The golden mean By: Manish Tewari

From Indian Express

The jury is still out on where the median on freedom of thought and expression lies

A five-judge bench of the Supreme Court is currently hearing a batch of matters pertaining to, inter-alia, the formulation of norms and guidelines for reporting sub-judice matters, coverage of news by the electronic media, minimising presentation of sexual abuse and violence on TV channels, contempt proceedings against journalists for publishing confessional statements of an accused made to the police and to making the police liable for tarnishing the reputation of an accused by releasing details of a matter under investigation.

Concurrently, a division bench of the Lucknow bench of the Allahabad high court has passed an order restricting reportage on the movement of troops. The Standing Committee on Law and Justice and the Lok Sabha recently saw an animated debate on the issues of oral observations made by the judiciary during court proceedings and obiter dicta. It culminated in the incorporation of an axiomatic clause in the Judicial Accountability Bill that bars judges

from making “unwarranted” comments against constitutional and statutory functionaries. It further ordains that judgments should speak for themselves.

Reports have appeared that a state government is planning to launch a TV channel and a newspaper to disseminate “correct” information to people. The social media has empowered almost everyone who chooses to become a part of it to instantly turn broadcaster, throwing both restraint and responsibility to the winds. The government is attempting to balance competing interests in trying to find an acceptable middle ground. To top it all is the ever increasing anxiety, if not unease, among a large swathe of the population about the sensational, if not hysterical, nature of media discourse. An intense and undulating debate is unfolding across institutions and societal paradigms to define both the core and the frontiers of the freedom of speech and expression. The jury is still out on where the golden median lies in apparently conflicting narratives.

Article 19(1)(a) of the Constitution of India guarantees to all citizens the right to freedom of speech and expression. However 19(2) caveats the right by giving the state powers to make laws to impose reasonable restrictions on these liberties. Notwithstanding these constitutional caveats in Indian legislatures, judicial authorities and people’s movements across democracies have consistently struggled to not allow any substantive erosion of the freedom of speech and expression that forms the core of any liberal, plural and democratic ethos.

The Supreme Court in Re: Kushboo’s matter (2010) 5 SCC 600 held, “The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective right of the citizenry. While an informed citizenry is a precondition for meaningful governance in the political sense we must also promote a culture of open dialogue when it comes to societal attitudes”.

Though this observation was made in an entirely different context, the import is indeed prophetic. It should become the trigger to reflect on the attitude that we have as a society towards the institutions of national security, be it the armed forces or intelligence structures. For over six decades now these organisations have been treated as sacrosanct and insulated from public scrutiny. An ethos has been perpetuated that seeks to view with scepticism any attempt to transparently examine issues and problems that make the rounds in Chinese whispers in the rarefied echelons of power.

While it should not be argued that confidentiality and discretion are not intrinsic to the defence of the realm, the furore over the leak of a recent letter purportedly written by the army chief to the prime minister was, with due respect, a bit of a stretch. Similarly, there was a front page story by The Indian Express with regard to troop movements. While everyone has the right to disagree with the contents of a story, what we need to determine is whether, in a democratic nation, a newspaper does not have the right to make an editorial judgement as to what should and should not be disseminated in the public domain. Anybody who is aggrieved by the content has recourse to legal remedies, which brings to the fore the need to tighten libel laws in the country.

The rash of recent controversies with regard to alleged shortages of equipment, material and personnel in the armed forces are partly due to the fact that substantive issues of defence preparedness have never ever been seriously discussed by Parliament during times of peace. Even after five decades, the Henderson Brooks report on the Sino-Indian border war has not been put in the public domain. Even after a decade, there is a lack of clarity about the implementation of the recommendations of the Kargil Review Committee. One can only hope that the Naresh Chandra Committee report would be placed on the table of the House, so that the issues that it flags can at least be discussed in a transparent manner.

India has a professional defence force that is paid for by the taxpayers. If there are problems or portents that could manifest even in future because of a perceived strain in civil-military relations, they are better out in the open rather than being consigned to the closet.

