Gujarat High Court
Girish M Das vs Union Of India & on 13 September, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
GIRISH M DAS....Applicant(s)V/SUNION OF INDIA C/WPPIL/138/2013 CAV JUDGEMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 138 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
================================================================ GIRISH M DAS....Applicant(s) Versus UNION OF INDIA &
4....Opponent(s) ================================================================ Appearance:
MR GIRISH M DAS, Party-in-Person for the Applicant(s) No. 1 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 13/09/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By this writ-application in the nature of a Public Interest Litigation, the petitioner, a practising advocate in this High Court, has prayed for the following relief :
(A) Your Lordships be pleased to direct the Union of India as provided under Art.73(1)(b) of the Constitution of India to exercise rights, authority and jurisdiction as are exercisable by the Government of India by virtue of treaty and agreement entered into with Pakistan, particularly in connection with the case of Sarabjitsingh in the interest of justice, and be pleased to direct the Union of India to approach to the International Court of Justice for punishment after investigation of crime as to who committed murder of Sarabjitsingh in Pakistani jail, who hatched conspiracy for murder in the custody, who removed vital part of body and commission of other connected offences including inhuman torture for the reason of distinction of race, colour, language, religion, political, national and social origin and for birth and other status as has been prohibited under agreements and under Arts.2,5,7 and 8 of the Universal Declaration of Human Rights adopted and ratified by India.
(B) Pending hearing and final disposal of this petition, Your Lordships be pleased to treat and consider the present PIL as continuing mandamus and be pleased to direct the Union of India to produce minutes of each hearing signed by the Registrar and the President of International Court of Justice as per Article 47 of the Statue of International Court of Justice.
(C) Your Lordships be pleased to grant any other and further relief/s as may be deemed fit and proper in the fact and circumstances of the case in the interest of justice.
The case made out by the petitioner in this petition may be summarised as under :
The issue raised by the petitioner in public interest is one relating to late Sarabjitsingh, an Indian who was attacked in a prison in Pakistan where he spent 22 years after being convicted of terrorism and who died on 2nd May 2013 at Jina Hospital, Lahore in Pakistan. Sarabjitsingh was an Indian national convicted of terrorism and spying by a Pakistani court. He was tried and convicted by the Supreme Court of Pakistan for a series of bomb attacks in Lahore and Faisalabad that killed 14 bystanders in 1990. Although he was condemned and sentenced to death in 1991 the sentence was repeatedly postponed by the Government of Pakistan. Five of his mercy petitions were rejected by the courts and the President of Pakistan, but in 2008, the Government nonetheless put off Sarabjitsingh's execution for an indefinite period.
On 26th April 2013, Sarabjitsingh was attacked in the Central Jail at Lahore allegedly by other prisoners. He was admitted to Jina Hospital, Lahore, in a critical condition with severe head injuries, in a state of coma, with a broken backbone.
On 2nd May 2013, he was reported to have died in Lahore. His body was brought to India by a special aircraft the same evening. The Indian doctors claimed that the second postmortem revealed that vital organs were missing from his body. The autopsy also revealed that his skull was broken into two pieces.
According to Mr.Das, the party in person, the killing of an innocent Indian national inside the Pakistani prison raises a question as to what value does the ordinary Indian citizen's life carry.
According to Mr.Das, this incident has shocked people all over the globe, more particularly, the people of this country. According to Mr.Das, Sarabjitsingh's life could have been easily saved had the Government and its authorities been more diplomatic, tactful and assertive in dealing with the matter. Each Indian citizen is really precious and the present petition has been filed to ensure that the neighbouring country Pakistan may not once again in future target innocent citizens, and for that purpose, the Government of India should take up the matter against the Government of Pakistan before the International Court of Justice.
According to Mr.Das, with the enactment of the Protection of Human Rights Act, 1993, India has acknowledged, incorporated and affirmed positively the implementation, execution and enforcement of international treaties, declarations and agreements as an essential tool for achievement of fundamental rights as guaranteed by the Constitution of India with the quint essence of the Charter of the United Nations.
