After he successfully spearheaded the move to release 300 Pakistani prisoners, Bhim Singh has focused on release of Indian prisoners across the border.
By RC Ganjoo
Almost five decades ago, he embarked upon an ambitious, almost audacious, road trip. Over five years (196772), he crisscrossed 120 nations on his motorcycle as a part of a “Peace Mission”. Since then, the fight for internal and external peace, reflected in terms of the fight for individual and others’ rights, became Prof Bhim Singh’s lifelong struggle. He battled against his “wrongful” detention, when he was not allowed to attend the Jammu and Kashmir (J&K) assembly session in 1985, even though he was an elected MLA.
The Supreme Court ordered that Rs. 50,000 compensation should be paid to Singh. The order was revolutionary under the Law of Torts. Chief patron of J&K’s Panthers Party and senior executive member of the Supreme Court Bar Association, Singh fought for the rights of hundreds of prisoners from Pakistan, Pakistan occupied Kashmir’s (PoK) and Afghanistan in Indian jails. Based on the writ petitions filed by him, his party and State Legal Aid Committee (headed by him), the Supreme Court released 300 of them, who had languished in prisons for years and decades. His war against such detainees has extended across the border; he wants Indian prisonersofwar in Pakistan to be freed too.
It is because of these endeavours that former Chief Justice of India PN Bhagwati said: “I have known Prof Bhim Singh for a number of years as an indomitable crusader for truth and justice. He possesses rare courage and determination, and wherever he is convinced of the truth of the cause espoused by him, he fights with great determination and vigor even at the cost of his personal safety and security.” And it is because of these efforts that Justice (now Chief Justice) RM Lodha observed: “Whatever relief the foreign prisoners have been able to secure, it is because of Bhim’s selfless and forceful commitment to the cause of civil rights and civil liberties.”
Recently, Singh was invited by Lahore’s Lawyers Congress to Pakistan, and was given grand receptions by the Supreme Court Bar Association of Pakistan in Islamabad and Lahore. However, he went there with a mission. “The new initiative is to seek cooperation from Pakistan lawyers to provide free legal aid, as we do in India, to fight for the rights of our prisoners in their jails. Although I did not get an opportunity to discuss this with the relevant authorities, I found tremendous support within the legal fraternity,” he explains. The first step would be to draw up a list of Indian prisonersofwar, get the lawyers from Pakistan to file petitions, and finally involve both the governments.
However, the legal tussle to free the prisoners may follow different routes in India and Pakistan. Here, Singh’s petitions invoked Article 21 of the constitution, which states that no person shall be deprived of his life and liberty without the procedure established by law. The apex court has also ruled that this “procedure” has to be fair and “stand the principles of natural justice”. Since Article 21 is a fundamental right of every person residing in India, irrespective of nationality and citizenship, Singh used it to contend that the detention of foreign nationals was illegal, improper and unconstitutional.
In a 2010 judgment, Justices Markandey Katju and Lodha agreed: “As regards the prisoners/foreigners who have been detained and who have been referred to in this writ petition, if they have completed their sentence and their nationality had been determined and has been accepted by the country of their origin, they shall be deported forthwith to their country. Regarding the prisoners who have completed their sentence but whose nationality has not yet been determined, we direct the concerned ministry to determine their nationality as soon as possible so that appropriate order can be passed.”
Pakistan’s constitution has a similar fundamental right, but it is worded slightly differently. Article 9 talks about “security of person” and states: “No person shall be deprived of life and liberty, save in accordance with law”. But Article 10A, which relates to the fundamental right to free trial, states that “for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” Combined together, the two rights may enable Pakistan’s lawyers to drum up similar arguments that Singh successfully deployed in India’s Supreme Court.
People in both India and Pakistan were imprisoned for varying reasons. For example, in India, many of them were arrested under the central Criminal Procedure Code. Others were jailed by the state authorities under Public Safety Act. In some cases, the Pakistanis and Afghanis had valid passports and visas, but had either deliberately or inadvertently overstayed in the country.
In addition, Singh has played a role in sorting out the J&K issue. During the tenure of UPAI, he organized two “hearttoheart” talks (2005 and 2007) between most of the factions and sections in India’s J&K and PoK. “These talks led to useful and positive results. The resolutions passed in the two conferences resulted in the opening up of the IndoPak borders at UriMuzaffarabad and RawalakoteKotli. The Indian government has agreed to a third ‘hearttoheart’ in New Delhi. I plan to hold it in both J&K and the capital,” he says.
As is evident, the stance taken by the Narendra Modiled regime will play a crucial role, both in enhancing relations between the two neighbors and helping the cause of Indian and Pakistani prisoners. At present, it seems that Modi wishes to improve trade and cultural links with Pakistan and is eager to have a meaningful dialogue with his counterpart Nawaz Sharif; the meeting of the two leaders after Modi’s swearing in was an indicator. But the ongoing debate on Article 370 of the Indian constitution, which provides a special status to J&K, may become an obstacle.
Time and again, Modi’s BJP has said that the article should be abrogated, that such a decision would send a clear signal that J&K is an integral part of India, governed by Indian laws. Despite the NDA not having the requisite numbers in Rajya Sabha to push through a constitutional amendment, the BJP will continue to make noises about Article 370. Clearly, the militant sections within the state, and also Islamabad will be unhappy with such a scenario.
Singh favors the abrogation of Article 370 and contends that it was meant to be a “temporary provision”, which has continued for decades. In effect, it has “provided opportunities to a section in Kashmir and another one in Jammu to exploit the local citizens. In Jammu, the article is the root cause for the antiIndia feelings in the region.” However, he adds that the move to remove Article 370 is likely to internationalize the issue and have impact on India’s “security and integrity” .
Similar is the case with BJP’s decision to rename PoK as Pakistanoccupied Jammu and Kashmir (PoJK). “This is a funny argument and demonstrates the misinformation in the minds of the policy makers. If one can argue for renaming PoK as PoJK, I can easily argue for it to be renamed as PoGBJK! The ‘GB’ in this abbreviation stands for GilgitBaltistan, which was a part of original J&K, and has been renamed by Pakistan as its fifth province. The PoJK idea shows the hollowness of our current decisionmakers, who should have studied the geography and history of the region,” feels Singh.
With confusion and chaos surrounding the J&K issue, relations between New Delhi and Islamabad, and NDA’s hardline feelings on sensitive matters like Article 370, Singh will have to walk the tight rope if he has to pursue his priorities.