An Indian judgment - I.A Rehman - Thursday 28th April 2011

THE Indian Supreme Court`s judgment that led to the release and repatriation of an Indian national, Gopal Dass, deserves attention for more reasons than one. The judgment by J.J. Markandey Katju and Giyan Sudha Misra, written by the former, begins with a couplet by Faiz Ahmed Faiz.
Qafas udas hai yaro saba se kuchh to kaho / Kahin to behr-i-Khuda aaj zikr-i-yar chaley.
There is reason to feel gratified at the disclosure that the echoes of the Faiz centenary celebrations have reached the apex court in India, even if the reasons for quoting this particular couplet here are not very obvious, and that the works of great poets/writers can help build bridges of understanding between the estranged South Asian neighbours.
The court had before it a writ petition under Article 32 of the Indian constitution, praying for a direction to the Union of India to take steps for the release and repatriation of Gopal Dass who was allegedly detained in Pakistan.
According to the facts given by the detainee`s brother, Gopal Dass was tried by a field general court martial at Sialkot and awarded life sentence on Dec 27, 1986 under Section 59/3 of the Pakistan Official Secrets Act, 1923. The sentence was confirmed by the commander, 10th Brigade. He was lodged in different jails, and presently was allegedly in Mianwali jail in Pakistan.
The prisoner-petitioner had stated that the whole of his family had been suffering since 1986. His brother made several representations to the Indian authorities concerned to take up the matter with the Pakistani authorities for taking necessary action for his release but nothing had been done.
An affidavit filed by the Indian Ministry of External Affairs stated that although the petitioner was an Indian citizen, he had been convicted by a Pakistani court, and hence his detention was governed by the law in force in Pakistan. The Indian government had an agreement with Pakistan on consular access, and had been continually pursuing the issue of release of Indian prisoners in Pakistani jails.
A list of prisoners in Pakistani jails received from Pakistan`s Ministry of Foreign Affairs in January 2010 confirmed that the petitioner had been awarded a sentence of 25 years from June 27, 1986. The Indian High Commission in Pakistan had requested Pakistan`s Ministry of Foreign Affairs to urgently clarify whether the court order sentencing the petitioner required pre-trial detention to be adjusted in the sentence. The high commission was still waiting for a response.
The affidavit also took note of the work of the India-Pakistan Judicial Committee on Prisoners, consisting of retired judges, four from each side. The petitioner was produced before this committee during their visit to Pakistani jails in June 2008. The committee had held several meetings and made certain recommendations, and the response was awaited.
The story doing the rounds in Pakistan was that Gopal Dass had been charged with spying and had been convicted after trial by a field court martial, and that the Pakistani public did not like `spies` to be treated lightly.
After hearing the petitioner`s counsel and the solicitor general of India, the court observed: “We cannot give any direction to the Pakistan authorities because we have no jurisdiction over them. The Indian authorities have done all that they could in the matter. However, that does not prevent us from making a request to the Pakistani authorities to consider the appeal of the petitioner for releasing him on humanitarian grounds by remitting the remaining part of his sentence.” Merchant of Venice
The court noted what it considered a discrepancy on record — that according to the Indian government the prisoner had been awarded imprisonment for 25 years on June 27, 1986, that is, he could be released by the latest on June 26, 2011 but the decision of the court martial had said he had been sentenced to life imprisonment. (Similar observations with reference to the sentence of life imprisonment have been made by Pakistan`s superior courts.) In any case, the court recalled Portia`s speech in Shakespeare`s in support for its recommendation for clemency: `The quality of mercy is not strain` d;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest: It blesseth him that gives and him that takes.
It is an attribute to God Himself;
And earthly power doth then show likest God`s
When mercy seasons justice.`
In the end, the court said the Supreme Court of Pakistan “deserves to be commended” for ordering the release of 442 Indian prisoners who had been languishing in Pakistani prisons. Notice was also taken of the fact that India “reciprocated the gesture by releasing many Pakistani prisoners (held) in our jails. Thus there is a humanitarian spirit on both sides, which we applaud”.
Soon after the court`s request for remission of Gopal Dass`s remaining part of the sentence was received the Pakistan president conceded it and Gopal Dass was reunited with his family after 27 years.
The case needs to be given wide publicity in both India and Pakistan in the hope that the people of the two countries will rediscover their potential to be good to one another. It also throws light on the scope for fruitful cooperation between the judicial authorities of India and Pakistan to complement each other`s efforts for mitigation of their people`s sufferings.
The work of the judges` committee has vindicated its claim to continued support. Further, the need for revising the India-Pakistan protocol on prisoners is pretty obvious.
It is no secret that Indian and Pakistan authorities treat each other`s nationals in their jails worse than prisoners anywhere in the civilised world are treated, with Guantanamo Bay standing out as a most perverse exception. It is time this shared stigma was washed off.

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