New Delhi: The Supreme Court on Tuesday directed the Centre to inform it about the current status of list of Indian Prisoners of War (POWs) languishing in Pakistani jails for 43 years and efforts made for their release.
The apex court asked the Ministry of External Affairs to file a fresh affidavit within six weeks indicating current status of the list prepared by government in 1985 admitting that 54 Indian defence personnel were held as POWs in Pakistan during the 1971 war.
A Bench headed by Chief Justice RM Lodha said "29 years is a long time" since the list of 54 POWs was prepared and it has to be determined what is their status as some of them may not be alive. It said in the fresh affidavit, the Centre will inform the court about the development undertaken by it since February 17, 2010 as there is no other material after that to indicate the steps taken on the matter.
"State has to take a responsive stand. It is the matter of its army and airforce personnel," the bench, also comprising justices Kurian Joseph and R F Nariman, said while adding that "government has different means to estimate how many of them are in Pakistani jails".
"It has different agencies. It has different sources that you can't even conceive. It does not persuade me to believe that 54 PoW are there after 43 years. Many of them may have died," the bench said after taking note of the submission that Pakistan has been claiming that there was not a single Indian POW in its jails.
The apex court, which noted the Centre's stand that it was not a matter to be referred to the International Court of Justice, said to deal with this critical, grave and sensitive aspect, a positive attitude was required and authorities
concerned should explore all possible ways to address the issue with Pakistan as the matter rerquires "very little court interference".
"How do you want to take forward the issue of POWs who are in the custody of the neigbouring nation for 40 years. 40 years is pretty long. How do you want to resolve the problem. Once you are relying on the clause that ICJ has no jurisdiction, how do you intend to tackle this huge problem," the bench asked senior advocate K Radhakrishnan who was appearing for the Centre.
"Why don't you make an attempt with Pakistan. First find out who is alive. How many are there. Some may have died. Why do you foresee that Pakistan will not agree on the issue? Why don't you give a try?
"It is a critical, grave and sensitive matter and all options must be explored and you may succeed also. Why should their be a negative thought and resistance on your part. If they don't agree, no problem. Sometime you succeed and sometime You fail. Life is like a roller coaster. The question is you are doubting and you are apprehensive that the other side will not accept," the bench observed.
It also referred to the case of Pakistan raising in ICJ the issue of downing of its aircraft in 1999 by Indian forces despite New Delhi's objection which was upheld by the international tribunal. The apex court was dealing with three petitions raising the issue of POWs, brutality meted out to Saurav Kalia during Kargil War and beheading and mutilation of bodies of two Indian soldiers in 2013 by Pakistani army for direction to Union government to move the International Court of Justice.
The focus of hearing was on the issue of POWs and government said it cannot refer these cases to the International Court of Justice as India is governed by a bilateral agreement with Pakistan based on the 1972 Simla agreement.
The bench said under such circumstances, the role of the court to intervene becomes minimal as question arises, "Is Shimla Agreement amenable to judicial review." The apex court said the issue can be taken up in the Pakistan Supreme Court as it was taken here by Prof Bhim Singh about the languishing of Pakistani prisoners in Indian jails.
On the issue of POWs, the apex court in 2012 had stayed a Gujarat High Court order directing the Union government to move the ICJ on Pakistan illegally detaining 54 Indian Army men in breach of an agreement between the two countries after the 1971 war to exchange all prisoners of war.
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