Mr.Das submits that there is no reason for the Indian Government to sit silent, more particularly, when the Tashkent Declaration dated 10th January 1966 signed by the then Prime Minister of India late Shri Lal Bahadur Shastri, and the then President of Pakistan Mr.M.A.Khan, has been registered with the United Nations Security Council. The declaration firmly resolved to restore normal and peaceful relations between the two countries and to promote understanding and friendly relations between the people of the two countries. It further reaffirmed their obligation under the Charter not to have recourse to force and to settle their disputes through peaceful means.
According to Mr.Das, if that be so, then why the Tashkent Declaration is not being enforced by the Government of India in exercise of its powers under Article 73(1)(b) of the Constitution of India by taking up this issue before the International Court of Justice. Mr.Das would also submit that under Article 253 of the Constitution of India, the Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
Without mincing words, the submission of Mr.Das is that the approach of the Government of India in the matters like dealing with the atrocities committed by a neighbouring country has been very soft as a result of which although there are declarations like Tashkent Declaration yet, the same just remain on paper without being enforced before the International Court of Justice.
From the tenor of the argument of Mr.Das, it is very apparent that according to him the policy of the Government of India should be an eye for an eye.
Having heard Mr.Das, the party in person, and having gone through the materials on record, the only question that falls for our consideration in this Public Interest Litigation is, whether the petitioner has made out any case for grant of relief as prayed for in this petition, more particularly, a writ of mandamus against the Union for taking up the issue of murder of Sarabjitsingh in a Pakistan jail before the International Court of Justice on the strength of the Tashkent Declaration.
Mr.Das, in support of his submissions, has placed strong reliance on a decision delivered by this very Bench in the case of Jagjitsingh Aurora and others v/s. Union of India, reported in 2012(1) GLH 362.
Ordinarily, court would allow litigation in public interest if it is found :
That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
That the person approaching the Court has come with clean hands, clean heart and clean objectives;
That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
Before we proceed to consider the submissions of Mr.Das, it is necessary for us to look into the Tashkent Declaration on which strong reliance has been placed. The Tashkent Declaration reads as under :
TASHKENT DECLARATION The Prime Minister of India and the President of Pakistan, having met at Tashkent and having discussed the existing relations between India and Pakistan, hereby declare their firm resolve to restore normal and peaceful relations between their countries and to promote understanding and friendly relations between their peoples. They consider the attainment of these objectives of vital importance for the welfare of the 600 million people of India and Pakistan.
I The Prime Minister of India and the President of Pakistan agree that both sides will exert all efforts to create good neighbourly relations between India and Pakistan in accordance with the United Nations Charter. They reaffirm their obligation under the Charter not to have recourse to force and to settle their disputes through peaceful means. They considered that the interests of peace in their region and particularly in the Indo-Pakistan Sub-Continent and, indeed, the interests of the peoples of India and Pakistan were not served by the continuance of tension between the two countries. It was against this background that Jammu and Kashmir was discussed, and each of the sides set forth its respective position.
II The Prime Minister of India and the President of Pakistan have agreed that all armed personnel of the two countries shall be withdrawn not later than 25 February 1966 to the positions they held prior to 5 August 1965, and both sides shall observe the ceasefire terms on the ceasefire line.
III The Prime Minister of India and the President of Pakistan have agreed that relations between India and Pakistan shall be based on the principle of non-interference in the internal affairs of each other.
IV The Prime Minister of India and the President of Pakistan have agreed that both sides will discourage ant propaganda directed against the other country and will encourage propaganda which promotes the development of friendly relations between the two countries.
V The Prime Minister of India and the President of Pakistan have agreed that the High Commissioner of India to Pakistan and the High Commissioner of Pakistan to India will return to their posts and that the normal functioning of diplomatic missions of both countries will be restored. Both Governments shall observe the Vienna Convention of 1961 on Diplomatic Intercourse.
