shall be deemed to be guilty of an offence against this Act. After one week of the astonishing verdict of the accused's acquittal, now BSF has decided to revise the trial once again. Now apparently the news seems to give rise a new hope to all of us but we need to assess the merit of the case with the light of the provisions of the concerned Act and the Rule.
The definition clause of the BSF Act defines “enemy” as all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to this Act to take action meaning it does not include an unarmed civilian against whom an action can be made. Though the victim Felani and her father were trying to cross the border illegally, being an unarmed civilian they are not under the purview of the definition of the “enemy” in this Act.
The provisions regarding the Revision trial has been stated under section 113 of the Acts as stated that the Revision Court shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent and the Court may take additional evidence if requires. Since the Court is constituted with same set of people, the probability of reversing the verdict cannot be expected entirely. In connection with this sections, BSF Rule 105(4)(b) mentions that while reconsidering, the Court will conduct the case in closed manner meaning no person shall be present in closed Court except the members of the Court, the Law Officer (if any) and any officers under instruction(R 110.2)
If we then go through section 117 and 118 of the Act, it give the idea of any person considers himself aggrieved by any order or sentence passed by the Security Force Court may present a petition and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. Not only that, The Central Government, the Director-General, or any prescribed officer may annul the proceedings of any Security Force Court on the ground that they are illegal or unjust. These sections clarify that even after any order or sentence passes by the Court both the parties can further file petition to the concerned authority and it can annul the proceeding upon their satisfaction of considering the trial as an unjust one. Besides, section 128 gives the right to a convicted person which states that an officer not below the rank of Deputy Inspector-General within whose command such person at the time of conviction was serving, or the prescribed officer may:-
(a) either with or without conditions which the person sentenced accepts, pardon the person or remit the whole or any part of the punishment awarded; or
(b) mitigate the punishment awarded; or
(c) commute such punishment for any less punishment or punishments mentioned in this Act;
(d) either with or without conditions which the person sentenced accepts, release the person on parole.
It clearly depicts that section 128 gives the power to the authority not only to mitigate but also to pardon the person unconditionally. But section 130 completes the circle of “accused friendly” Act of 1968 which states the Central Government, the Director-General or any officer empowered to convene a General Security Force Court may suspend the sentence whether or not the offender has already been committed to prison or to Force custody. Lastly, section 132 affirms that where a sentence is suspended under section 130, the offender shall forthwith be released from custody.
The gruesome crime committed by BSF not only violates the basic human rights of the 15 years old Felani Khatun, it also shook the basic norms and principle of international law portraying protection from torture or cruel, inhuman and degrading treatment. As the general rule is to have necessity and proportionality while using force in the border area, border guards must use force only when necessary. The accused in this case could detain poor Felani rather killed her and hung her from the border fence afterwards. The last but not the least issue is Felani was just a 15 years old girl who deserved a minimum treatment from the border guard while passing through the border. Schengen Borders Code and EU Action Plan on Unaccompanied Minors recommended border guards to pay particular attention to minors, whether travelling accompanied or unaccompanied and to act as far as possible in the best interests of child treating them as children at first rather than merely as, for example, illegal immigrants or asylum seekers.
Felani deserved more than what she got from this cruel world. Now her soul wants justice, so do her parents, the Bangladesh, and the world community. In spite of all apprehension and uncertainty, we still look forward for a just verdict from the Revision Court.
THE WRITER IS LECTURER OF LAW, JAGANNATH UNIVERSITY.
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