Image courtesy: https://www.deccanherald.com/
May 26, 2023
By: Venkatesh Nayak
According to recent media reports, prison authorities in Pakistan released and sent back 198 jailed fishermen who are Indian nationals as a “goodwill gesture” earlier this month. While their families might be celebrating the reunion with their loved ones, the families of another 454 fishermen who are also Indian nationals and languishing in Pakistan’s jails will have to wait much longer. Meanwhile, Zulfiqar, one Indian national prisoner is said to have died in jail recently, after being selected for release as part of the initial batch of 200 individuals. So the number of fishermen who ought to have been released becomes 199 but only 198 were released according to media reports. What happened to the 199th individual who had been identified for release remains a mystery.
According to a reply tabled in the Lok Sabha in February 2022, by the Union Minister of State for External Affairs, 2,193 Indian prisoners including fishermen have been sent back to India from Pakistan, since 2014. While this large figure serves as a testimonial to the Union Government’s efforts to secure their repatriation, the other side of the story of Indian nationals languishing in prisons across India’s Western border also needs to be told.
Most importantly, why the remaining 454 Indian fishermen languishing in Pakistan’s jails cannot be repatriated along with the 199 who will be released soon, is an urgent question that must be asked. This question is both important and urgent because, according to data furnished by the Union Ministry of External Affairs, under The Right to Information Act, 2005 (RTI Act) they have also completed their sentence and their status as Indian nationals has also been “confirmed”. Further, in its February 2022 reply tabled in the Lok Sabha, the Union Government claimed, “upon receipt of reports of apprehension of Indian prisoners and fishermen, [it] immediately takes up the matter with Pakistan through diplomatic channels and seeks consular access and their early release and repatriation.” What we know little about is the action being taken to bring back other Indian nationals who are languishing in Pakistan’s prisons for several years despite completing their sentences. While the sentence many of them served lasted only a few months, they remain incarcerated in prison for several years, without release and more importantly without the sanction of the law.
Multiple rounds of our RTI interventions made since February 2021, indicate that the absolute number of Indian nationals who are languishing in various prisons across Pakistan has only risen despite the release of some of them from time to time. This is the first set of findings from an analysis of the data about Indian nationals in Pakistani jails, obtained under the RTI Act in February 2021 and February/April 2023.
It is a well known fact that due to the unresolved dispute regarding the maritime boundary between India and Pakistan, many fishermen are detained by the authorities of either country, year after year, for violating a border that is both undefined and difficult to spot on the high seas. This has been going on ever since the two countries attained independence in 1947. While the mostly unlettered and impoverished fishermen pay the price of their liberty for venturing out too far in search of their means of livelihood, the highly educated politicians and diplomats whose salary bill is borne by these and other taxpayers have not duly discharged their responsibility of resolving the dispute since the last 75 years. Another category of Indian nationals who end up in prison are those punished for overstaying after the expiry of their visa. A third and highly contentious category is that of Indian defence personnel who went missing (MIDPs) during the Indo-Pak wars of 1965 and 1971 and those soldiers who went missing during peace time by unwittingly crossing the international border. Unlike civilian prisoners, these MIDPs never come back. A fourth category of prisoners are those who have been accused of offences under Pakistan's Official Secrets Act, 1923. Some of them are still under trial, some have been sentenced to long years of imprisonment and others languish in jail even after serving the entire length of the prison term imposed on them.
One of the early instances of Parliament being concerned about the problem of Indian nationals languishing in Pakistani jails is reported from 1978-79. Two MPs representing Gujarat in the Lok Sabha- Mr. Ahmed M. Patel and Mr. Amar Sinh V. Rathawa quizzed the Union External Affairs Ministry about Indians lodged in Pakistani jails and Pakistani nationals lodged in Indian jails. The then Union Minister of State for External Affairs, Mr. Samarendra Kundu replied that 430 Pakistanis were held in Indian jails under “preventive detention” as of 31st December, 1977 and 250 Indians were being held in jails across Pakistan (Annexure-1). Not being satisfied with the reply, Mr. Rathawa sought a detailed reply again in April 1978 on the same issue. The Union Government was compelled in this manner to table in the Lok Sabha a list of names of Indian nationals who were held in Pakistani jails (Annexure-2 ). This issue continues to be raised in Parliament almost every year.