Institutionally, Parliament must rethink its reluctance to engage with doctrinal strategic and military issues. The constitutional courts also need to assess and weigh the pros and cons as to whether sustained and comprehensive journalistic engagement with issues of national security would perhaps be a more enlightened method to discern areas of concern and address them holistically.

The writer is a lawyer and an MP. Views are personal

SOURCE; INDIAN EXPRESS


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An American lesson in Court reporting by A. G. Noorani

From Hindu

For three days in the last week of March, the United States Supreme Court heard arguments on the Affordable Care Act. No Federal law in the U.S. in recent memory has aroused such bitter controversy. If it is struck down as unconstitutional, President Barack Obama’s prestige will suffer. He is due for re-election in November. Very many think the court will rule against him in June.

The core of the law is its “mandate” requiring most Americans to buy health insurance. It is central to mending the broken health care system which leaves 50 million people uninsured and accounts for 17.6 per cent of the national economy. The burden of health care of the uninsured is passed on to the state, i.e., the taxpayer.

Highly politicised

The court is highly politicised as its ruling on the “election” of George W. Bush in 2000 proved. Four conservatives, Chief Justice John Roberts Jr., Antonin Scalia, Samuel Alito Jr., and Clarence Thomas, will not even buy a car that can turn left. A Reagan appointee, Justice Anthony M. Kennedy, tips the balance when these four differ with the liberal four.

Court proceedings in the matter were fully reported. Americans would not have put up with the absurd edict of Justice J.S. Verma that individual judges were not to be identified. Remarks during the hearing, he had said, were to be attributed to “the bench” as if they spoke spontaneously in unison. Nor was that all. The American press felt free to comment on the trend and criticise the judges even while the case was being heard. Today, it continues to speculate on the outcome while the judgments are under preparation.

The New York Times took the lead. An editorial, reproduced in its foreign edition, the International Herald Tribune (29 March), remarked that the conservative judges’ questions suggest that “they have adopted the language and approach of the insurance mandate’s challenges”. The newspaper criticised Justice Scalia for asking Solicitor-General Donald Verilli Jr. whether a law can compel people to buy broccoli. “Failure to buy broccoli does not push that cost to others in the system”. Neglect of health insurance passes the burden to the taxpayers.

In an article entitled “Broccoli and bad faith” (31 March) the Nobel Laureate, Paul Krugman, really went after the judge. “Given the stakes, one might have expected all the court’s members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as anti-reform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.”

He concluded: “We don’t know how this will go. But it’s hard not to feel a sense of foreboding — and to worry that the nation’s already badly damaged faith in the Supreme Court’s ability to stand above politics is about to take another severe hit.”

Professor Krugman’s column challenged both the judges’ competence and integrity.

He was not hauled up for charging the mortals with bias and, worse, bad faith. The Times‘ editorial “The Roberts Court” had a sub-heading “Will the U.S. Supreme Court’s ruling in the health care case expunge judicial restraint from legal conservatism?” It answered: “Republican administrations, spurred by conservative interests groups since the 1980s, handpicked each of the conservative justices to reshape or strike down law that fails to reflect conservative political ideology.”

Justice Scalia shamelessly descended into the political arena of a Senate vote count. “You can’t repeal the rest of the Act because you’re not going to get 60 votes in the Senate to repeal the rest.” Justice Stephen Breyer said firmly: “I would stay out of politics. That’s for Congress, not us.” The NYT concluded, “A split court striking down the Act will be declaring itself virtually unfettered by the law. And if that happens along party lines, with five Republican-appointed justices supporting the challenge led by 26 Republican governors, the Court will mark itself as driven by politics.”

Trust Maureen Dowd to give the judges their just deserts. She wrote: “Justice John Roberts Jr.’s benign beige façade is deceiving; he’s a crimson partisan, simply more cloaked than the ideologically rigid and often venomous (sic.) Scalia. Justice Scalia voted to bypass democracy and crown W [i.e. George W. Bush] President, so he expressed ennui at the idea that, even if parts of the health care law are struck down, some provisions could be saved: ‘You really want us to go through these 2,700 pages?’ he asked, adding: ‘Is this not totally unrealistic?’