VI The Prime Minister of India and the President of Pakistan have agreed to consider measures towards the restoration of economic and trade relations, communications as well as cultural exchanges between India and Pakistan, and to take measures to implement the existing agreements between India and Pakistan.
VII The Prime Minister of India and the President of Pakistan have agreed that they will give instruction to their respective authorities to carry out the repatriation of prisoners of war.
VIII The Prime Minister of India and the President of Pakistan have agreed that the two sides will continue the discussion of questions relating to the problems of refuges and eviction/ illegal immigrations. They also agreed that both sides will create conditions which will prevent the exodus of people. They further agreed to discuss the return of the property and assets taken over by either side in connection with the conflict.
IX The Prime Minister of India and the President of Pakistan have agreed that two sides will continue meetings both at the highest and at other levels on matters of direct concern to both countries. Both sides have recognized the need to set up joint India-Pakistani bodies which will report to their Government s in order to decide what further steps should be taken.
X The Prime Minister of India and the President of Pakistan record their feelings of deep appreciation and gratitude to the leaders of the Soviet Union, the Soviet Government and personally to the Chairman of the Council of Ministers of the USSR for their constructive, friendly and noble part in bringing about the present meeting which has resulted in mutually satisfactory results. They also express to the Government and friendly people of Uzbekistan their sincere thankfulness for their overwhelming reception and generous hospitality.
They invite the Chairman of the council of Ministers of the USSR to witness this Declaration.
(Signed) Lal BAHADUR (Signed) M.A.KHAN, F.M. Prime Minister of India President of Pakistan Tashkent, 10 January 1966.
We shall now look into the two articles of the Constitution of India on which strong reliance has been placed :
Article 73 of the Constitution reads as under :
Article
73. Extent of executive power of the Union. (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.(2)
Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.
Article 73 sets out the extent of the executive power of the Union. Such power, naturally, is subject to the provisions of the Constitution and is primarily covered by sub-clauses (a) and (b) of Article 73(1). As regards sub-clause (b), it must be read with Article 253 and Entry 14 of List-I of Schedule VII.
The power to enter into treaties is contained in Article 253 which reads as under :
Article
253. Legislation for giving effect to international agreements. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
The making of a law to implement a treaty would be necessary if such treaty is likely to restrict the rights of the citizens or others. Although a view has been taken by the Supreme Court in the case of Union of India v/s. Azadi Bachao Andolan, reported in AIR 2004 SC 1107, that if the rights of the citizens or others which are justiciable are not going to be affected, no legislative measure is needed to give effect to the agreement or treaty, the another view is that a legislative measure may not be necessary for entering into a treaty and this may be done under the executive power conferred under Article 73. But implementation of a treaty, irrespective of whether it affects rights of citizens or not must be an Act of Parliament. Article 253 does not make any distinction between a treaty that affect the rights of a citizen and that which does not.
The plain reading of the Tashkent Declaration would suggest that the two countries, namely, India and Pakistan resolved to restore normal and peaceful relations and to promote understanding and friendly relations between their people. The Declaration reaffirmed the obligation on the part of both the countries under the Charter not to have recourse to force and to settle their disputes through peaceful means.
We do not find anything from the Tashkent Declaration which provides for any remedy to either of the countries to take care of a situation like the murder of Sarabjitsingh in a Pakistan jail. While serving the sentence in a jail in Pakistan, he was attacked by the other inmates in the jail for a reason which is not forthcoming, and succumbed to the injuries on 2nd May 2013. It appears that with the intervention of the Government of India, the body of Sarabjitsingh was brought to India by a special aircraft the same evening.
In such circumstances, it is very difficult for us to accept the submission of Mr.Das that the murder of Sarabjitsingh in a Pakistan jail could be termed as violation of the Tashkent Declaration.