More recently, a mechanism has been put in place for dealing with the issue of such prisoners. In 2008, India and Pakistan entered into a bilateral agreement to ensure consular access for prisoners who are their nationals (Annexure-3). One important aspect of this Agreement is the mandate on both countries to exchange lists of prisoners of each other’s nationalities. Thanks to this Agreement, on the first day of January and July, the two Governments exchange information about prisoners belonging to each other’s nationalities, without fail. While both countries issue a press release each pointing to the fulfilment of this mandate twice a year, the actual lists are not publicly disclosed. Only broad figures with regard to prisoners being held or released are mentioned in the press release.
The first three RTI Interventions
Having read about the complex issue of prisoners languishing in jails on both sides of the border, an RTI application was submitted to the Union Ministry of External Affairs (MEA) in February 2021 through the RTI Online Facility seeking the following information, as a test case:
“I. Apropos the press release dated 01 January, 2021, uploaded on your website regarding the exchange of list of prisoners between India and Pakistan, I would like to obtain access to information under the RTI Act, 2005, in the form specified at paragraph no. (II) below:
a) A legible signed copy of the Agreement on Consular Access, 2008 with Pakistan,
b) A legible copy of the list of prisoners who are Indian nationals, received from Pakistan through diplomatic channels, as mentioned in the aforementioned press release along with the covering letter and annexures, if any,
c) A legible copy of all communication sent to Pakistan through diplomatic channels, since 01 June, 2008, till date, calling for the early release and repatriation of missing Indian defence personnel from the custody of Pakistan, along with covering letters and annexures, if any,
d) A legible copy of every list of missing Indian defence personnel being held in the custody of Pakistan along with the suspected geographical location of every such individual as submitted to Pakistan through diplomatic channels since 01 June, 2008, along with annexures and covering letter, if any,
e) The date on which every defence personnel referred to at sub-para (d) above has reportedly gone missing as per available official records. Kindly indicate the rank of every such individual at the time of being reported missing,
f) A legible copy of the jail-wise list of prisoners of unsound mind believed to be of Indian-origin lodged in Jails in Pakistan as on date, and
g) A legible copy of all communication submitted to Pakistan through diplomatic channels pertaining to the organisation of a visit of the Joint Judicial Committee to Pakistan, along with annexures, if any.
II. Form of access sought: Kindly upload all the information described above on your website and inform me of the respective URLs via email.
III. Kindly note, all the information specified above are in the nature of information that is required to be disclosed suo motu under Sections 4(1)(c) and 4(1)(d) read with Section 4(2) of the RTI Act, 2005. As I have not been able to locate any of this information on your website, I am constrained to submit this formal request.”
As all the information described above relates to India’s foreign relations and its defence interests, we expected an outright rejection of the RTI application.
The RTI replies
However, the MEA’s Central Public Information Officer (CPIO) supplied information about fishermen and civilian prisoners including those who are mentally unsound, free of charge within the statutory deadline of 30 days (Annexure-4). MEA did not publish this information on its website despite the specific request made in the RTI application. The queries with regard to the missing Indian defence personnel (MIDPs) were transferred to the Union Ministry of Defence (MoD). Interestingly, the CPIO did not supply a copy of the 2008 Consular Access Agreement, which we had asked for. Instead, he claimed that it was freely available in the public domain.
The MEA maintains an extensive database of treaties and agreements that India has entered into with other countries. However, the 2008 Consular Agreement is not published there (checked twice- while submitting the RTI application and now while drafting this despatch). Instead, it is available in the treaties database of the United Nations because Pakistan took the initiative of getting it registered with the UN soon after it was signed (see Annexure-3 below). The CPIO also denied access to information about the Joint Judicial Committee and correspondence relating to the release of MDPs by invoking the national security related exemption under Section 8(1)(a) of the RTI Act.
The MoD did not reply to that portion of the RTI application relating to MDPs which it received by way of transfer from the MEA even after 30 days. So, a first appeal was submitted against this silence which amounts to deemed refusal under the RTI Act. The newly created Department of Military Affairs (DMA) responded to the first appeal directing the Headquarters Integrated Defence Staff (HQIDS) to send details of MDPs who went missing in the 1965 and 1971 Indo-Pak wars and during peacetime. While supplying the information, their CPIO omitted the list containing the names of MDPs who went missing during peacetime (Annexure-5). There is a reason why this information was sought. We will return to this topic in the last segment of this dispatch.
This information was not analysed and released immediately in the public domain, for two reasons- first, the unprecedented pressure of the COVID-19 pandemic that affected our work requiring us to focus on emergent issues relating to that phenomenon and second, there was no baseline data with which to compare the lists supplied under the RTI Act.
After the next round of information exchange between the two countries was reported in the media in July 2021, one more RTI application was submitted seeking similar information. MEA’s CPIO charged Rs. 152/- for supplying the copies of the lists exchanged between the two countries. Interestingly, this CPIO supplied the list of MDPs from the 1965 and 1971 Indo-Pak wars without transferring this portion of the RTI application to the Defence Ministry (Annexure-6).
A third RTI application seeking similar information except for MDPs was submitted to the MEA a year later in July 2022. The CPIO furnished the information after an additional fee of Rs. 52/- was paid (Annexure-7). On both these occasions, the prisoners’ lists obtained through RTI were not released in the public domain as a preliminary analysis could not be attempted due to pressure of other work.
The 4th RTI Intervention
Another formal request for proactive disclosure of the prisoners’ lists exchanged in January 2023 was submitted to the MEA through the RTI Online facility in January, this year. The CPIO sent the information free of cost in February 2023, by post. However, the packet containing the information was returned to the MEA undelivered by the Dept. of Posts citing absence of a mobile phone no. We learnt of this only after submitting a first appeal against the MEA’s perceived lack of response. Finally, in April after receiving multiple reminders, MEA’s CPIO re-sent the information free of charge (Annexure-8).
Preliminary analysis of the data regarding Indian fishermen prisoners held in Pakistan jails
Our key fundings from a preliminary analysis of the datasets obtained through RTI on different occasions are as follows:
1) A total of 654 Indian fishermen were being held in Pakistan as on 01 January, 2023. In January 2021 this figure was at 270 (see Annexure-4 below). In July 2021 (see Annexure-6 below), it had gone up to 558 and reached 615 in August 2022 (see Annexure-7 below). So clearly, the numbers are only growing in recent years despite the release of prisoners from time to time;
2) All 654 of them are males lodged in the Malir District Prison and Correctional Facility situated in Landhi town of Karachi. According to Pakistani media reports, this prison was constructed to house a maximum of 1,800 prisoners. But as of December 2022, it had 7,000 inmates- indicating very high levels of overcrowding;
3) At least 87 of the 654 Indian fishermen mentioned on the list supplied by Pakistan, have Islamic-sounding names indicating that they might belong to the Muslim community. At least 550 of the remaining are non-Muslim sounding names. Another 17 are such that it is not possible to guess their religious background. A large number of these names are commonly found among men belonging to tribal communities settled in Gujarat. However, in the absence of more details it is not possible to comment on the socio-cultural background of these fishermen. Interestingly, the name of Zulfiqar who is said to have died despite being identified for release this month, does not figure in either in the 2021 or in the 2023 list. Instead, a certain ‘Zulfiraq’ is mentioned in the list of other civilian prisoners being held in Pakistan. We will discuss this case in the next segment;
4) Every one of these 654 individuals was detained under Pakistan’s Fisheries Act, 1897. The text of this law is not available on the website of Pakistan’s Parliament. So, the text displayed on the website of the UN’s Food and Agriculture Organisation (FAO) is being used for the purpose of analysis. Interestingly, the Fisheries Act (as displayed on FOA’s website) prescribes a maximum jail term of not more than two months each for two specific offences- fishing by using dynamite or poison or lime or some other noxious material. It is not clear from the list shared by the Pakistani authorities as to which of these offences Indian fishermen were charged with.
