The apex court said though India has a better track record of treating cases pertaining to foreign nationals than other countries, yet it needs to show some "urgency" in such cases as even the foreign nationals are entitled to the protection of Article 21 (personal liberty).
The foreign nationals were arrested more than a decade ago on the charge of indulging in militant activities, border crossing, causing public breach and other offences. Though most of them have served their sentence, they continue to languish in jails without being released or repatriated, according to a public interest litigation filed by Bhim Singh of J&K Panthers Party.
It was alleged that government was not taking adequate steps to provide them consular access to Pakistan High Commission for their deportation.
A bench of justices Aftab Alam and R M Lodha asked Solicitor General of India Gopal Subramanium to conduct verification of the claims and pass necessary orders for their repatriation. The bench asked the government to bring in a suitable mechanism to ensure that such foreign nationals are not forced to remain in jails as courts are being frequently flooded with complaints about Pakistani nationals being incarcerated in jails despite having serving their sentence.
"We deeply appreciated your efforts in this regard. But we feel a little more urgency is required in matters relating to Article 21. Our record in this regard is better than many other countries. But we expect a sense of urgency," the bench said when Subramanium submitted that the government has been examining each case individually and repatriating a large number of Pakistani nationals over the years.
However, the bench was not impressed with the argument. "We are really shocked that it has taken years for release of the prisoners even after they have satisfactorily completed their sentence. This is a very serious matter. We can't overlook it. The deportation must take place within 15 days," the bench said.
But the Solicitor General submitted that he needs time to verify the allegation vis-a-vis the 61 Pakistani nationals and gave an undertaking to the court that their cases would be verified and if found true would be released in the next four weeks even without waiting for any formal order from the court. The bench posted the matter for further hearing after four weeks.
Earlier, Gonzalves moved three separate applications on behalf of the victims in which he alleged that 752 Pakistani prisoners are languishing in various jails. He submitted that out of these, 205 are awaiting repatriation, 318 are awaiting consular access and 205 are awaiting confirmation of their nationality status.
According to the government, in pursuant of the court's direction it had so far repatriated 57 Pakistani prisoners. But in the case of one Abdul Quadri Khwaja, the Pakistan government has refused to take him since they feel he was an Afghan national.
