Madangopal Khushiram Paul vs Uoi & Anr.
2012 Latest Caselaw 4128 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 13th July, 2012

+                                  W.P.(C) No.7185/2009

       MADANGOPAL KHUSHIRAM PAUL            ..... Petitioner
                  Through: Mr. K.M. Paul, Adv.

                                       Versus
       UOI & ANR.                                            ..... Respondents
                            Through:      Mr. Jatan Singh, Adv. for UOI.

                                       AND

+                                  W.P.(C) No.862/2011

       MADANGOPAL KHUSHIRAM PAUL            ..... Petitioner
                  Through: Mr. K.M. Paul, Adv.

                                       Versus
       UOI & ANR.                                            ..... Respondents
                            Through:      Mr. Jatan Singh, Adv. for UOI.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The petitioner claims to be an advocate and human rights activists and

has filed these petitions in public interest. W.P.(C) No.7185/2009 was filed

pleading, i) that the petitioner had filed a complaint before the National

Human Rights Commission (NHRC) for release of 16 Indian citizens

languishing for long in Pakistani jails; ii) that the NHRC had passed an order

dated 23.06.2007 and sent the matter to the Secretary, Ministry of External

Affairs, Government of India; iii) that though the petitioner had made

several representations but the order of NHRC was not implemented; iv) that

in the meanwhile, three prisoners were released but the Government was not

giving their lawful dues and compensation, to them. The petition, thus

sought the relief of a direction to the Ministry of External Affairs to comply

with the order of the NHRC. Notice of this petition was issued. The

petitioner thereafter sought impleadment of the Ministry of Home Affairs as

well as the Chief Advisor, Prime Minister‟s Office, on the ground that they

were liable to pay compensation to the prisoners held in jails in Pakistan.

However, the learned Single Judge vide order dated 07.01.2010 dismissed

this application holding that "in the petition filed before the NHRC the only

issue was that the complaint should be transmitted to the concerned authority

for such action as deemed appropriate"; that the writ petition sought only

implementation of the order dated 23.06.2007 of NHRC and no prayer for

compensation was made in the writ petition; hence the application for

impleadment was misconceived. The petitioner preferred intra-court appeal

being LPA No.112/2010 against the said order but which was also dismissed

on 16.02.2010. Counter affidavit has been filed by the respondents to which

rejoinder has been filed by the petitioner. The petition was admitted for

hearing on 29.09.2010. A further status report has been filed on behalf of the

respondent.

2. During the pendency of the aforesaid petition, W.P.(C) No.862/2011

was filed pleading that the petitioner had got further information that in all

51 Indians were imprisoned in the jails in Pakistan; they are unable to

themselves access the Courts; that the petitioner had called upon the

respondents to give appropriate compensation to the said prisoners and their

family members but to no avail. Mandamus is sought, directing the

respondents to pay compensation, legitimate dues and other benefits to the

said prisoners in Pakistani jails and their family members. This petition was

clubbed along with the earlier petition aforesaid and status report and

affidavit have been filed by the respondents and to which a rejoinder has

been filed by the petitioner.

3. The counsels have been heard.

4. The NHRC, on 23.06.2007, on the complaint aforesaid of the

petitioner directed as under:

"The complaint be transmitted to the concerned authority for such

action as deemed appropriate."

5. The respondents in their counter affidavits have stated that they have

taken all possible actions seeking the release of Indian nationals from

Pakistani jails; that the matter has been taken up with the Government of

Pakistan at all levels; that the respondents thus cannot be said to have not

complied with the orders of the NHRC. It is yet further informed that an

Indo-Pakistan Judicial Committee on Prisoners has been formed and which

has visited jails in Pakistan and India and made recommendations to both the

governments; that the matter was also raised during the Foreign Secretary

Level Talks held on 25.02.2010 and 24.06.2010 as well as during the Home

Minister‟s visits to Islamabad on 25-26.06.2010 and during Foreign Minister

Level Talks on 15.07.2010 as also in the Foreign Secretary Level Talks in

February, 2011 and the Home / Interior Secretary Level Talks on 28-

29.03.2011. It is also stated that the said prisoners were Indian fishermen or

civilians and Consular Access to such prisoners has also been sought.

