Bhim Singh v. Union Of India And Others, Supreme Court Of India, Judgment, Law, casemine.com

Factual and Procedural Background

The present order follows the Supreme Court’s earlier direction dated 24-1-2012 (2012) 13 SCC 469 concerning the treatment of Pakistani prisoners and fishermen in India. In response to that order, Shri Payingattery Venkiteswaran Sivaraman, Director (Foreigners) in the Ministry of Home Affairs, filed an additional affidavit outlining steps taken by the Union of India. The affidavit records that:

The Ministry of Home Affairs circulated the Court’s 24-1-2012 order to all State Governments and Union Territory Administrations on 1-2-2012, instructing that Pakistani prisoners and fishermen be given consular access within three months of arrest.

The consular access programme has been revised to occur quarterly (February, May, August and November) to ensure compliance with the 2008 Agreement on Consular Access.

There are 37 Pakistani prisoners who have completed their sentences, 21 of whom are mentally challenged, and 11 Pakistani fishermen against whom no offence has been registered; all remain in custody because their nationality has not yet been confirmed by the Pakistan High Commission.

The present order addresses ambiguities in the Union’s policy guidelines and issues directions regarding the continued custody, treatment and repatriation of these individuals.

Legal Issues Presented

Whether paragraphs 2(1) and 2(5) of the Union Government’s policy guidelines on consular access and repatriation conform to the 2008 Agreement on Consular Access and require clarification or modification.

Whether the continued imprisonment of 37 Pakistani nationals who have already completed their sentences is legally permissible, and what interim measures should govern their custody pending confirmation of nationality and repatriation.

Court's Reasoning and Analysis

The Court undertook the following analysis:

Ambiguity in Policy Guidelines: The Court noted inconsistencies between paragraph 2(1) (notification of arrest) and paragraph 2(5) (timing of consular access) of the policy guidelines when compared with the 2008 Agreement on Consular Access. It directed that the guidelines be clarified so that notification to the Pakistan High Commission occurs immediately upon the Union’s receipt of arrest details, and that consular access be provided within three months, rather than six months before completion of sentence.

Status of 37 Prisoners Who Completed Sentence: The Court held that once sentences are served, these individuals cannot be treated as prisoners. Detention in jail violates their basic human rights and dignity. Nevertheless, until nationality is confirmed they cannot be repatriated, so they must be formally released from prison and accommodated in appropriate detention centres with restricted movement.

Conditions of Detention Centres: Any such centre—whether called a detention centre or otherwise—must provide basic facilities of electricity, water, hygiene and, for the 21 mentally challenged detainees, proper medical treatment in suitable government or NGO-run hospitals.

Availability of Facilities: The Additional Solicitor General informed the Court that detention centres are available at Sewa Sadan (Lampur) and Mahila Sadan (Jail Road) in Delhi and one centre in Amritsar, all with adequate lodging and boarding facilities. The Court accepted this statement.

Nationality Confirmation: The Court directed the Union of India to take all necessary steps to expedite confirmation of nationality with the Pakistan High Commission, expressing confidence that the High Commission would cooperate swiftly.

11 Pakistani Fishermen: Because no offence is registered against them, the State of Gujarat must house these fishermen in an appropriate facility with basic amenities until nationality confirmation and repatriation are completed.

Holding and Implications

Order: The Court directed the immediate formal release of 37 Pakistani nationals from prison and their transfer to suitable detention centres with humane living conditions; mandated medical care for the 21 mentally challenged detainees; required Gujarat to house 11 Pakistani fishermen in appropriate facilities; and instructed the Union Government to clarify its policy guidelines and expedite nationality confirmation, with a compliance report due before the next hearing on 10-4-2012.

Implications: The order reinforces the obligation of Indian authorities to honour the 2008 Agreement on Consular Access, clarifies procedural duties regarding notification and consular access, and affirms that foreign nationals who have completed their sentences cannot be kept in jail solely due to pending nationality verification. The directions are interim in nature and do not establish new substantive precedent beyond enforcing existing human-rights norms and treaty obligations.

Bhim Singh v. Union Of India And Others

Order

1. In pursuance of our order dated 24-1-2012 (2012) 13 SCC 469, an additional affidavit has been filed by Shri Payingattery Venkiteswaran Sivaraman, Director (Foreigners) in the Ministry of Home Affairs, Government of India, on behalf of Respondent 1. It is stated that the order of this Court dated 24-1-2012 (2012) 13 SCC 469 has been brought to notice of all the State Governments/Union Territory Administrations vide Ministry of Home Affairs Letter dated 1-2-2012. The State Governments/Union Territory Administrations have been advised to ensure that all Pakistani prisoners and Pakistani fishermen under arrest, detention or imprisonment are provided consular access within three months of arrest.

2. In modification of the earlier policy, it is stated that consular access programme is now being arranged every quarter i.e February, May, August and November every year with a view to ensure that all Pakistani prisoners and Pakistani fishermen are provided consular access within three months of their arrest in terms of the provisions in the Agreement on Consular Access.