The International Court of Justice acts as a world court. The Court has a dual jurisdiction: it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction).
Jurisdiction of International Court of Justice The Court is authorized to settle legal disputes between the States (contentious jurisdiction) and to give advisory opinions on legal questions referred to it by the authorized United Nations organs and specialized agencies (advisory proceedings).
Contentious proceedings:
Only the States may apply to and appear before the International Court of Justice. The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:
by entering into a special agreement to submit the dispute to the Court;
by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a dispute of a given type or disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court;
through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. A number of these declarations, which must be deposited with the United Nations Secretary-General, contain reservations excluding certain categories of dispute.
The International Court of Justice on the contentious cases has binding effect on the States concerned. The enforcement of the judgment is supervised by the UN Security Council.
According to the Oxford's Principles of Public International Law, 7th Edition, the concept of international criminal justice is both simple and complex. It is simple in the sense that certain types of wrongdoing are generally recognized as international crimes, which may be prosecuted both before national courts and, in so far as they have competence, international criminal courts.
CRIMES UNDER INTERNATIONAL LAW It is necessary to begin by identifying those offences recognized as crimes under international law for which individuals can be held responsible. An historical sequence is called for because, as in the Pinochet case in the English courts, it is possible that the date on which an offence became a part of general or customary international law may be legally relevant.
(A) THE NUREMBERG CHARTER AND THE RESOLUTION OF THE GENERAL ASSEMBLY OF THE UNITED NATIONS.
The International Military Tribunals at Nuremberg and Tokyo functioned on the basis of Charters which required the punishment of individuals for war crimes, crimes against humanity and crimes against peace. In Resolution 95(1) adopted unanimously on 11 December 1946, the General Assembly affirmed 'the principles of international law recognised by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal'.
On 21 November 1947 the General Assembly established the International Law Commission and on the same day another resolution was adopted in which that Commission was directed to:
{a) Formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and {b) Prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in subÂparagraph (a) above.
In response the International Law Commission formulated the following 'crimes under international law':
Principle VI. The crimes hereinafter set out are punishable as crimes under international law:
a. Crimes against peace:
Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
b. War crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
c. Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.
Principle VII. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.
When the work of the International Law Commission was examined by the Sixth (Legal) Committee of the General Assembly, eighteen states considered that the Nuremberg Charter and the principles derived from it had become a part of international law.
(B) THE DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND.
In 1996 the International Law Commission adopted twenty draft articles constituting a Code of Crimes against the Peace and Security of Mankind. The Commission recommended that the General Assembly select 'the most appropriate form which would ensure the widest possible acceptance of the draft Code'. The Code is related to the responsibility of individuals for the relevant crimes. Inevitably, the draft articles have become more or less redundant in face of the successful negotiation of the Statute of the International Criminal Court: see below.
(C) INTERNATIONAL CRIMES: THE POSITION IN GENERAL INTERNATIONAL LAW.
There is, at this stage in the historical development of the concept of international crimes, sufficient material to provide a reliable assessment of those offences which are recognized as a part of general or customary international law. In this context the provisions of the Statute of the International Criminal Court constitute good evidence of the offences forming part of general international law. The provisions defining international crimes are as follows:
(i) Crimes within the jurisdiction of the Court (Art. 5)
1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
The crime of genocide;
Crimes against humanity;
War crimes;
The crime of aggression.
2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
Genocide (Art. 6) For the purpose of this Statute, 'genocide' means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
Killing members of the group;
Causing serious bodily or mental harm to members of the group;
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.
In the Nuremberg Charter the category of 'crimes against humanity' encompassed genocidal acts but genocide did not emerge as a special category until the adoption of the Convention on the Prevention and Punishment of Genocide in 1948. Article 6 of the ICC Statute is based upon Article II of the Genocide Convention.
