SYYED MANSOOR AGHA hails the Supreme Court direction to the Government to deport Pakistani detainees who have completed their trial here in India, and hopes that this landmark judgment will bring good name to our judiciary.
On March 8, when the atmosphere all over the world was abuzz of ‘Women’s Day’ celebrations and in New Delhi our Parliamentarians were anxiously rushing all around the sprawling lawns and huge buildings of Raisina Hills in the endeavour to see ‘The Women’s Reservation Bill’ passed, barely two kilometres in the North East in a chamber of Supreme Court two learned Judges, unperturbed of the din, focused a more vital subject of ‘right to life’ and ‘rule of law’.
In a judgment of far-reaching importance, the bench of Justice Markandey Katju and Justice R.M. Lodha stressed that right to life has primacy in a country governed by rule of law and cannot be dependent on another country’s action or non-action. The Court directed the Government of India to set free the Pakistani detainees languishing in various Indian jails in spite of completion of their term of conviction. The Court refused to give credence to the plea of the Government that meant to use the detainees as a tool to get Indian detainees released from the jails of Pakistan. The Government advanced the plea that “exchange of prisoners was a diplomatic process that required cooperation at both ends.”
The Court said exchange or no exchange, set free and deport within two months all the detainees who have completed their jail term as the law does not permit otherwise. Throwing the plea out as it violates the principles and sanctity of Human Rights, the Court observed, “Under the Constitution, detention even for a second beyond the permitted period of sentence is illegal. Now you (Centre) are putting a condition that until they return a similar number of prisoners we cannot send them back.”
The Bench questioned, “If Pakistan does not do something right, does that mean we should also follow them?” Justice Katju told Centre’s counsel: “This court is the custodian of the civil rights of every person, Indian or foreigner, under Article 21 of the Constitution and no person shall be deprived of his life or liberty without the procedure established by law. This provision in the Indian Constitution cannot be allowed to be diluted.”
He observed: “How can the government keep them in detention in violation of the fundamental rights of a person for years together without resorting to the procedure of law?” The right to life and liberty was not dependent on another country’s action, he said.
In its affidavit, the Centre said 22 prisoners who had completed their sentences and detained in different jails were recommended for deportation by the by Jammu and Kashmir government. It said Pakistan, while clearing the names of 16 persons, had neither sent travelling documents nor cleared the names of five others – Mohammad Abdullah aka Abu Murad, Mohammad Aslam Mughal aka Zahoor Ahmed, Manzoor Ahmad Sheikh aka Umer, Liaquat Ali Khan aka Mehboob Ali and Abdul Qadeer Khawaja, but consular access had been provided to them. In respect of one person his nationality could not be verified.
Hopefully this order will expedite the process of release of 16 Pakistani detainees and shall bring cheers to their families on the other side of Indo-Pakistan border.
Humane aspect of this laudable judgment will surely bring good name to our judiciary and shall be hailed by all who value human rights. It is set to inspire Human Rights activists in our neighbouring country to impress upon P.M. Yousuf Raza Gilani’s Government to reciprocate the gesture.
The 16 persons ordered to be released are Mohammad Ajmal, Mehrban Sathi, Mohammad Nawaz, Sajad Ali Jat, Shabir Ahmed, Shahzad Gul, Shahid Mehmood, Qudrat Ullah, Mohammad Farooq Raja, Dawood Ahmed Mughal, Faiz Ali, Mohammad Usman Shiksh, Zarar Baloch, Shahid Latief, Suhail Ahmed Kataria and Sher Khan. It is reported that they have already been provided travel documents by Pakistan but their release was being deferred on the plea of reciprocity.
The Hindu has editorially commented: “The shabby attitude towards prisoners is in contrast to the bonhomie that exists between the elites of the two countries. When diplomats from the two sides meet, they are admirably pleasant with each other even at tense moments. Retired military and intelligence officers meet and exchange niceties across Track 2 tables. But the two countries seem incapable of decent behaviour when it comes to dealing with prisoners. In 2008, a bilateral committee of retired judges, mandated by the governments, visited jails in India and Pakistan and made excellent recommendations for the early release of these prisoners. The Mumbai terror strikes put paid to all that. Holding the fate of hundreds of prisoners ransom to the complicated Indo-Pakistan relationship is morally abhorrent, inhumane, and politically unacceptable.”
The petition filed by social activist Prof. Bhim Singh and Advocate B S Billowriya had alleged that over 30 Pakistanis are illegally detained in prisons in Agra, Jodhpur, Naini, Sangrur, Varanasi and Tihar despite completion of their sentences. It is hoped that the rest of detainees will also be provided travel documents soon by Pakistan authorities to facilitate end of their ordeal and their reunion with their families.
[The writer is a senior journalist and Gen. Sec. of Forum for Human Rights. email: syyedagha@hotmail.com]