Tuesday, August 16, 2022

Supreme Court issues notice in PIL filed for setting up mechanisms for protecting the rights of Indian prisoners of war

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The Supreme Court issued notice on a Public Interest Litigation (PIL) filed seeking setting up of domestic as well international mechanisms for protection of rights of Prisoners of War. 

The Division Bench of Justices DY Chandrachud and Surya Kant said that the plea raises a pertinent issue, and sought the response of the Central government.

It is an important matter. Notice issued. To be listed after 3 weeks. Liberty to serve through standing counsel” the Court said.

The plea was filed by the Jasbir Kaur, the wife of Major Kanwaljit Singh and Bir bahadur Singh who is a retired soldier of the Indian Army and also the Secretary General of Voice of Ex Servicemen Society.

The plea is marked for External Affairs Ministry, Defence Ministry and Chief of Army Staff as respondents.

The plea informs that 54 known PoWs have been detained by Pakistan since the 1971 Indo-Pak war.

Domestic and third party evidence had surfaced from time to time, with regards their illegal and torturous detention in the Pakistani jails, in utter disregard for fundamental human rights, local and international laws, more specifically the Geneva Convention for Treatment of Prisoners of War. There could be more of them, however the matter of these 54 PoWs stands amply covered and scripted in the Gujarat High Court Order dated 23 Dec 2011.., “ 

the petition stated.

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According to the PIL ,despite existence of a specific bilateral agreement in force between the UOI (Union of India) with the detaining power Government of Pakistan, the heinous crimes of illegal detention and torture of helpless prisoners of war, is not getting due attention.

It also mentioned that against the Universally applicable Geneva Convention no one has been brought to book till date and nor have the respondents succeeded in release of one single out of the 54 PsOW (Prisoners of War)

In the aforesaid matters respondent UOI and specifically the Indian Army have not initiated any concrete steps for establishment of a mechanism for effective enforcement of provisions of the Geneva Convention despite elapse of more than 70 years, since the same first came into force, alleged the PIL.

It is stated that there were no major developments in the intervening period of almost 27 years since the Shimla agreement. The subject of PsOW was majorly revived during the meeting between the Prime Ministers Atal Bihari Bajpai and Mian Nawaj Sharif, at Lahore on February 20, 1999.

The plea did not fail to highlight the incident of torture inflicted upon Captain Saurabh Kalia and his men who were captured during the 1999 Kargil war with Pakistan.

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“One Naik Gule Khandan of the Pakistan army had confessed in an open public felicitation function held in Pakistan and aired on youtube, about hunting down Capt Kalia’s patrol. Their bodies bearing ante mortem injury marks were handed over by Pakistan army on 09.06.1999, after inhuman captivity and torture since 15 May 1999 when the said patrol had fallen into their hands, under unknown circumstances. There have been many other dastardly incidents of barbarianism inflicted upon Indian soldiers by forces operating under control of the said hostile neighbour, which stand unpunished till date,” the petition submitted.

It was agreed in the ensuing agreement that the committee of two members would be formed for investigation of civilians as well as the missing prisoners of War. However, even the said initiative failed to yield any results. The remainder of the missing officers and soldiers from Chhamb, E Jaurian Sector never returned except the 617 who were repatriated to India on December 2, 1972.

“Respondents are best equipped to understand the underlying behaviour and the ideology of Pakistan as a nation. It’s exhibited behaviour reveals an underlying ideology of respect only before an assertive and powerful entity rather than ends of humanity, right or wrong. Respondents’ claim that they have been taking all possible steps for ensuring release of PsOW, sounds utterly hollow and devoid of any conviction.”

The PIL alleged that instead of adopting coercive methods starting with obtaining repatriation 1971 war PsOW till today, respondents have not even stepped out of their comfort zone and day to day existence on the subject matter. Without discussing the adequacy or otherwise of the safeguards provided under the Geneva convention, even the remedies short of approaching the ICJ inter alia available under the Article-13, 14 and Part-VI- Section-1 Articles 126 to 132 of the said Convention, have not even been availed for securing justice with respect to treatment of the PsOW.

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The Petitioner highlighted that the legal provisions dealing with the aspects of persons missing in action and the PsOW have retained their coloniality in totality. Contained in Army Rules-177, 178, 179, and 181, and Defence Services Regulation for the Army Paragraph 524, the said colonial provisions are aimed at ascertaining the conduct, allegiance and loyalties of the ill fortuned POW, rather than acquisition of his possible whereabout and condition, identification of enemy unit/sub unit taking him PsOW, etc or gathering and record of evidence, concerning the crucial aspects of his safe return from the enemy captivity for invoking the multiple remedies under the aegis of the Geneva Convention.

Besides these crucial aspects, it is submitted that a timely court of inquiry with adequate scope of scrutiny would also facilitate finding and fixing the responsibility on anyone whose acts of omission, commission or even dereliction of bonafide duties in the face of enemy resulted in anyone succumbing to become a POW for no fault of his and for reasons beyond his control.

Warfare being a collective and group effort, faults and dereliction committed by any accompanying member or errors of planning and execution by senior commanders, invariably lead to other(s) soldier of the team becoming PsOW, which could be ascertained only through a thorough investigation on all possible crucial aspects leading to such an unfortunate outcome, especially in the attack operation of war.

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Notwithstanding the scope of reforms in the colonial provisions adopted from the British colonial ruling power, inter alia the armed forces acts, rules and defence regulations made thereunder, respondents seem to have not followed even the said mandatory legal provisions in the matters at hand, which could have served as cogent and material evidence, regarding the detaining power i.e. Pakistan’s violation of the Geneva convention, against citizens and members of the Indian armed forces.

“Respondents’ inaction is apparently actuated either by non observance of available mechanisms or vital and material deficiencies in the same. Remedies in either case, lies with the State and there is no better time than now with their growing clout and position of dominance in the international arena, which could be utilised for the good of humanity across borders. Two fold action, inter alia, suitably amending the domestic laws and procedures governing the armed forces and the other on the international arena to adopt a better mechanism to enhance the efficacy and enforcement of the Geneva Convention are sought to be undertaken by the potent and strong respondents, now having the requisite capacity, especially as Presiding Member of the United Nation Security Council, besides a towering and most influential world leader heading the Government. Much good could now accrue to the cause of humanity.

The biggest fears and apprehensions every soldier, sea or air man of the world facing the armed forces inimical to his own, is irresistibly led to entertain, could be remedied and obviated for all times to come. This is the greatest service mankind could collectively do to the soldiers’ fraternity, who have given their everything to uphold the ‘rule of law’ as envisaged by their respective governments, judiciary and masses, inter alia their nations collectively”

-the PIL reads.

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