SC fixes final hearing on writ petition against detention of Pak & POK prisoners in India

A Division Bench of the Supreme Court of India comprising JJ Hon’ble Mr. J. Chelameswar & Mr. Anay Manohar Sapre ordered final hearing on the writ petition filed by Prof.Bhim Singh, Sr.Advocate of Supreme Court against the illegal, improper and unconstitutional detention of nearly 250 Pak and POK prisoners languishing in Indian jails for over a decade.

Prof.Bhim Singh questioned the authority of the agreement on Consular Access signed between Govts. of India and Pakistan on 21.05.2008. Prof.Bhim Singh argued that Article 21 of Constitution of India cannot be shadowed or camouflaged by any executive order or authority. Article 21, he argued provides, “No person shall be deprived of his (her) life or personal liberty except according to procedure established by law.”

Prof.Bhim Singh said that any agreement or declaration made by any executive authority cannot override the authority of this command of Article 21. He said that this right of personal liberty is vested in every person (citizens of any country and all human beings) including foreigners.  

Prof.Bhim Singh said that Consular Access signed between India and Pakistan on 21.05.2008 cannot be accepted and does not pass the test of human rights as enshrined in Article 21.

Prof.Bhim Singh strongly argued for the release of 59 persons who have completed their sentence or against whom no offence has been registered but nationality has not been confirmed. He regretted that 59 prisoners stated to be, 59 Pakistani prisoners who have completed their sentence/offence not registered but nationality not yet confrmed are lodged in different jails/prisons and some of them in the detention centres in Delhi, Alwar (Rajasthan), U.P., Amritsar (Punjab), Bhuj JIC (Interrogation Centre) in Bhuj (Gujarat) and some of them are lodged in jails in J&K and Rajasthan. Prof.Bhim Singh said that Supreme Court direction to shift all prisoners from jails to detention centres has not been followed in totality.   

Supreme Court of India instructions/orders on the Pak prisoners not (other than under trials or convicts) dated 28.02.2012 issued by the Supreme Court in writ petitions (crl.) no.310/2005 & 82/2010 the Supreme Court had issued clear direction to the Union of India that,“It is indeed unfortunate that these 37 Pakistani prisoners who have been served out their sentence and are not required under Indian laws have been kept injail 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, these 37 Pakistani prisoners can 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.”

The number of 37 has gone up to 59 according to the latest counter affidavit filed by the Union of India as mentioned above. The Union of India as well as the State of J&K have violated this order of the Hon’ble Supreme Court of India and several Pak & POK prisoners are being treated in jails in J&K, Rajasthan and in some other jails. In spite of the clear direction of Supreme Court that,

“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.”

Prof.Bhim Singh said the both the Union of India and respective states have violated the orders of the Hon’ble Supreme Court. Prof.Bhim Singh said that in pursuance of the direction of Supreme Court, Foreign Office (Director-Foreigners) issued most immediate direction to the Principal Secretaries (Home) of all State Govts.,Union Territories administration etc. in reference to the orders of the Supreme Court in Bhim Singh’s writ petition. This order of Govt.of India was issued on 07.03.2012 which clearly directed all States that, “Release be ensured that all foreign nationals who have completed their sentence but whose deportation/repatriation is awaited due to non-confirmation of nationality/issue of travel documents by the country concerned maybe released from jails immediately and they maybe kept as appropriate place outside the jail premises with restricted movement pending their repatriation. It was made clear that this shall be done under the powers delegated to the State Govts. under Section 3(2) (e) of the Foreigners Act, 1946 and under paragraph 11 of the Foreigners Order, 1948.”

It was clearly instructed that foreigners so released must be kept in safe custody with basic facilities of electricity, water and hygiene with full security.

The Govt. of India, the Ministry of Home Affairs (Foreign Division) issued another instruction on 01.09.2014 directing the States/Union Territories to set up detention centres/holding centres/camps in various states/union territories for restricting the movements of illegal immigrants/foreign nationals awaiting deportation after completition of their sentences. Prof.Bhim Singh said that the Central Govt.has failed in this regard to take appropriate actions/remedies to ensure that the foreign nationals are repatriated to their respective countries.

Prof.Bhim Singh said that more than 15 foreign nationals have been sentenced for life and paid that their appeals maybe heard by the Supreme Court and those who have completed more than 15 years maybe sent back to their respective countries on the principle that they have completed more than 14 years in jails.Prof.Bhim Singh also said that the Govt. has accepted in its counter affidavit that 109 prisoners are still in different jails in India as under trial. He said that this is also violation of the direction of the Supreme Court order of  2008 in writ petition no.310/2005 where the Hon’ble Supreme Court had directed to conclude all trials of the foreign prisoners within one year. Prof.Bhim Singh argues that this order of the Supreme Court has also been violated. According to the rejoinder of the Home Ministry 64 foreign prisoners are undergoing sentence which include about 15 Pakistani prisoners undergoing life sentence in different jails in the country.

Prof.Bhim Singh request was accepted by the Supreme Court and the matter fixed for final hearing for 9th of September, 2016.

