SC agrees to hear Army wife's plea to repatriate POWs from Pakistan

The Supreme Court on Wednesday agreed to hear a plea of the wife of an Indian Army officer seeking repatriation of her husband and other Army officers believed to be held under illegal detention as prisoners of war by Pakistan since the 1971 war.

A bench of justices DY Chandrachud and Surya Kant issued notice to the Centre on the plea of Jasbir Kaur, wife of Major Kanwaljit Singh who is said to be among the POWs, and sought its response in three weeks.

The plea sought a direction to the Centre to approach the International Court of Justice against Pakistan with appropriate judicial remedies, which are coercive and binding in nature for the release of all the Indian POWs held under the "torturous custody of Pakistan in violation of the Geneva Convention for Treatment of Prisoners of War".

The plea also sought a direction to the Centre to produce the court of inquiry proceedings, if held under the mandatory provisions of Army Rules, into the circumstances leading to the capture, torture and murder of Captain Saurabh Kalia by Pakistan during the Kargil war.

Advocate Namit Saxena, appearing for petitioner Jasbir Kaur, contended that very little has been done on the issue of the POWs over the past 50 years.

The plea sought a direction to the Centre for taking initiative aimed at setting up a domestic as well as an international mechanism for effectively enforcing the right to life under Article 21 of the Constitution, the universal declaration of human rights and the Geneva Convention for treatment of Prisoners of War.

”Petitioner herself is the wife of IC-14590 Major Kanwaljit Singh who has been evidenced and heard to be held under the illegal detention of the government of Pakistan,” the plea said.

It said that the PIL is necessitated by the circumstances as admittedly 54 PoWs are "evidenced and heard to be held under the torturous detention” of the Pakistan government since the 1971 war. 

The plea also urged the court to direct the Centre to procure from the International Red Cross, the list of POWs who were scheduled to be repatriated by Pakistan in years succeeding the 1971 war but ultimately "not repatriated as scheduled in the third train of POWs".

The PIL referred to four different cases which are pending before the top court including the one of martyr Saurabh Kalia who was murdered during the Kargil War along with five other soldiers.

It said not one out of the 54 PoWs has been released despite the existence of a "specific bilateral agreement in force between the respondent Union of India with the detaining power of Government of Pakistan”.

The plea said that the Government of Pakistan is also shielding the perpetrators of crimes against humanity committed upon Captain Saurabh Kalia and his men, besides many other PoWs/soldiers whose names could not specifically be listed herein. 

The petition said, ”In these matters respondent Union of India and specifically the Indian Army under them have not initiated any concrete steps for establishment of a mechanism for effective enforcement of provisions of Geneva Convention despite the lapse of more than 70 years, since the same first came into force”.

It said that the "utmost suffering and trauma are evident from the overwhelming admitted reality that 54 POWs, narrated in the Gujarat high court judgment dated December 23, 2011, who are worthy soldiers of this great nation, are living a miserable life for almost 50 years now".

The plea said that the respondents in their replies and counter-affidavits have so far resisted availing coercive and binding remedies through the International Court of Justice and other international human rights organisations, on the pretext that mutual release of POWs had been covered under the bilateral agreement inter alia Shimla Agreement on July 3, 1972.          

”While late Smt Indira Gandhi signed the said agreement and quite promptly fulfilled the obligation of repatriating 93,000 odd well-fed Pakistani POWs, yet she failed to have the same implemented for the Indian POWs torturously detained by Pakistan, thereby yielding all the possible power of bargain against an enemy well known for scanty regards for basic human rights,” it alleged.

It said that the respondents have not made any reference to date to the court of inquiries, etc, if at all they conducted any, despite such a huge number of POWs in the 1971 war as determined in the Gujarat high court judgment dated December 23, 2011.

The plea also sought a direction to the Centre to produce the court of inquiry proceedings held if any under the mandatory provisions of Army Rules into the circumstances under which the frugal patrol of Captain Saurabh Kalia was deployed at Bajrang Post in May 1999 during the Kargil war, was taken POW, tortured inhumanly and murdered in cold blood and finally bodies with injury marks returned by Pakistan.

”Alternatively directions be issued to said respondents to hold such inquiry and produce the report thereof before this court for further necessary actions,” it said, besides seeking other directions concerning PoWs.

Image used for representational purpose. Photograph: STR/AFP/Getty Images.