Crimes against humanity (Art. 7) I. For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
Murder Extermination;
Enslavement;
Deportation or forcible transfer of population;
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
Torture;
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Paragraph 2 of Article 7 provides a series of definitions of terms used in paragraph 1. Crimes against humanity were included in the Charter of the Nuremberg IMT (Article 6(c)), but they were to some extent related to the war. This association was removed in the Principles formulated in 1950 by the International Law Commission (see above). In the Pinochet case Lord Browne-Wilkinson held that 'ever since 1945 torture on a large scale has featured as one of the crimes against humanity.....' The definition in the ICC Statute is not qualified in a similar way, and does not involve a pattern.
War crimes (Art. 8) The Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as a part of a large-scale commission of such crimes.
2. For the purpose of this Statute, 'war crimes' means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts (in part only):
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;...
Article 8 also deals with the standards applicable 'in the case of an armed conflict not of an international character', based upon Article 3 common to the four Geneva Conventions of 12 August 1949: see Article 8(2)(c), (d), (e), and (f) of the Statute of the ICC.
(ii) The Crime of Aggression The Statute of the International Criminal Court also includes the crime of aggression, as Article 5 (above) indicates. The content of the crime is subject to the outcome of further negotiations. The Nuremberg Charter of 1945 defined 'crimes against peace' as follows:
namely planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing.
The definition of aggression adopted by consensus in the General Assembly in 1974 placed emphasis (in Article 1) upon violations of the Charter of the United Nations (see infra).
The Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in 1996 defines the crime of aggression as follows in Article 16:
An individual who, as leader or organiser, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State, shall be responsible for a crime of aggression.
(iii) Torture in time of Peace It is reasonable to categorize torture in time of peace as an international crime, and Judge Cassese has adopted this approach.
Such an approach has several advantages. First, it confirms the status of torture as an offence which exists independently both of the existence of war or armed conflict, and of crimes against humanity. In the latter context the association with crimes against humanity had the consequence that it was sometimes assumed that torture was only an international crime if it involved a pattern of activity. Recent decisions in various jurisdictions have confirmed the status of torture as a crime under general international law without requiring a pattern of activity. A particularly important decision in this respect is that of the ICTY in Furundzija, where the Court referred to the Declaration adopted by the General Assembly in 1975 and the United Nations Convention Against Torture adopted in 1984.
In spite of these developments the categorisation issue still appears in the provisions of the Statute of the ICTY, the Rwanda Tribunal, and the Rome Statute of the ICC, in which torture is listed as a form of crimes against humanity.
In the present case, we do not find any breach of the terms of any treaty or agreement between the two countries. At the cost of repetition, we may state that the case of Sarabjitsingh is an isolated case of murder by few inmates or unknown persons in a jail in Lahore, Pakistan, while Sarabjitsingh was serving the sentence as a convict accused. We do not find any trace of a war crime which could be said to have been committed under the international law.
Mr.Das would submit that even otherwise the murder of Sarabjitsingh could be termed as a gross violation of human rights. According to Mr.Das, the Government of India should be directed to take up the issue with the United Nations Human Rights Council. According to Mr.Das, the Government of India should get the act of Sarabjitsingh's murder to be declared a war crime by the United Nations and the people responsible for the war crime punished according to the rulings of the Geneva Convention.
In the aforesaid context, we may only say that the Human Rights Council is an intergovernmental body within the United Nations system responsible for strengthening the promotion and protection of human rights around the globe and for addressing the situation of human rights violation and making recommendations on them. It has the ability to discuss all thematic human rights issues and situations that require its attention. This Council meets at United Nations office at Geneva. However, unlike the International Court of Justice there is a direct access to the human rights institutions. Even the kith and kin of late Sarabjitsingh can approach the United Nations Human Rights Council. A communication related to violation of human rights and fundamental freedom can be submitted by a person or a group of persons claiming to be the victims of violation of human rights and fundamental freedom or by any person or group of persons, including non-governmental organizations, acting in good faith, in accordance with the principles of human rights.