Sd/-B.S.Billowria,Advocate

Secretary, State Legal Aid Committee,J&K

NPP files counter to ‘status report’ filed by Solicitor General on writ petition for Governor Rule in J&K

The Solicitor General of Union of India, Shri Ranjit Kumar had filed a status report in the Supreme Court of India on the direction of the Supreme Court on writ petition filed by J&K National Panthers Party through its General Secretary, Shri B.S.Billowria, Advocate seeking promulgation Governor Rule in J&K without any delay to protect the life of the citizens in J&K.

Prof.Bhim Singh, Sr. Advocate argued for the petitioner had made a strong plea for the imposition of Governor Rule under Section 92 of J&K Constitution as the petition said that the governance had completely collapsed and there is no security and safety of the citizens in the state. The Supreme Court had directed the Solicitor General of India on 29th July, 2016 to file a status report on the situation. The Solicitor General filed the status report on 5th August, 2016. The Supreme Court Division Bench presided by Chief Justice of India, Justice T.S. Thakur had allowed Prof.Bhim Singh to file the counter reply to the status report.

The Panthers Party filed the status report before the Supreme Court of India today through its General Secretary, Shri B.S.Billowria, Advocate. The case has been listed for hearing on Friday, 26th August, 2016.

 

Sd/-Naveed Hussain Naik, Advocate

Legal Aid Secretary, JKNPP

Mob: 9953097680

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IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.102 OF 2016

 

IN THE MATTER OF:-

 

J&K National Panthers Party                                     …Petitioner

 

 

Versus

Governor of J&K & Ors.                                    …Respondents

 

 

SUPPLMENTARY AFFIDAVIT

I, B.S.Billowria, Advocate s/o Late Shri Kunj Lal, aged 51, National General Secretary of JKNPP  presently at  Jantar Mantar, New Delhi-110001, do hereby solemnly affirm and state as under: –

  1. That the petition of J&K National Panthers Party has been filed through this deponent which was listed before this Hon’ble Court for hearing on 29thJuly, 2016.
  2. That the Learned Solicitor General of India filed a status report in pursuance of Order dated 29.07.2016 passed by this Hon’ble Court in this writ petition.
  3. That this Hon’ble Court was pleased to allow the petitioner to file a counter affidavit on the status report filed by the Solicitor General on the basis of inputs received from the State Government of J&K.
  4. That curfew was imposed in the entire Valley of Kashmir spread over nearly 15,000 sq. kms. of area on 8th July, 2016.
  5. There has been unrest in the entire Valley of Kashmir resulting in total anarchy, lawlessness, disruption in the functioning of public and private institutions including schools, colleges and the university centres in Kashmir Valley.
  6. That the public transport as well as private vehicles have been off the roads in Kashmir Valley since 8th July, 2016. Even the Shri Amarnath Yatra was disrupted repeatedly till it was concluded the other day.
  7. 60% of the population have gone off the work and the commercial activities have come to a standstill. There is no governance at all and the law-breakers and anti-social elements are governing the entire Valley threatening the very existence of living beings in the Valley.
  8. That this has affected the entire State of J&K as the National Highway from Pathankote to Leh, Ladakh has been disrupted. Commercial activities may they be at inter-provincial level or intra-state level have completely been disrupted. The pre-paid mobile telephones have been shut and internet system has not been functioning since 8th July, 2016. The lower judiciary is not functioning because of the collapse of the transportation and public order. The peace in the entire State stands threatened because of the breakdown of the communication with Kashmir Valley. The capital of the state is in Srinagar (Kashmir Valley) besides the High Court of J&K is also functioning from Srinagar in summer.
  9. The day to day proceeding can be gathered with accuracy from the reports dispatched by the Press Trust of India (PTI) from Srinagar.
  10. That this Hon’ble Court was pleased to seek status report from the Solicitor General of India on July 19, 2016.
  11. On July 29, 2016 when this Hon’ble Court heard this petition, the situation has deteriorated beyond imagination. But, what has happened is more and more people have died. The death toll is now nearly over 65; 150 to 200 people have been blinded apparently and thousands have been injured. All citizens of this Great Bharata-Alarming situation has arisen mainly because of pellet guns. They have become a symbol of an extremely chaotic order. Article 21 of the Constitution of India stands mutilated. 47 days(till 24-08-2016)of curfew in the Valley of flowers and heaven on Earth, Kashmir, has been caught in a dangerous cyclone.
  12. There has been a breakdown of civil administration. Essential services have failed, the medical service systems have broken down, educational systems have shut down, the schools and colleges are all closed and there is a massive humanitarian problem. There is no governance in Kashmir, the summer capital of the State.
  13. There is need to have a proper civil administration in J&K. Even the Civil Secretariat and judicial system are not functioning. Civil life stands disrupted for nearly 47 days. The State Government has failed beyond doubt and there lies need for save the people of the state and the security of India.
  14. In the past 47 days, the State Government could not come out with any particular initiative or any particular action, and the impression is going around that the Government, virtually, has disappeared or is not active and there lies urgent need for the President of India to act under Article 370 of the Indian Constitution read with Section 92 of the J&K constitution to advice the Governor of J&K to take over the administration in the state without any further delay in the interest of security of the state and the life of the citizens.
  15. Jammu & Kashmir is an extremely complex and complicated affair because nearly one-half of J&K State has been under illegal occupation of Pakistan which includes nearly 5000 sq. miles of erstwhile Jammu Province called ‘PoK’. And nearly, 32000 sq. miles of J&K (Indian) territory, Gilgit-Baltistanin 1948. Pakistan took control of Gilgit-Baltistan annexing this Indian territory as  Pakistan’s integral part in 2009. This has violated the U.N. resolution of 1948.
  16. That 50% of the original State of Jammu & Kashmir has been under the illegal occupation of Pak and China. The State of Jammu & Kashmir, which Maharaja Hari Singh acceded to the Union of India by signing the Instrument of Accession on 26th October, 1947, was 84,000 square miles. Today, India has hardly 42,000 square miles out of 84,000 square miles of J&K territory.
  17. There are many dimensions of the problems in J&K. There is the humanitarian dimension too. There are internal–external dimensions as well. There is the dimension of regional imbalances and regional problems in Jammu and Kashmir.
  18. Section 92 of the Constitution of J&K is the remedy available under the Constitution of J&K read with Article 370 of the Constitution of India when it becomes mandatory for the Governor of J&K to dismiss the government in J&K and impose Governor Rule in the interest of security and safety of the state and the citizens residing in that state.
  19. It is submitted that the authorities have failed to takeadequate measures to protect the lives of the people of the state and it is physically impossible to ensure supply of essential commodities in Kashmir Valley. Petroleum products cannot be moved into the Valley in the present situation because of the total disruption in the transport facilities, medical facilities cannot be provided to the patients and the students cannot go and sit in the examination. The ground reality as to law and order situation in the Kashmir Valley is concerned it has collapsed and the people have been living under the shadows of anarchy, disorder without any protection. There is no existence of rule of law or security.
  20. It is submitted that there is no governance  because there is no rule of law nor there is any security or safety of the citizens in the entire valley of Kashmir. The situation has gone beyond the control of the present Govt. Section 92 of the J&K constitution is the only remedy at this stage. The President of India is the only competent authority to advice the Governor of J&K to promulgate Governor rule in J&K by suspending the state assembly so that peace shall be restored and bridges of communication are built between the people of all provinces.

