Explained: How do India and Pakistan handle prisoner swaps?

News of the US-Russia prisoner swap – the biggest since the Cold War – has hit headlines around the world.

Moscow released the Wall Street Journal’s Evan Gershkovich and former US Marine Paul Whelan as well as dissidents including Vladimir Kara-Murza.

In exchange, Russia got Vadim Krasikov, who was convicted in Germany in 2021 and sentenced to life in prison for killing a former Chechen rebel in a Berlin park as well as two alleged sleeper agents jailed in Slovenia and three men charged by federal authorities in the US.

Norway sent back an academic arrested on suspicions of being a Russian spy, while Poland returned a man detained on espionage charges.

But how do prisoner swaps work back home – specifically between India and Pakistan?

More from Explainers

How ChatGPT is becoming everyone’s BFF and why that’s dangerous This Week in Explainers: How recovering from Gen-Z protests is a Himalayan task for Nepal

Let’s take a closer look:

There are two laws we need to look at – the Exchange of Prisoners Act, 1948, and the Consular Access Agreement signed by India and Pakistan in 2008

First, let’s look at the former.

India passed the Exchange of Prisoners Act in September 1948.

Meanwhile, Pakistan passed the Pakistan (Exchange of Prisoners) Ordinance in March 1948.

As per India Kanoon, an exchange of prisoners became necessary after an exodus of non-Muslims from West Punjab, the North West Frontier Province, and certain other areas of West Pakistan.

Impact Shorts

More Shorts

Ghaziabad woman dead, pilgrims attacked in bus… How Nepal’s Gen-Z protests turned into a living hell for Indian tourists

Were bodyguards involved in Charlie Kirk’s shooting? The many conspiracies surrounding the killing

As per Scroll, both laws allowed the exchange of “transferable prisoners” in each other’s jails. Pakistan’s ordinance defined prisoners as “any Hindu including any member of a Scheduled Caste, or any Sikh who is in custody in any prison in Pakistan under lawful orders of a duly empowered Court or other authority and who is willing to be transferred” to India.

Meanwhile, India’s law defined prisoners as “willing to be transferred under the provisions of the Act” in custody or in a prison on or before the August, 1, 1948

The laws worked for some time. Many non-Muslim prisoners were returned from West Punjab.

Meanwhile, all Muslim prisoners barring around 300 were returned to Pakistan, as per India Kanoon.

According to Scroll, two major exchanges occurred in April and in November-October 1948.

India was returned 4,084 non-Muslims, while 3,783 Muslims sent back to Pakistan.

However, this success wouldn’t last.

After the wars in 1965 and 1971, the prisoners in each other’s jails were simply ‘not seen for decades,’ the website noted.

“Some of these were spies, casualties of a hole and corner war between the two countries, largely abandoned by their governments the moment they were caught,” Scroll added.

In the meantime, many who crossed the border accidentally, like fishermen, were locked up.

Then, on May 21, 2008, India and Pakistan signed the Consular Access Agreement in Islamabad.

Under this agreement, the two countries exchange lists of civilian prisoners and fishermen in each custody every year on January 1 and on July 1.

It states that the countries’ high commissions must be immediately alerted to any arrests, detentions or imprisonments

Both nations’ governments must offer consular access to citizens of the other nation within three months of their arrest, detention, or imprisonment as per this agreement.

It also says both governments must release and repatriate individuals within one month of confirming their national status and completing their sentences.

An India-Pakistan Judicial Committee on Prisoners was also established, as per Scroll.

The joint judicial committee on prisoners, which comprised four retired judges from both sides, would meet twice a year, as per iasforum.com.

However, flaws with the consular agreement abound.

For example, Pakistan in 2013 halted consular access to Sarabjit Singh, who was given a death sentence on espionage charges by a Pakistani court, after he was attacked by fellow prisoners.

Singh would pass away in May at a hospital in Lahore.

The committee’s final meeting was held in 2013.

Efforts were made to revive it in 2018, but Pakistan is still to appoint judges.

Jatin Desai of the Pakistan-India People’s Forum for Democracy told Scroll that though consular access is given to prisoners within 90 days of arrest, there remains no time limit for verification.

The website pointed out that merely exchanging lists is also no guarantee of freedom and that though prisoners have been freed as political gestures, the process should not be subject to the whims and fancies of politicians.

Interestingly, the 96th Report of the Law Commission of India recommended that the Exchange of Prisoners Act, 1948, be repealed as the Consular Access Agreement has subsumed it.

Despite these agreements, hundreds of Indian prisoners, many of them fishermen, remain in Pakistan’s custody.

‘Pakistan asked to expedite release’

The Ministry of External Affairs in July said that 2,639 Indian fishermen and 71 civilian prisoners have been repatriated from Pakistan since 2014.

India has shared the names of 366 civilian prisoners and 86 fishermen in its custody who are Pakistani or are believed-to-be-Pakistani.

Similarly, Pakistan has shared the names of 43 civilian prisoners and 211 fishermen in its custody who are Indian or are believed to be Indian, the MEA added.

The government of India has called for “early release and repatriation” of civilian prisoners, fishermen along with their boats and missing Indian defence personnel from Pakistan’s custody, the ministry said.

“Pakistan has been asked to expedite the release and repatriation of 185 Indian fishermen and civilian prisoners, who have completed their sentence. In addition, Pakistan has been asked to provide immediate consular access to the 47 civilian prisoners and fishermen in Pakistan’s custody, who are believed-to-be-Indian and have not been provided consular access so far,” the statement said.

Pakistan has been requested to ensure the safety, security and welfare of all Indian and believed-to-be-Indian civilian prisoners and fishermen, pending their release and repatriation to India, it said.

The MEA said India remains committed to addressing, on priority, all humanitarian matters, including those pertaining to prisoners and fishermen in each other’s country.

“In this context, India has urged Pakistan to expedite the nationality verification process of 75 believed-to-be-Pakistani civilian prisoners and fishermen in India’s custody, whose repatriation is pending for want of nationality confirmation from Pakistan,” the statement said.

“As a result of sustained efforts by the government, 2,639 Indian fishermen and 71 Indian civilian prisoners have been repatriated from Pakistan since 2014. This includes 478 Indian fishermen and 13 Indian civilian prisoners who have been repatriated from Pakistan since 2023 till date,” it added.

With inputs from agencies