SC pulls up Centre for prolonged custody of Pak prisoners

The Supreme Court on Tuesday pulled up the Union government for "total inaction" in dealing with prolonged incarceration of several foreign nationals, mostly Pakistanis, in Indian jails despite having completed their sentences and directed their repatriation within a month.

"There is total inaction and laxity on the part of the government. We are more concerned about the liberty of the persons who continue to be in jails despite serving their sentences," said a bench of justices R M Lodha and H L Gokhale while ruing that some prisoners had been kept in detention even without having any case registered against them.

There are 365 foreign nationals lodged in different jails including in Jammu and Kashmir, Rajasthan and Madhya Pradesh who have completed their sentences ranging from one to 10 years. In one case, an Iranian national, Abdul Sharif, is languishing in jail since 1995.

They are facing charges that include subversive activities, attempt to murder, infiltration and violation of local laws.

The bench noted that the prolonged detention of foreign nationals was violative of the constitutional right of the life and liberty granted under Article 21 to every person in the country, including the foreign nationals, infraction of which cannot be condoned by the courts.

"We accordingly direct that foreign nationals who have served out their sentence and whose nationality has been established and otherwise not required in any other offences in the country must be deported as early as possible.

"But in no case later than a month from today," the apex court directed.

The apex court asked Additonal Solicitor General Vivek Tankh to explain the procedure under which the prisoners have been detained even after completing their sentence.

"Please show us the procedure under which you have detained and kept them for prolonged incarceration. We are more concerned with the question of substantial justice which should prevail over the procedures," the bench observed.

The bench directed Tankha to furnish to the court the government's policy, if any, for dealing with such foreign nationals.

The court also termed as "infraction of human rights of the worst order" the cases relating to certain prisoners who were held under the preventive detention law under section 109 of the Criminal Procedure Code (CrPC) in jail for over a year.

"The offhand and adhoc manner in which the whole exercise is being done by the Government of India particularly concerning foreign nationals who have been serving out their sentence is regrettable," the bench said.

"We don't want your bureaucrats to sleep over the files and go into slumber. We don't want clarifications from section officers, please give us comprehensive details as to whether there is any bilateral policy.

"Don't compel us to summon the presence of a senior officer for clarification," the bench said.

The court noted that the case relating to alleged illegal detention of foreign nationals was pending with the courts since 2005 but the government was not taking any steps to deport them, even after they having completed their respective prison terms.

"We are constrained to observe that the Union of India failed to see the concern and urgency called for release of foreign nationals lodged in Indian jails.

"Matter has been lingering on regarding repatriation of those prisoners who have completed their sentence," the bench said.

Quoting clause 1V of the May 2008 agreement between India and Pakistan, the apex court said that consular access has to be provided to prisoners within three months, but no such steps seems to have been taken up by the Indian government.