“Inexplicably mute 20 years after he lied his way onto the court, Clarence Thomas didn’t ask a single question during oral arguments for one of the biggest cases in the court’s history.”

Calling Justice Alito “insufferable”, Ms Dowd remarked, “The majority’s political motives are as naked as a strip-search”. She has not been hauled up for contempt of Court, either. Nor was Paul Begala for his article in Newsweek of 9 April entitled “Supreme Arrogance: Five Justices put our lives on the line”.

He wrote: “My fellow Americans, your health care is now in the hands of the right-wing majority of the Supreme Court. These are the folks who disgraced themselves in Bush v. Gore and who auctioned off democracy in the Citizens United decision (on election finance). You thought it was bad when Congress and insurance companies were making health-care policy? Wait till you see what five Republican lawyers can do.

“The oral arguments in the Affordable Care Act give us very little reason to have faith in the wisdom of the court. Some of the justices came off as smug, arrogant and frighteningly detached from the realities of everyday life in America.”

No judge in the U.S. or the U.K. would dream of framing guidelines for the press to obey. If any did, the press would simply disobey. There is a formidable case law on bringing to book anyone whose comments prejudice the fairness of a criminal trial. The wheel need not be reinvented.

For the rest, the ruling of the U.S. Supreme Court in 1974 in Miami Herald Publishing Co. vs Tornillo (418 U.S. 241) is very apt. It did not concern fairness of comment but a law imposing the basic duty to publish a reply to criticism. Speaking for a unanimous Court, Chief Justice Warner Burger ruled, “A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”

‘Not a public utility’

Justice Byron White remarked, “A newspaper or magazine is not a public utility subject to ‘reasonable’ governmental regulation in matters affecting the exercise of journalistic judgment… Of course, the press is not always accurate, or even responsible, and may not present full and fair debate on important public issues. …government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor”. Even conduct of “free and fair elections” does not justify curbs. None can “dictate to the press the contents of its news columns or the slant of its editorials” — whether by Congressional laws or judicial “guidelines”. If men elected by the people to make laws cannot legislate press responsibility, still less can unelected judges who have no right to legislate.

(A.G. Noorani is an advocate, Supreme Court of India, and a leading constitutional expert. His latest book, Article 370: A Constitutional History of Jammu and Kashmir, was published by Oxford University Press in 2011.)

http://www.thehindu.com/opinion/lead/article3350192.ece

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Supreme Court Guideline on disbanding Fast track Courts [Brij Mohan Lal Vs. Union of India & Ors dt 19.4.2012].

1. Being a policy decision which has already taken effect, we decline to strike down the policy decision of the Union of India vide letter dated 14th September, 2010 not to finance the FTC Scheme beyond 31st March, 2011. 

2. All the States which have taken a policy decision to continue the FTC Scheme beyond 31st March 2011 shall adhere to the respective dates as announced, for example in the cases of States of Orissa (March 2013), Haryana (March 2016), Andhra Pradesh (March 2012) and Rajasthan (February 2013). 

3. The States which are in the process of taking a policy decision on whether or not to continue the FTC Scheme as a permanent feature of administration of justice in the respective States are free to take such a decision. 

4. It is directed that all the States, henceforth, shall not take a decision to continue the FTC Scheme on ad hoc and temporary basis. The States are at liberty to decide but only with regard either to bring the FTC Scheme to an end or to continue the same as a permanent feature in the State. 

5. The Union of India and the State Governments shall reallocate and utilize the funds apportioned by the Thirteenth Finance Commission and/or make provisions for such additional funds to ensure regularization of the FTC judges in the manner indicated and/or for creation of additional courts as directed in this judgment. 

6. All the decisions taken and recommendations made at the Chief Justices and Chief Ministers Conference shall be placed before the Cabinet of the Centre or the State, as the case may be, which alone shall have the authority to finally accept, modify or decline, implementation of such decisions and, that too, upon objective consideration and for valid reasons. Let the Minutes of the Conference of 2009, at least now, be placed before the Cabinet within three months from the date of pronouncement of this judgment for its information and appropriate action. 