3. We find that there is some ambiguity in Para 2(1) and Para 2(5) of the policy guidelines for repatriation of Pakistani prisoners who have completed their sentence. Para 2(1) states that immediately on arrest of the Pakistani national, the State Government/Union Territory Administration concerned shall send the details of the Pakistani nationals arrested within 24 hours to (a) Ministry of Home Affairs (Foreigners Division), (b) Ministry of External Affairs (Consular Division), and (c) Intelligence Bureau. The Agreement on Consular Access (2008) makes a provision that immediate notification of any arrest, detention or imprisonment of any person of the other country shall be provided to the respective High Commission. In the policy guidelines, it needs to be clarified that as soon as the State Government/Union Territory Administration sends the details of the Pakistani nationals arrested to the above Ministries and the agencies and such details are received by the Government of India, a notification of arrest, detention or imprisonment of a Pakistani national shall be provided to the Pakistan High Commission.

4. In Para 2(5) of the policy, it is stated that States/Union Territory Administrations concerned shall ensure that a Pakistani prisoner/Pakistani fisherman is provided consular access immediately after the arrest of the Pakistani national but in no case at least six months before completion of the sentence awarded to him/her. This is again not in conformity with the modified policy noted above. We are now informed by Mr P.P Malhotra, learned Additional Solicitor General, that necessary modification has been made in Para 2(5) of the policy. In this regard, he referred to the Letter dated 1-2-2012 sent by the Ministry of Home Affairs (Foreigners Division) to Principal Secretary (Home) of all State Governments/Union Territory Administrations and DGPs of all State Governments/Union Territory Administrations.

5. In Para 11 of the additional affidavit filed Shri Payingattery Venkiteswaran Sivaraman, it is stated that there are 37 Pakistani prisoners who have completed their sentence but they could not be repatriated as their nationality has not been confirmed by the Pakistan High Commission so far. It is also stated that besides, in respect of 11 Pakistani fishermen, Government of Gujarat has informed that no offence has been registered and they have no objection to their repatriation to Pakistan. However, in respect of these 11 Pakistani fishermen also, nationality has yet not been confirmed by the Pakistan High Commission. The list of these 37 Pakistani prisoners and 11 Pakistani fishermen is placed on record as Annexure G. Of the 37 Pakistani prisoners who have completed their sentence, 21 are stated to be mentally challenged. Most of these 21 persons have completed their sentence in 2007, 2008 and 2009, but their nationality has not been confirmed by the Pakistan High Commission though it appears that the consular access with regard to them was provided a few months before the completion of their sentence. It is indeed unfortunate that these 37 Pakistani prisoners who have served out their sentence and are not required under the Indian laws have been kept in jail because their nationality has not been confirmed. Whatever may be the reason for delay in confirmation of their nationality, we have not even slightest doubt that their continued imprisonment is uncalled for. In no way, can these 37 Pakistani prisoners be treated as prisoners once they have served out their sentence. It is true that unless their nationality is confirmed, they cannot be repatriated and have to be kept in India but until then, they cannot be confined to prison and deprived of basic human rights and human dignity.

6. It is stated in the additional affidavit of Shri Payingattery Venkiteswaran Sivaraman that in respect of these 37 prisoners that the Ministry of Home Affairs has advised the State Governments/Union Territory Administrations concerned to set up detention centres for restricting their movements. A Communication dated 15-2-2012/16-2-2012 has been sent by the Ministry of Home Affairs advising the State Governments/Union Territory Administrations concerned to release such foreign nationals from jails and to restrict their movements in detention centres in terms of the powers delegated under Section 3(2)(e) of the Foreigners Act, 1946 and under Para 11 of the Foreigners Order, 1948 pending their deportation/repatriation. However, in the case of Jammu and Kashmir, it has been advised that the existing procedure i.e detention under Section 8 of the Public Safety Act may continue. We are presently not concerned with the validity and legality of the detention of these prisoners under the above-referred provisions. However, suffice it to say that these 37 persons have to be formally released from jail immediately and be kept at appropriate place with restricted movements pending their deportation/repatriation. The places where they are to be kept—detention centres or by whatever name such places are called—must have basic facilities of electricity, water and hygiene. Twenty-one persons out of these 37 persons who are mentally challenged, on release, have to be given proper medical help/assistance or treatment in suitable government hospitals or the hospitals/clinics run by NGOs.

7. Mr P.P Malhotra, learned Additional Solicitor General, on instructions, stated that in Delhi there are two detention centres, namely, (1) Sewa Sadan, Lampur, and (2) Mahila Sadan, Jail Road (for females), and one in Amritsar and these centres have proper facilities for lodging and boarding. He submitted that according to the availability of accommodation at the Detention Centres, Delhi and Amritsar such of the 37 persons would be accommodated. We accept the statement of the learned Additional Solicitor General.

8. As regards the confirmation of the nationality of these 37 persons by the Pakistan High Commission, we observe that the Government of India through the Ministry concerned shall take all necessary steps in ensuring that the exercise is completed expeditiously. We have no doubt that the Pakistan High Commission will also act swiftly and complete this exercise as early as may be possible.

9. With regard to 11 Pakistani fishermen against whom no offence has been registered by the State of Gujarat, until exercise of confirmation of their nationality is complete, it is directed that they shall be kept at an appropriate place having all basic facilities by the State of Gujarat.

10. The petitioners are at liberty to file additional affidavit in response to the additional affidavit filed by Shri Payingattery Venkiteswaran Sivaraman, Director (Foreigners) on 24-2-2012 which we have referred to above.

11. Respondent 1 shall file compliance report and further affidavit in support thereof before next date.

12. Let these writ petitions come up for further consideration on 10-4-2012.

Court Masters

(Record of Proceedings),Writ Petitions (Crl.) No. 310 of 2005 with No. 82 of 2010, decided on February 28, 2012

Bhim Singh v. Union Of India And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications