Release on bail and ongoing judicial harassment of Mr. Ajimuddin Sarkar

TheObservatory for the Protection of Human Rights Defenders, a joint programme ofthe World Organisation Against Torture (OMCT) and the International Federationfor Human Rights (FIDH), has received new information and requests your urgentintervention in the following situation in India.

New information:

TheObservatory has been informed by Banglar Manabadhikar Suraksha Mancha (MASUM)of the release on bail and ongoing judicial harassment of Mr. Ajimuddin Sarkar, a District Human Rights Monitor (DHRM) for MASUM in Murshidabaddistrict (West Bengal, India). Mr. Sarkar is a renowned human rights defenderwho has investigated cases of human rights violations perpetrated by the policeand Border Security Forces (BSF), and who has been instrumental in denouncingseveral other human rights violations in Murshidabad district.

Accordingto the information received, Mr. Ajimuddin Sarkar was arbitrarily arrested onSeptember 22, 2015[1](see background information). Shortly after his arrest, two criminal cases werefiled against him: the first on September 23, 2015[2],and the second on September 29, 2015, on allegations of rape[3].

OnNovember 27, 2015, Mr. Ajimuddin Sarkar was granted bail[4]in relation to the first criminal case, but was not released on that day as theother case was still pending against him.

Itis only on December 8, 2015 that Mr. Sarkar was finally released on bailpursuant to the second case, since the de facto complainant filed anaffidavit stating that she did not bring any allegation of rape against Mr.Sarkar and she had no knowledge of the related criminal case against him.

Mr.Sarkar is currently receiving medical treatment, both physical andpsychological, as his mental and physical health conditions deterioratedsignificantly during the past months in detention.

The Observatory welcomes the release on bailof Mr. Sarkar, but condemns the ongoing judicial harassment by the IslampurPolice against him, as well as against other members of MASUM, which seems tobe aimed only at punishing them for their legitimate and peaceful human rightsactivities. In fact, the Islamur Police abducted and filed charges against Mr.Sarkar just days after he and MASUM had filed a case against the head of theIslampur Police Station for torture and custodial death[5].

The Observatoryrecalls that it is not the first time Mr. Sarkar has been intimidated,judicially harassed and ill-treated by the police (see background information).

Moregenerally, the Observatory expresses its deepest concern for the widespreadjudicial harassment suffered by MASUM’s personnel, including its Secretary, Mr.Kirity Roy, as well as otherDistrict Human Rights Monitors (DHRM) in several West Bengal districts. Forinstance, Mr. Mohar Ali Mondal, DHRMin District-North 24 Parganas, was detained in Swarupnagar Police Station inthe month of July 2014 without any lawful reason[6].Furthermore, on August 6, 2015, Mr. DurbadalMajumdar, DHRM in Jalpaiguri District, was also detained in New JalpaiguriPolice Out Post from 3.30 p.m. to 10.30 a.m. of the following day, without anylawful reason[7]. Inaddition, MASUM’s pro-bono lawyer Mr. RanaMahanta, who was defending among others the case of the widowed Ms. Bewa,has also been repeatedly threatened by unknown police personnel to withdraw thecomplaint regarding the custodial death of her husband against the accusedpolice personnel.

Accordingly,the Observatory calls on the Indian authorities to put an end to the ongoingand persistent attempts to criminalise members of MASUM, in contravention oftheir international engagements regarding the protection of human rightsdefenders.

Background information:

On November 21, 2014, law enforcement agents from theRaninagar Police Station arrested Mr. Sarkar at his place of residence andtransferred him to the ACJM Court, Lalbagh. Mr. Sarkar was reportedly arrestedpursuant to an arrest warrant for a pending criminal case under the PassportAct[8].

On May 20, 2014, Mr. Sarkar had filed an applicationbefore the ACJM Court, Lalbagh, expressing his concern that he had been falselyimplicated in an unknown criminal case by the police and the BSF, and requestingmore details about such case. However, until the arrest, Mr. Sarkar did notreceive any information about the status of the said criminal case, neither didhe receive any summons from the police nor the court.

Mr. Sarkar was reportedly assaulted, abused and mistreated by the policeduring his arrest as well as in custody.