7. No decision, recommendation or proposal made by the Chief Justices and Chief Ministers Conference shall be rejected or declined or varied at any bureaucratic level, in the hierarchy of the Governments, whether in the State or the Centre. 

8. We hereby direct that it shall be for the Central Government to provide funds for carrying out the directions contained in this judgment and, if necessary, by re-allocation of funds already allocated under the 13th Finance Commission for Judiciary. We further direct that for creation of additional 10 per cent posts of the existing cadre, the burden shall be equally shared by the Centre and the State Governments and funds be provided without any undue delay so that the courts can be established as per the schedule directed in this judgment. 

9. All the persons who have been appointed by way of direct recruitment from the Bar as Judges to preside over the FTCs under the FTC Scheme shall be entitled to be appointed to the regular cadre of the Higher Judicial Services of the respective State only in the following manner : 

(a) The direct recruits to the FTCs who opt for regularization shall take a written examination to be conducted by the High Courts of the respective States for determining their suitability for absorption in the regular cadre of Additional District Judges. 

(b) Thereafter, they shall be subjected to an interview by a Selection Committee consisting of the Chief Justice and four senior-most Judges of that High Court. 

(c) There shall be 150 marks for the written examination and 100 marks for the interview. The qualifying marks shall be 40 per cent aggregate for general candidates and 35 per cent for SC/ST/OBC candidates. The examination and interview shall be held in accordance with the relevant Rules enacted by the States for direct appointment to Higher Judicial Services. 

(d) Each of the appointees shall be entitled to one mark per year of service in the FTCs, which shall form part of the interview marks. 

(e) Needless to point out that this examination and interview should be conducted by the respective High Courts keeping in mind that all these applicants have put in a number of years as FTC Judges and have served the country by administering Justice in accordance with law. The written examination and interview module, should, thus, be framed keeping in mind the peculiar facts and circumstances of these cases. 

(f) The candidates who qualify the written examination and obtain consolidated percentage as afore-indicated shall be appointed to the post of Additional District Judge in the regular cadre of the State. 

(g) If, for any reason, vacancies are not available in the regular cadre, we hereby direct the State Goverments to create such additional vacancies as may be necessary keeping in view the number of candidates selected. 

(h) All sitting and/or former FTC Judges who were directly appointed from the Bar and are desirous of taking the examination and interview for regular appointment shall be given age relaxation. No application shall be rejected on the ground of age of the applicant being in excess of the prescribed age. 

10. The members of the Bar who have directly been appointed but whose services were either dispensed with or terminated on the ground of doubtful integrity, unsatisfactory work or against whom, on any other ground, disciplinary action had been taken, shall not be eligible to the benefits stated in clause 5 of the judgment. 

11. Keeping in view the need of the hour and the Constitutional mandate to provide fair and expeditious trial to all litigants and the citizens of the country, we direct the respective States and the Central Government to create 10 per cent of the total regular cadre of the State as additional posts within three months from today and take up the process for filling such additional vacancies as per the Higher Judicial Service and Judicial Services Rules of that State, immediately thereafter. 

12. These directions, of course, are in addition to and not in derogation of the recommendations that may be made by the Law Commission of India and any other order which may be passed by the Courts of competent jurisdiction, in other such matters. 

13. The candidates from any State, who were promoted as FTC Judges from the post of Civil Judge, Senior Division having requisite experience in service, shall be entitled to be absorbed 146 and remain promoted to the Higher Judicial Services of that State subject to : 

(a) Such promotion, when effected against the 25 per cent quota for out-of-turn promotion on merit, in accordance with the judgment of this Court in the case of All India Judges’ Association (2002) (supra), by taking and being selected through the requisite examination, as contemplated for out-of-turn promotion. 

(b) If the appointee has the requisite seniority and is entitled to promotion against 25 per cent quota for promotion by seniority-cum-merit, he shall be promoted on his own turn to the Higher Judicial Services without any written examination. 