DEPONENT

VERIFICATION:

I, deponent, do hereby verify that facts of this supplementary affidavit are true and correct to my knowledge and belief. No part of it is false and nothing material has been concealed and suppressed therefrom.

Verified at New Delhi on this 24th day of August, 2016.  

DEPONENT 

Election Commission writes back to Bhim Singh, Denies violation of SC judgment on ‘paper trail’

Election Commission of India in its reply to Prof.Bhim Singh, Chief Patron of National Panthers Party has denied that, “The Commission has taken no initiative to implement ‘paper trail’ as directed by Supreme Court of India in the judgment dated 08.10.2014”. The Commission in its letter signed by Shri Madhusudan Gupta, Under Secretary has claimed that the allegation is not true. Prof.Bhim Singh in his letter dated 16.01.2015 addressed to the CEC has accused Election Commission for holding Assembly elections in December, 2014 in violation of the Supreme Court direction which read as,

“….we permit the ECI to introduce the same in gradual stages or geographical-wise in the ensuing General Election. The area, state or actual booth (s) are to be decided by the ECI and ECI is free to implement the same in a phased manner…”  

Admitting that VVPAT (Voter-verified paper audit trail) system was used in 71-Gandhinagar, 72-Jammu East and 73-Jammu West only. That means Election Commission of India has used ‘paper trail’ system in 3 out of 87 Assembly constituencies. Prof.Bhim Singh said that Gandhinagar Assembly constituency recorded 60% voting percentage whereas in the hills like Bani (Jammu), Bandipora (Kashmir) and other Assembly constituencies crossed voting percentage by 80%. Even in Udhampur Assembly constituency poll percentage crossed 82% which was not possible at all. Prof.Bhim Singh regretted that CEC is adopting ‘paper trail’ system only in two Assembly constituencies in NCT of Delhi say 40-New Delhi & 38-Delhi Cantt. This clearly shows, said Prof.Bhim Singh that the party in power in the Centre is trying to avoid the implementation of SC judgment for the obvious reasons. EVMs were manipulated in J&K and same shall be the situation in NCT of Delhi.

Prof.Bhim Singh said that the Panthers Party is filing a petition in the Supreme Court challenging the validity of the elections held recently in J&K which gave undue advantage to the BJP for obvious reasons.

Prof.Bhim Singh regretted that Election Commission of India has decided to hold biennial election to the Rajya Sabha for four seats in J&K through three notifications which is quite improper, unconstitutional, illegal and malafide as it is done so only to benefit PDP-BJP (new unholy alliance in the offing). In 2009 the Congress as a ruling party in the Centre played the same trick and fraud to secure all the four seats between two alliance partners namely, the Congress and the NC.