In such circumstances, it is difficult for us to accept the submission of Mr.Das that this Court should issue a writ of mandamus to the Union of India for taking up the issue with the United Nations Human Rights Council at Geneva.
The reliance placed by Mr.Das on the decision in the case of Jagjitsingh Aurora (supra), in our opinion, is completely misconceived. In the said case, the issue was one with regard to release of Indian soldiers languishing in different jails in Pakistan as prisoners of war. In that case, the materials on record revealed that in the meeting at Lahore on February 20, 1999 between the Prime Minister of India and the Prime Minister of Pakistan, it was agreed by both the Prime Ministers in the agreement signed at Lahore that the committee of two members would be formed for investigation of civilians as well as missing prisoners of war. It was also agreed between both the Prime Ministers for implementing the Simla Agreement dated July 3, 1972. It was noticed by us that even after 27 years, the Pakistani Government had not acted upon and not implemented honestly the Simla Agreement dated July 3, 1972. One of the conditions in the Simla Agreement was that both the countries would return the prisoners of war captured by the respective country. We also noticed on the basis of the materials on record that the Indian Government had returned all 93,000 soldiers who were captured in Pakistan (Dhaka) but the Pakistani Government had not acted honestly and not adhered to the fact that according to the Simla Agreement from the Kashmir Front 2238 officers and soldiers of the Indian Army were found missing and even their dead bodies were not recovered from the war front while the Pakistani Government had returned only 617 prisoners to Indian Government on December 2, 1972.
We also took notice of the fact as the same was apparent from the materials on record that the Indian prisoners of war were detained in the jails of Pakistan due to the gross negligence and carelessness of the Government of India and its officers at the time of exchange of prisoners of war.
In such circumstances, the question before us in that matter was, whether there was inaction on the part of the Union of India in not referring the matter to the International Court of Justice complaining violation of the human rights or terms of the Simla Agreement at the instance of Pakistan.
We answered the aforesaid question by observing as under :
16.2. A conjoint reading of articles 34 and 36 of the statute of the International Court of Justice which is integral part of the Charter of the United Nations makes it abundantly clear that it is only the States which can approach the International Court in respect of the matters specially provided in the Charter of the United Nations or in the treaties or conventions in force. There is no dispute that the Simla agreement entered into between the two countries is a treaty in force and binding between the two States. At the end of the 1971 Indo-Pakistan war, the said treaty was entered into for resolving the disputes arisen consequent to the said war between the parties. The parties agreed before us that the repatriation of the POWs of the two countries in the past was made pursuant to the said treaty.
16.3. Thus, for enforcement of the said agreement alleging breach of the terms of the same at the instance of one of the parties to the treaty, the other party can surely approach the International Court of Justice. Article 40 of the Statute, quoted above, clearly demonstrates that an action can be brought by either the notification of special agreement or by a written application addressed to the Registrar indicating the subject of the disputes and the parties thereto. There is no mandate of only the consensus application by both the parties before the Court as the condition of presentation of such application either in the treaty or in the Statute. Thus, we do not find any substance in the contention of the learned counsel for the Union of India that the International Court of Justice can in this case be approached only by joint application of the two States.
18. In the case before us, there is no dispute that according to the decision taken by the Union of India all the war-prisoners captured by the Indian Army have been released in lieu of the captured Indian prisoners. There is also no dispute that even according to the decision taken by the government of India and the Government of Pakistan, all the Indian war prisoners captured by the Pakistani Army should be released. Only dispute is as regards the existence of those war prisoners in Pakistan. It is admitted in the affidavit filed by the Respondent that the Pakistan Government has been repeatedly approached at highest level to return our missing Defence Personnel but every time they have denied having any Indian prisoner in their captivity and that it is not correct to state that the Indian Government has not made serious efforts to get back our missing Defence Personnel. According to the affidavit, as a matter of fact, the matter had been taken up with Pakistan Government at the highest level of Prime Ministers and efforts are still on to ascertain the whereabouts of our Missing Defence Personnel.
19. Now the question is whether after the expiry of forty years of ceasefire and execution of the treaty enabling any of the parties to approach the International Court, the Union of India can successfully resist the claim of the next of the kin of the war-prisoners by taking the defence that it is committed to resolve all matters with Pakistan on bilateral basis without third party mediation and Government of India has been taking all possible steps to sort out this issue.
20. In our opinion, the act of approaching the International Court of Justice is not an instance of third-party-mediation but one of enforcement of the right of the State to have its imprisoned soldiers returned back to their motherland and to enable them to live with dignity, an obligation cast upon the State under Article 21 of the Constitution. The Simla Agreement has conferred upon the Union of India a right to enforce its prerogative right to have custody of all the imprisoned defence personnel, if denied by the other signatory to the Agreement by approaching the International Court of Justice and inaction on the part of the Union of India to enforce such right amounts to failure on its part to protect the life and liberty of its citizen definitely enabling the next of kin of the imprisoned soldiers to approach a High Court under Article 226 of the Constitution of India and pray for a direction upon the Central Government to approach the lawful forum for enforcement of the fundamental right of protection of life and personal liberty of its imprisoned soldiers. It is needless to mention that the imprisoned Indian soldiers in Pakistan are the real beneficiaries of the rights accrued in favour of the Government of India for the breach of the terms of Simla Agreement at the instance of Pakistan.
21. We are quite conscious of the position of law that a writ-court cannot direct the Union of India to take any decision in a particular way regarding any of its policy towards the neighbouring country or as regards its war policy.
But where the concerned ministry has already taken a decision regarding release of its war-prisoners in lieu of transfer of imprisoned Pakistani soldiers, such a decision casts a duty upon it to take step for release of its own soldiers who are allegedly captivated in Pakistan. Thus, a prayer made by next of kin of such imprisoned soldiers to enforce the said agreement by approaching International Court of Justice for proper investigation and direction for repatriation is maintainable when the Union of India is also satisfied that the grievance of the next of kin is justified and at the same time, the agreement provides for approaching the International Court of justice.
22. We cannot lose sight of the fact that unlawful imprisonment for more than 40 years is a gross violation of human right and in a case, where the Union of India is itself satisfied that there is sufficient material to conclude that the version of the Government of Pakistan is not correct, it must make out specific defence for not availing of its lawful remedy provided in the treaty for protecting the life and personal liberty of its soldiers before asseverating before the writ-court that the writ-application should be dismissed.
23. After having admitted on the floor of Parliament that it believes that the soldiers are imprisoned in the jails of Pakistan and that it is making all efforts to get them back, and the then Prime Minister of the Country having also supported the grievance of the imprisoned soldiers, the Union of India now cannot desist itself from approaching the only lawful forum for protecting the life and personal liberty of its soldiers when long forty years have elapsed in the meantime.
24. Thus, this is not a case of interference at the instance of a writ-court with the policy-decision of the Union of India but is one of inaction on its part in not taking lawful step for protecting the life and personal liberty of its citizens who did not hesitate to risk their life and comfort for protecting their motherland.
Thus, it is very clear that the facts in the case of Jagjitsingh Aurora (supra) were altogether different and a strong case for enforcement of the Simla Agreement between the two countries was made out by the petitioners.
So far as the other issues which have been raised by Mr.Das are concerned like what should be the approach or the attitude of the Government of India in the matter like the one of the present nature, would again be a matter of policy and it is for the appropriate Government to adopt a policy to take care of the situation, but this Court sitting in a writ jurisdiction under Article 226 of the Constitution of India should not advise or comment anything on such matters.
For the foregoing reasons, we are of the opinion that there is no merit in this petition and the same deserves to be rejected.
This writ-application is accordingly rejected with no order as to costs.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 28 of 28