(c) While considering candidates either under category (a) or (b) above, due weightage shall be given to the fact that they have already put in a number of years in service in the Higher Judicial Services and, of course, with reference to their performance.  

(d) All other appointees in this category, in the event of discontinuation of the FTC Scheme, would revert to their respective posts in the appropriate cadre.

Read the full text ……………http://answeringlaw.com/php/displayContent.php?linkId=1532

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Presidential references: The how, why & what next? by Payaswini Upadhyay

From MONEY CONTROL.COM

The 2G case is full of twists and turns - this week barely had the government moved a presidential reference that the Supreme Court – Justice Singhvi’s Bench – admitted the government’s review petition in the matter as well. So now we’ve got a review & a reference- wow that’s unprecedented! But before we get to the confusion caused by these parallel processes we want to focus on how a presidential reference works.

The President of India has asked the Supreme Court 8 questions of fact and law arising from the 2G judgment. Will the apex court answer these questions? On what grounds can it choose not to do so?  Has it refused in the past? If it does agree to offer advice will that advice be binding on the government? If not binding, then what value does the Supreme Court’s advice have? Payaswini Upadhyay looks for answers on the how, why and what next of presidential references.

Telecom Minister Kapil Sibal to CNBC TV18 on 10th April 2012
“Cabinet has approved the question on which reference is to be sought through the President”

That under Article 143(1) of the Constitution that gives the President power to consult the Supreme Court.

It says ‘if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

KTS Tulsi
Senior Counsel, SC
“The key word in Article 143 is when the President considers is expedient. And expediency means how important it is for future policy, for the growth of the country. So if the President thinks that these are important issues which are expedient to be referred to the SC to give its advisory opinion, then it does. These powers are vested in highest authorities in the country and so they don not have to be hedged in under what circumstances they will be used.”

Mukul Rohatgi
Senior Counsel, SC
Counsel for Essar in 2G Case
“A dispute arising with a State on one hand and Centre on the other hand, disputes of similar nature relating to environment, life and liberty – some important issues which may arise- the government can seek an advice from the SC.”

Such a case of public importance came up as far back as in 1964 in Keshav Singh’s case where a presidential reference was sought when the UP legislature attempted to jail 2 Allahabad High Court judges for intervening in Parliamentary procedure. In answering the questions raised in this Presidential Reference, the SC laid down that ‘state legislatures in India could not… claim to be the sole judges of their powers and privileges to the exclusion of the courts.’

But it’s not always that the apex court has entertained a presidential reference. In the Faruqui case, better known as the Ram Janmabhoomi dispute, a five-judge Bench of the Supreme Court held that the Presidential Reference was ‘superfluous and unnecessary… and that the Presidential Reference cannot be treated as an effective alternate dispute-resolution mechanism in substitution of the pending suits’.

Mukul Rohatgi
Senior Counsel, SC
Counsel for Essar in 2G Case
“Suppose a reference is made whether Lord Ram was born in Ayodhya- now it is a part of mythology- SC can refuse to answer the reference by saying that it is not possible to really find these facts by which such an answer can be given and therefore reference can be sent back unanswered.”

But if the SC answers the questions raised in a presidential reference, would its advice be binding – that question came up in 1978 when a presidential reference was sought to ascertain the constitutionality of the Special Courts Bill. A 7 judge bench of the SC laid down that ‘though it is always open to this Court to re-examine the question already decided by it and to over-rule, if necessary the view earlier taken by it insofar as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under Article 143(1) of the Constitution’.

But when the same question came up in the Cauvery Waters inter-state river water dispute of 1991- a 5 judge bench left this question open by saying ‘No opinion is expressed on the question whether the opinion given by this Court on a Presidential Reference under Article 143 of the Constitution, such as the present one, is binding on all courts…. but at the same time, the apex court also held that ‘the advisory opinion is entitled to due weight and respect and normally, it will be followed.’

