The seven-page judgement by Supreme Court Justices Markandey Katju and Gyan Sudha Misra dated March 14, 2011, came in response a writ petition (Writ Petition (Criminal) No. 16 Of 2008), filed on Dass' behalf by his brother Anand Vir under Article 32 of the Constitution of India seeking for the Indian government "to take immediate and necessary steps for release and repatriation of the petitioner" through diplomatic channels.
The judgement begins with an Urdu couplet from a poem by Faiz Ahmed Faiz: "Qafas udaas hai yaaron sabaa se kuch to kaho/ Kaheen to beher-e-khuda aaj zikr-e-yaar chale".
The judges also quote Portia's famous speech from Shakespeare's 'Merchant of Venice': "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."
The judgement notes that the prisoner's family has suffered immensely since his incarceration, and made several unsuccessful appeals asking Indian authorities to take up the matter with Pakistan to obtain repatriation on humanitarian grounds.
The Pakistan Border Security Force arrested Gopal Dass in July 1984 when he alleged mistakenly crossed the border. He was tried by a Field General Court Martial at Sialkot Cantonment in Pakistan and awarded a life sentence on Dec 27, 1986 under Section 59/3 of the Pakistan Official Secrets Act, 1923. However, there is also reference to a 25-year sentence by a Pakistan court with effect from June 27, 1986 - which means he will be released on June 26, 2011.
Noting the discrepancy, the judges "think it appropriate to make an appeal on humanitarian grounds to the Pakistan authorities to release the petitioner as he has served almost 27 years in jail."
The judgement cites the bilateral agreement on Consular Access to prisoners as well as the 'India-Pakistan Judicial Committee on Prisoners' consisting of retired Judges, four from each country, set up to recommend steps to "ensure humane treatment and expeditious release of prisoners of the respective countries in each other's jails". This Committee had met with Indian prisoners, including Dass, during their visit to Pakistani jails in June 2008.
"We cannot give any directions to Pakistan authorities because we have no jurisdiction over them. The Indian authorities have done all that they could in the matter," notes the judgement. "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."
The judgement also refers to a Pakistani delegation headed by former Judge of the Pakistan Supreme Court Nasir Alam Zahid that visited India to seek the release of Pakistani prisoners in Indian jails last year. Accompanied by veteran Indian journalist Kuldip Nayyar and famed film producer Mahesh Bhatt of the Hind-Pak Dosti Manch, the delegation met the Prime Minister, Union Home Minister, Minister of External Affairs and other authorities in India. They informed the Indian authorities about their petition filed in the Pakistan Supreme Court that led to the Court ordering the release of 442 Indian prisoners languishing in Pakistan jails.
"The Pakistan Supreme Court deserves to be commended in this connection," note the Indian judges, adding: "They requested for similar release of Pakistani prisoners in Indian jails, and the Indian Government generously reciprocated the gesture by releasing many Pakistani prisoners in our jails. Thus there is a humanitarian spirit on both sides, which we applaud."
"We, therefore, request the Pakistani authorities to consider the appeal of the petitioner for remitting the remaining period of sentence and release him (as well as other similarly Indian prisoners) in the same spirit."
"We are not alone!" exulted Mahesh Bhatt on twitter when tagged with this information. "This is path breaking!"
"It is an unprecedented judgement," responded senior Indian journalist Jatin Desai, who has also been working on the issue of prisoner repatriations on both sides. "Very, very important for peace loving people in India and Pakistan."
- Beena Sarwar
Wednesday, March 16, 2011
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