Court directs Centre to move ICJ for release 54 Indian POWs

Ahmedabad: Rapping the Union government for inaction, Gujarat High Court today directed it to move the International Court of Justice (ICJ) within two months to secure release of 54 prisoners of war languishing in Pakistani jails since 1971.

A division bench of acting Chief Justice Bhaskar Bhattacharya and Justice JB Pardiwala also directed the government to pay next of the kin of these men full service/retirement benefits within three months.

“The Union of India shall within two months from today approach the International Court of Justice alleging breach of the Simla Agreement at the instance of Pakistan for not releasing the soldiers,” the court said in the order.

The judges turned down the Union Government’s contention that the court cannot direct it to take decision on policy matters.

“This is not a case of interference with the policy decision of Union of India, but is one of inaction on its (Centre’s) part in not taking lawful steps for protecting the life and personal liberty of its citizens who did not hesitate to risk their life and comfort for protecting their motherland,” the court observed.

The present petition was filed in 1999 by late Lt Gen Jagjit Singh Aurora, the hero of 1971 war, who had sought direction from the court to the Centre to secure release of the POWs.

The court today said that “unlawful imprisonment” of POWs for more than 40 years was a “gross violation of human rights”.

When the government was satisfied that there was sufficient material to conclude that the claim of Pakistani authorities that there were no Indian POWs in their jails was incorrect, the Centre must now state why the lawful remedy under Simla Treaty was not availed of, the judges said.

The HC also refused to accept the government’s argument that ICJ can be approached only by joint application of the two countries involved (here India and Pakistan).

The court rejected government’s defence for dismissing the demand of the kin of the POWs that United Nations had no role to play in the issue as the Government of India was committed to resolve all matters with Pakistan on bilateral basis without third party mediation.

“In our opinion the act of approaching ICJ is not an instance of third-party mediation but one of enforcement of the right of the State (India) to have its imprisoned soldiers returned to their motherland and to enable them to live with dignity, an obligation cast upon the State under Article 21 of the Constitution,” the court observed.

The court said that Simla agreement gave India the right to enforce its prerogative to have custody of all the imprisoned defence personnel.

“Inaction on the part of the Union to enforce such right amounts to failure to protect life and liberty of citizens,” it said.

The court noted that the matter had been taken up at the highest level of the Prime Ministers of the two countries, as per the affidavit of the Centre. Therefore, it cannot be said that there had not been serious efforts to get back the missing defence personnel.

The high court, in January 2010, had twice imposed fine of Rs 10,000 on the Ministry of Defence for not filing reply for over ten years despite repeated notices.

Under the Simla Agreement, India sent back 93,000 Pakistani POWs while latter sent back 632 Indian POWs.

But in 1999, it was found that 54 POWs were still languishing in Pakistani jails, of which two were from Gujarat - Kalyan Rathod from Sabarkantha and pilot N Shanker from Vadodara.

Indian prisoners who came back from Pakistani jails gave details of those who were still lodged there. Rajkot-based lawyer MK Paul and his son KM Paul are heading the campaign for the release of 54 POWs since 1998.

PTI