KTS Tulsi
Senior Counsel, SC
‘In advisory jurisdiction, it’s the opinion which the Court expresses. Nevertheless, it is entitled to due weight and highest amount of respect by all courts and the Executive as well as the Legislature. The whole purpose of advisory jurisdiction is to be able to avoid problems rather than being confronted with problem and then the Court being brought in to adjudicate the issue. So this preventive power which has been vested in the President and the jurisdiction which has been vested in the SC is to avoid problems in the future which are clearly foreseeable. So the court will normally give it highest priority but i don’t think it is binding.’

Soli Sorabjee
Senior Counsel, SC
Former Attorney General
“5 judges of the SC solemnly sit and answer questions and that opinion is what – only for academic discussion? It is to be framed? Of course; in a way it is binding. By convention now it is binding and it is regarded as binding. It is joke if we’re saying it’s for putting in textbooks. To my mind, in effect, today it will be a binding judgment.”

Mukul Rohatgi
Senior Counsel, SC
Counsel for Essar in 2G Case
“The Constitution says that this is advisory jurisdiction. By its very nature, an advice is something which is proffered to a person who seeks it. It is not a decision between two warring groups and a Court is expected to rule thereupon in which case it is binding and the last Court is the SC. So the Constitution says that any decision or law declared by the SC shall be binding on all Courts and all authorities including the government. But as you know, this is not a dispute between two parties; its an advise. So if you go by simple, layman terms, an advice can’t be binding on someone who has neither sought it nor got it. As far as Courts are concerned, it will certainly carry great weight. But in my submission, Cauvery is the right view.”

Binding nature aside, the presidential reference approved this week by the Cabinet has sought answers to 8 questions arising from the 2G judgment �” from the legality of telecom licenses not granted through auction to auction process design and whether they are mandatory for the allocation of all natural resources

Soli Sorabjee
Senior Counsel, SC
Former Attorney General
“What you have to remember is that Presidential Reference cannot be sought to make the Supreme Court exercise its appellate jurisdiction over its own judgment or a judgment of its Bench. Whole question here is that the government is dissatisfied with the Division Bench judgment. Alright; it has filed a review. Let’s see what happens in the review. But whatever happens, it is impermissible to use a Reference route and in effect make the Reference Bench an appellate Bench over the judgment of the Division Bench which has cancelled licenses and made other observations.”

KTS Tulsi
Senior Counsel, SC
“I think Presidential Reference is warranted in this case because a momentous issue of the facts- manner is which the policy is adopted, manner in which the policy is implemented, arise in this case and they will arise in hundreds of cases in the future and the government would like to know whether auction is the only route that is available and all other options are closed, government will also what happens to the licenses that were granted before 2008 on a similar policy if this policy is flawed, the physical impossibility of being able to implement the auction route within the time which is permitted- the whole purpose is to have a clear understanding what are there limitations.”

Mukul Rohatgi
Senior Counsel, SC
Counsel for Essar in 2G Case
“I don’t think a reference is warranted at all. The government- if it is dissatisfied with the verdict of the SC- has the right through Parliament to pass a law by which it can annul the judgment of the SC by what is called ‘removing the basis of the judgment’. So it can pass a law to say, notwithstanding any order/decree of any Court, any auction which may have been done in the field in which the government decides that there shall be auction or no auction shall be valid. Everyday validating laws are passed.”

Most senior counsels and several former judges I spoke to told me that in their living memory, it’s the first time a presidential reference is being sought on a SC judgment. Now may be the government is doing it because it genuinely needs clarity for policy matters or it could well be a case of getting the Supreme Court to take a call on the fate of existing and future licenses… soon a yes or a no from the apex court will tell us if the government becomes successful in passing the buck.

In Mumbai, Payaswini Upadhyay

SOURCE: http://www.moneycontrol.com/news/management/presidential-references-the-hownext_692934.html

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Many more Chishtys By: Iqbal Haider

From Indian Express

India, Pakistan must address human rights issues relating to prisoners

Shoa Jawaid, the daughter of Khalil Chishty, had forwarded to me a copy of the representation addressed to President Asif Ali Zardari with a request on the telephone to ensure it is received by the president. Luckily, I succeeded in contacting two of Zardari’s close aides, who passed it on to him. Zardari appreciated the merits of this case and, during his very short visit to India, suggested to Prime Minister Manmohan Singh to consider the release of Chishty on humanitarian grounds. In a stroke of luck, the Supreme Court of India, in a positive gesture, ordered the release of Chishty.