On November 22, 2014, Mr. Sarkar was admitted to Lalbagh Sub-DivisionalHospital and referred to Berhampore New General Hospital on November 27, 2014, for medical treatment following the injuries sufferedin custody. On November 28, 2014, he was taken to Kolkata for advanced medicaltreatment. On November 29, 2014, he underwent psychiatric counselling; themedical report stated that he had several injuries such as a suspected fracturedrib, as well as post traumatic stress, a tearon a ligament on his left leg, a feeling ofhumiliation, intense anxiety, fear and a feeling of sadness and helplessness.He suffered from insomnia and his doctors expressed their concern that the attackcould have long-term effects on his psychological health. Mr. Sarkar went toCalcutta Medical College and Hospital for further treatment on December 3,2014. To this date, Mr. Sarkar is still undergoing physiotherapy sessions.

On November 23, 2014, Mr. Sarkar’sson filed a complaint to the local Police Superintendent Murshidabad urging thepolice to carry out an investigation into the beatings his father had beensubjected to while in police custody. However, to this date, no informationcould be obtained regarding any enquiry or investigation following thecomplaint[9].

Two other cases against Mr. Sarkar, namely the“Raninagar Police Station Case No. 354/2013” and the “Domkal Police StationCase No. 1243/2014”, are also ongoing. A Criminal Revision at Calcutta HighCourt was filed to quash the criminal case pending against Mr. Sarkar atRaninagar Police Station.

Furthermore,on September 22, 2015 at 10.27 a.m., Mr. Sarkar was abducted in Sekhpara(Murshidabad, West Bengal) by five to seven police officers from the IslampurPolice Station who were not wearing their uniform. At the time of the incident,Mr. Sarkar was talking with victims of torture and their family members when,all of a sudden, the police officers arrived in a car and started beating andinsulting him after which they lifted him, placed him inside the vehicle andtook him away.

OnSeptember 23, 2015, at 1.38 p.m., Mr. Sarkar was taken before the AdditionalDistrict and Sessions Judge (2ndCourt)[10]in Berhampore-Murshidabad and a criminal case was opened against him underSections 376, 511, 323, 506 and 400 of the Indian Criminal Code and underSections 8 and 12 of the Act for Protection of Children from Sexual OffencesAct. During the arrest he was slapped, kicked and pounced on the chest as wellas verbally abused. He was not permitted to have his medicine and he was notgiven food at night.

Furthermorehe was obliged to walk barefoot and was brought before the Court in thiscondition. At 6.15 p.m. on the same day, a petition for bail was rejected andMr. Sarkar was then transferred to the prison Berhampore Central CorrectionalHome.

MASUM has filed several complaints regardingthe harassment of its members and has been regularly sharing information withthe National Human Rights Commission (NHRC). Regarding previous incidents withMr. Sarkar and other MASUM members, the Focal Point on Human Rights Defenders(HRDs) at the NHRC called MASUM and informed them that they had taken up thecase and sought a report from the relevant police and civil administration, butup to this date no documents have been shared with MASUM and no appropriateaction has reportedly been taken.

On September 22, 2015,immediately following Mr. Sarkar's abduction, MASUM filed a brief complaintwith a request for urgent measures from the NHRC and contacted the Focal Pointof the NHRC on HRDs. However, as of issuing this Urgent Appeal, no actions have reportedly been taken overthe allegations of police abuse upon Mr. Sarkar.

Actions requested:

Please write to the authorities in India, urging them to:

• Guarantee in all circumstances the physical and psychological integrity of Mr. Ajimuddin Sarkar as well as of all members of MASUM and all human rights defenders in India;

• Drop immediately and unconditionally all charges against Mr. Ajimuddin Sarkar, as they only seem to be aimed at sanctioning his legitimate human rights activities;

• Put an end to all acts of harassment - including at the judicial level - against Mr. Ajimuddin Sarkar and all members of MASUM as well as against all human rights defenders in India so that they are able to carry out their work without hindrances;

• Conform with the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly of the United Nations on December 9, 1998, especially:

- Article 1, which states that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels”; and

- Article 12.2, which provides that “"the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration”; and

• More generally, ensure in all circumstances the respect for human rights and fundamental freedoms in accordance with the Universal Declaration of Human Rights and with international and regional human rights instruments ratified by India.

