A/HRC/WGEID/126/1 [English only] Annex II General allegation India 1. The Working Group received information from the sources concerning alleged violations and obstacles encountered in the implementation of the Declaration on the Protection of All Persons from Enforced Disappearance (hereafter, “the Declaration”) in India, with particular reference to the state of West Bengal. 2. According to the sources, since 2016, nearly 100 people have been forcibly disappeared by members of the Border Security Forces (hereafter, “BSF”) in the state of West Bengal, at the border with Bangladesh. In some of the cases reported, the victims’ fate and whereabouts remain unknown. Allegedly, victims include men, women and minors. In their majority, they are Muslims and often pertain to the lower castes. 3. Pursuant to the information received by the Working Group, the border area between India and Bangladesh is heavily populated, with large numbers of Muslims and people of lower castes. Traditional activities such as farming are currently no longer possible due to environmental degradation, including the erosion along the banks of the river Ganges, in the district of Murshidabad. This led to a worsening in the living conditions in the area and an increase in illegal activities such as cattle smuggling and human trafficking across the border. 4. The BSF is the force mandated to protect India’s borders and preventing transnational crimes, including trafficking and smuggling. In this context, they have been entrusted with both military and law enforcement functions. The BSF is under the control of the Indian Ministry of Home Affairs. 5. According to the information provided by the sources, members of the BSF target villagers – especially if pertaining to low castes – suspected of engaging in illegal smuggling and trafficking across the border. Allegedly, people meeting this “profile” (poor, low caste, and often Muslim) are often arrested, ill-treated and subjected to other human rights abuses, including enforced disappearance. 6. The sources further indicate that their quest for truth, justice and redress encounters multiple obstacles and has so far been unsuccessful. On the one hand, it is reported that often the police refuse to register complaints against the BSF. On the other hand, there seemingly is a loophole in the applicable domestic legal framework, which fails to codify enforced disappearance as an autonomous offence. 7. Moreover, pursuant to the information submitted by the sources, under section 197(1) of the Indian Criminal Procedure Code, in order to bring a lawsuit against members of the BSF prior government approval is required, making thus virtually impossible to seek and obtain justice. Allegedly, such approval is regularly denied under the argument that members of the BSF should be investigated and, where appropriate tried, under internal security forces courts. According to the information received, no member of the BSF has been prosecuted and convicted by the mentioned courts. Similarly, victims of enforced disappearance or their families have so far been unsuccessful in obtaining compensation or any other form of reparation for the harm suffered. 8. Sources held that, pursuant to Section 19 of the 1994 Protection of Human Rights Act, the National Human Rights Commission (hereafter, “NHRC”) would also be prevented from directly investigating violations allegedly committed by members of the armed forces (including the BSF). In this regard, the NHRC could only request a report from the institution or agency of which the accused person is a member. 9. The Working Group was informed that a writ petition to challenge the procedural obstacles described in the previous paragraph, that eventually would favour impunity of 28