The governments of India and Pakistan must address human rights issues relating to each other’s prisoners, jailed in the other country. It is pertinent to remind the governments of their own decision to constitute the Joint Judicial Commission in 2007, comprising four retired judges of the superior courts of each country, which was expected to resolve expeditiously all problems pertaining to prisoners. Unfortunately, this has been undermined by either not allowing the commission to meet frequently or by not implementing the commission’s recommendations. Unanimous recommendations for the release and welfare of prisoners of the two countries still await implementation. If India and Pakistan abide by the recommendations of this commission, almost all problems of the prisoners will be resolved and they will be saved from unnecessary agony.

India and Pakistan had also entered into an Agreement of Counselor Access in 2008 to expedite the process of nationality verification of prisoners, which is necessary for repatriation. This process is not followed expeditiously and avoidable delay is caused in the release and repatriation of prisoners. This issue was considered by the Indian Supreme Court. Justices Markandey Katju and R.M. Lodha, in an order dated March 8, 2010, directed the concerned ministry to determine the nationality of foreign prisoners as soon as possible and if they had completed their sentence and their nationality had been verified, to have them deported forthwith to their country. After a similar petition was filed by me in the Supreme Court of Pakistan on behalf of the Pakistan Fisher Folk Forum, an identical directive was issued by the court. This resulted in the immediate release of the largest number of Indian prisoners (about 442 from Karachi) in one go in August 2010. On April 12 this year, 26 more Indian fishermen were released from Karachi. Although there are hiccups, it is heartening that the release of prisoners continues.

Soon after the release and repatriation of the prisoners in 2010, a delegation of peace and human rights activists from India and Pakistan, of which I was a part, was received by Sonia Gandhi over tea in New Delhi. She appreciated our efforts and thanked us for securing the release of such a large number of prisoners. She immediately informed the home and external affairs ministries and necessary notification was issued the very next day for the release of Pakistani prisoners who had completed their sentences and whose nationality had been verified. Such reciprocal gestures on the part of the judiciary and leadership of the two countries accelerated not only the release of prisoners but also the peace process. In the following year, we witnessed the exchange of the largest number of official delegations between the two countries. The exchange continued with the visit of President Zardari to India last week and the promise by PM Singh to visit Pakistan very soon.

Other than Chishty’s, there is a high-profile case before us: Sarabjit Singh, awaiting execution in Kot Lakhpat Jail, Lahore. For about two decades, the case has received wide publicity and the indulgence of the political leadership of the two countries. Voices have been pleading for Sarabjit’s pardon on humanitarian grounds or at least for commuting his death sentence into life imprisonment. Unfortunately, the stigma of espionage and his alleged involvement in terrorist activity is not easy to remove. Sarabjit pleads his terror charge is on account of mistaken identity. On his family’s appeal, the former prime minister, Nawaz Sharif, asked the authorities in Pakistan to convert his punishment on humanitarian grounds. I oppose the death sentence and, hence, support Sharif in this regard. I request the highest authorities in Pakistan to examine Sarabjit’s case with an open mind and to consider the quality of admissible evidence, if any, against him.

Another commendable order came from the Supreme Court of India, urging the Indian government to forthwith repatriate mentally unsound Pakistani prisoners. Justice Lodha, while passing this order, was moved by the pitiable condition of 21 prisoners, 16 of whom are mentally unsound and five deaf or mute, but who have to suffer jail even though they have served their sentences.

I admire the effective support the apex courts of both the countries have offered to the human rights of the prisoners. But we have many more Chishtys in India and Pakistan.

The writer is a former Pakistan minister for human rights and law and justice

SOURCE: INDIAN EXPRESS

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