  Addresses:

• Mr. Shri NanredraDamodardas Modi, Prime Minister of India,Prime Minister’s Office, Room number 152, South Block, New Delhi, India. Fax: + 91 11 2301 6857. E-mail: pmosb@pmo.nic.in / manmo@sansad.in

• Mr. Raj Nath Singh,Union Minister of Home Affairs,Ministry of Home Affairs, 104-107 North Block, New Delhi 110 001 India, Fax:+91 11 2309 2979

• Justice Rajendra MalLodha, Chief Justice of India,Supreme Court, Tilak Marg, New Delhi -1, India. Fax: +91 11 233 83792,Email: supremecourt@nic.in

• Justice K.G. Balakrishnan, Chairperson of the National Human Rights Commission ofIndia, Manav Adhikar Bhawan Block-C,GPO Complex, INA, New Delhi - 110023, India. Fax +91 11 2465 1329. Email: covdnhrc@nic.in; ionhrc@nic.in

• Mr. A. K. Parashar,Focal Point on Human Rights Defenders, National Human Rights Commission,Faridkot House, Copernicus Marg, New Delhi 110 001, India. Email: hrd-nhrc@nic.in

• Miss Mamata Banerjee,Chief Minister, Chief Minister of West Bengal, 325, Sarat Chatterjee Rd, Shibpur, Howrah, West Bengal 711102,Telephone: +91 33 2214-5555, 2214-3101. Fax: +91 332214-3528. E-mail: cm@wb.gov.in

• H.E. Mr. DilipSinha, Ambassador, Permanent Mission of India to the United Nations(Geneva), Rue du Valais 9, 1202 Geneva, Switzerland. Fax: +41 22 906 86 96,Email: mission.india@ties.itu.int

• Embassy ofIndia in Brussels, 217 Chaussée de Vleurgat, 1050 Brussels, Belgium, Fax: +32 26489638 / +32 2 6451869

Please also write to the diplomatic mission or embassy of India in yourrespective country.

[1] On September 22, 2015, while talking with victims of torture and their familiesin Sekhpara (Murshidabad, West Bengal), Mr. Sarkar was abducted by five toseven plainclothes police officers from the Islampur Police Station. During thearrest he was slapped, kicked and pounced on the chest as well as verballyabused. He was not permitted to have his medicine and he was not given food atnight. The following day, Mr. Sarkar wasforced to appear barefoot before the Additional District and Sessions Judge(2nd Court) in Berhampore-Murshidabad. At 6.15 p.m. on the same day, a petitionfor bail was rejected and Mr. Sarkar was then transferred to the BerhamporeCentral Correctional Home.

[2] “Islampur Police Station Case No. 266/2015” under Sections 376, 511,323, 506 and 400 of the Indian Criminal Code and under Sections 8 and 12 of theAct for Protection of Children from Sexual Offences Act.

[3] “Islampur Police Station Case No.273/2015” under Sections 376 and 506 of the Indian Penal Code.

[4] No charge sheet was filed againsthim in relation to that case.

[5] In September 2015, Mr. Sarkar andMASUM filed a case against Mr. Biplab Karmakar, head of the Islampur PoliceStation, on behalf of Ms. Reba Bewa, for the torture and custodial death of herhusband Mr. Rajib Molla at Raninagar Police Station when Mr. Karmakar was theOfficer-in-charge of the Raninagar Police Station.

[6] See ObservatoryUrgent Appeal IND 002 / 0714 / OBS 067, published onJuly 30, 2014.

[7] See ObservatoryUrgent Appeal IND 002 / 0815 / OBS 066,published on August 14, 2015.

[8] Raninagar Police Station Case No. 354/2013, dated June5, 2013, was brought against Mr. Sarkar by Mr. Char Mourasi, B.O.P. ‘C’ Companyof 130 Battalion of the BSF under Section 12 of the Passport Act of 1967 (GR1738/2013).

[9] See ObservatoryUrgent Appeal IND 004 / 1114 / OBS091.1, published on December 24, 2014.

[10] This Court is adesignated Special Court for the Narcotic Drugs and PsychotropicSubstances Act (NDPS Act) and the Protection of Children from SexualOffences Act (POCSO Act).