Assurance is given to take all further steps also in this regard. Else, it is

stated that the Indian nationals listed in the petitions and in Pakistani jails are

neither employees of the Ministry of External Affairs nor were they, in any

manner engaged by the Government, so as to make the Government liable to

pay to them any salary, compensation, allowance or benefits etc.- no such

direction has been issued by the NHRC also.

The respondents, though admit that the charge by the Pakistani

Authorities against some of these prisoners is of spying, has pleaded that it is

not within the power and jurisdiction of the Government of India to judge

the circumstances under which the Indian nationals have been detained and

accused of the charges against them under the laws of an alien country.

6. The petitioner during the hearing has been unable to state as to what

additional steps can be taken by the respondents. The argument has thus

been confined to issuance of a direction for payment of dues / compensation

to the said prisoners. Reliance in this regard is placed on:

       (i)     Angrej Kaur Vs. UOI (2005) 4 SCC 446;

       (ii)    Judgment dated 14.03.2011 of the Supreme Court in W.P.(Crl.)

               No.16/2008 titled Gopal Dass Vs. UOI;

(iii) Jagjitsingh Aurora Vs. UOI 2012 (1) G.L.H. 362; and

(iv) Order dated 24.07.2000 of this Court in W.P.(C) No.3099/2000

titled Sh. Rooplal Sharia Vs. UOI.

7. Angrej Kaur (supra) was a habeas corpus petition qua an „Indian

soldier‟ in a foreign jail. It was held that though direction to authorities

outside India could not be issued but direction was issued to the authorities

to continue making efforts for his release from Pakistani jail. In Gopal Dass

(supra) also direction sought was to take necessary steps for release and

repatriation of the detenu in Pakistani jail, arrested on mistakenly crossing

over the Indo-Pakistan Boarder. The Supreme Court though again holding

that no direction could be given to Pakistani authorities, nevertheless made a

request for release. In Rooplal Sharia (supra) consent order for payment of

compensation was issued. The reliefs sought from the Gujarat High Court in

Jagjitsingh Aurora (supra) also was for payment of emoluments to the

families of „Indian soldiers‟ in the custody of Pakistan as Prisoners of War.

It was further held that the writ Court cannot direct the Union of India (UOI)

to take any decision in a particular manner regarding any of its policy

towards the neighbouring country or as regards its War Policy. Finding,

however, the Indian Government to be entitled to seek release of such

persons under a bilateral agreement with the Pakistan Government, UOI was

directed to approach the International Court of Justice for non compliance if

any by Pakistan of the said bilateral agreement and direction was also issued

for payment of emoluments.

8. However, the respondents in the instant cases deny that any of the

persons for whose benefit the writ petitions have been filed, were soldiers or

otherwise employed by the Indian Government. If they were arrested and

imprisoned by Pakistani Authorities owing to having intentionally or

mistakenly crossed over the border, as appears to be the case of the

respondents and as also was the position in Gopal Dass (supra), the

Government of India cannot be directed to pay any compensation to them.

Compensation / emoluments were directed to be paid in the judgments supra

in the face of admission that the detenues in the Pakistani Jails were Indian

soldiers or on agreement.

9. The petitioner, save for averring that some of the said persons have

been charged by the Pakistan Authorities for spying, has no basis or material

to even plead that the said persons were working for the Indian Government.

However, that charge has not been leveled by the Government of India.

Merely because the prosecution agencies of Pakistan levelled such a charge

would not bind the respondents. The reliance on the judgments aforesaid is

thus misconceived. In all the cases where any relief has been granted, there

existed at least some material or admission to show the prisoners being

either a soldier or otherwise an employee of the Indian Government or its

agency. There is none in the present case. Rather neither the said persons

nor anybody else on their behalf nor the family members of any of them

appear to have taken any action. They, thus appear to be content in the

belief that there is no cause of action for claiming any compensation against

the respondents. We are unable to understand as to how in these petitions

filed by way of public interest litigation can such a direction be issued

especially when the particulars are completely lacking.

10. Moreover, it has already been held that at least in W.P.(C)

No.7185/2009, no relief of compensation has been sought.

11. We therefore do not find any merit in these petitions. The same are

dismissed. We however implore the Government of India to continue its

efforts for release of these persons. We refrain from imposing any costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE JULY 13, 2012 „gsr‟