MADANGOPAL KHUSHIRAM PAUL Vs. UOI

JUDGEMENT

(1.) THE petitioner claims to be an advocate and human rights activists and has filed these petitions in public interest. W.P.(C) No.7185/2009 was filed pleading, i) that the petitioner had filed a complaint before the National Human Rights Commission (NHRC) for release of 16 Indian citizens languishing for long in Pakistani jails; ii) that the NHRC had passed an order dated 23.06.2007 and sent the matter to the Secretary, Ministry of External Affairs, Government of India; iii) that though the petitioner had made several representations but the order of NHRC was not implemented; iv) that in the meanwhile, three prisoners were released but the Government was not giving their lawful dues and compensation, to them. The petition, thus sought the relief of a direction to the Ministry of External Affairs to comply with the order of the NHRC. Notice of this petition was issued. The petitioner thereafter sought impleadment of the Ministry of Home Affairs as well as the Chief Advisor, Prime Ministers Office, on the ground that they were liable to pay compensation to the prisoners held in jails in Pakistan. However, the learned Single Judge vide order dated 07.01.2010 dismissed this application holding that "in the petition filed before the NHRC the only issue was that the complaint should be transmitted to the concerned authority for such action as deemed appropriate"; that the writ petition sought only implementation of the order dated 23.06.2007 of NHRC and no prayer for compensation was made in the writ petition; hence the application for impleadment was misconceived. The petitioner preferred intra-court appeal being LPA No.112/2010 against the said order but which was also dismissed on 16.02.2010. Counter affidavit has been filed by the respondents to which rejoinder has been filed by the petitioner. The petition was admitted for hearing on 29.09.2010. A further status report has been filed on behalf of the respondent.

(2.) DURING the pendency of the aforesaid petition, W.P.(C) No.862/2011 was filed pleading that the petitioner had got further information that in all 51 Indians were imprisoned in the jails in Pakistan; they are unable to themselves access the Courts; that the petitioner had called upon the respondents to give appropriate compensation to the said prisoners and their family members but to no avail. Mandamus is sought, directing the respondents to pay compensation, legitimate dues and other benefits to the said prisoners in Pakistani jails and their family members. This petition was clubbed along with the earlier petition aforesaid and status report and affidavit have been filed by the respondents and to which a rejoinder has been filed by the petitioner.

(3.) THE respondents in their counter affidavits have stated that they have taken all possible actions seeking the release of Indian nationals from Pakistani jails; that the matter has been taken up with the Government of Pakistan at all levels; that the respondents thus cannot be said to have not complied with the orders of the NHRC. It is yet further informed that an Indo-Pakistan Judicial Committee on Prisoners has been formed and which has visited jails in Pakistan and India and made recommendations to both the governments; that the matter was also raised during the Foreign Secretary Level Talks held on 25.02.2010 and 24.06.2010 as well as during the Home Ministers visits to Islamabad on 25-26.06.2010 and during Foreign Minister Level Talks on 15.07.2010 as also in the Foreign Secretary Level Talks in February, 2011 and the Home / Interior Secretary Level Talks on 28- 29.03.2011. It is also stated that the said prisoners were Indian fishermen or civilians and Consular Access to such prisoners has also been sought. Assurance is given to take all further steps also in this regard. Else, it is stated that the Indian nationals listed in the petitions and in Pakistani jails are neither employees of the Ministry of External Affairs nor were they, in any manner engaged by the Government, so as to make the Government liable to pay to them any salary, compensation, allowance or benefits etc.- no such direction has been issued by the NHRC also. The respondents, though admit that the charge by the Pakistani Authorities against some of these prisoners is of spying, has pleaded that it is not within the power and jurisdiction of the Government of India to judge the circumstances under which the Indian nationals have been detained and accused of the charges against them under the laws of an alien country.