5) It is important to note, every one of these 654 fishermen has completed the sentence imposed on him. An analysis of the data contained in the list of Indian fishermen handed over by Pakistan to the Government of India indicates the following:
a) 45 Indian fishermen were booked in a total of four cases registered in 2018;
b) 138 Indian fishermen were booked in a total of six cases registered in 2019;
c) 130 Indian fishermen were booked in a total of three cases registered in 2020;
d) 221 Indian fishermen were booked in a total of three cases registered in 2021; and
e) 120 Indian fishermen were booked in a total of eight cases registered in 2022
6) The dates on which consular access was granted to the Indian fishermen indicates the enormous delay caused despite the 2008 Consular Agreement’s mandate to expedite such matters. All 45 fishermen booked in 2018 were granted consular access in June 2018. However, all 138 fishermen booked in 2019 were granted consular access only in the year 2021- between 24 and 28 May. Why were the fishermen incarcerated since 2019 granted consular access so late is a mystery which the MEA must clear up;
7) 129 of the 130 fishermen booked in 2020 were granted consular access during the same dates in May 2021 while the remaining individual was granted consular access a little earlier that year i.e., between 16-18 May, 2021. All 221 fishermen booked in 2021 were granted consular access between 16-28 May 2021. All 120 fishermen booked in 2022 were granted consular access in the month of November 2022;
8) The list supplied by Pakistani authorities states that the process of verification of the nationality status of the Indian fishermen has been completed for all 654 individuals. However, the varying dates of grant of consular access to the fishermen indicates that the waiting period ranges between a few months to almost two years. This is calculated from the year on which the police instituted the case against each group of Indian fishermen detained and the date(s) on which consular access was granted. Even more worrisome is the treatment of the group of fishermen languishing in prison since 2018 who got consular access that year itself, but had not been released from prison until 01 January, 2023 even though they had completed their sentence and their nationality had been verified. Who will compensate them for the loss of their liberty is a big question that must be addressed by both countries; and
9) It is not clear from the recent media reports as to whether the 198 fishermen who were released recently are from the 2018-20 batch of prisoners in this category. The Government of India must clarify its policy for seeking repatriation of prisoners- whether it follows a first-in-first-out policy or some other criteria.
Preliminary analysis of the data regarding other Indian civilian prisoners held in Pakistan jails
Our key fundings from a preliminary analysis of the datasets obtained through RTI on different occasions are as follows:
1) A total of 51 Indian nationals who are civilians but not fishermen were being held in Pakistan as on 01 January, 2023. In January 2021 this figure was at 49. In July 2021, it went up to 51 and dropped to 49 again in July 2022. So, it appears that there is no large-scale increase or decrease in numbers. However, the grounds on which these civilian prisoners are being held in Pakistan’s prisons, the nature and the length of sentence imposed in the case of convicts and the length of their incarceration beyond the period of sentence served, their health condition, grant of consular access etc. are all cause for concern. Some of this information is recorded in the list of prisoners handed over by the Government of Pakistan to the Government of India every six months;
2) Out of the 51 Indian civilian prisoners being held in Pakistan, the names of six indicate they are women. Three of them are currently admitted to the Punjab Institute of Mental Health at Lahore as they are categorised as persons of “unsound mind”. Two other women are staying at the Halfway Home Township, Lahore. One Ms. Amina related to Nafees Ahmad remains in the Central Jail Lahore having completed the sentence of two months' simple imprisonment in September 2022. She has not received any consular access according to the list handed over by Pakistan to MEA. The gender of three Indian prisoners cannot be inferred from the names mentioned in the lists. The remaining prisoners are men;
3) 10 of the 51 prisoners, who are said to be mentally unsound, have been admitted to the Punjab Institute of Mental Health at Lahore. According to the January 2021 list, obtained from MEA under the RTI Act, only one of them was admitted to this hospital (see Annexure-4 below). So, admitting more such people to a mental healthcare facility is a positive development. However, two more Indian nationals who were identified as “mentally unsound” in the January 2021 list (see Annexure-4 below) continue to remain in the Central Jail at Rawalpindi but they are not identified as such in the list of civilian prisoners handed over to the Government of India in January 2023. It is not known whether their mental health has improved or their mental health status has simply been ignored while preparing the latest list;
4) At least four prisoners who were included in the January 2021 list of “mentally unsound” persons do not find mention in the January 2023 list- one of them is a woman and another is only described as “gunga behera” (dumb and deaf). It is not known whether they were released or they are deceased;
5) All these prisoners belonging to the “mentally unsound” category were sentenced to terms ranging from3 to 18 months in prison (i.e., initial prison term plus extended incarceration due to their inability to pay the fine imposed by the trial court) in cases instituted between 2003 and 2017. Every one of them has completed the jail term long ago. While the January 2021 list (see Annexure-4 below) mentions the exact dates on which consular access was granted, the January 2023 list (Annexure-8) omits the exact dates and only mentions the phrase: “multiple times” under the column “Date of Consular Access” for these prisoners;
6) Through a Google search for prisoners belonging to the above category, we discovered a list of such persons circulated by the Assam Police Department in August, 2021 along with their names, photographs and details of their family background, age and gender (Annexure-9). Perhaps Police Departments in other States might also have circulated such lists to identify the next of kin of these prisoners. Clearly, the Foreign Ministries are exchanging a lot more information about prisoners than what is included in the list shared every six months under the 2008 Consular Agreement. Going by the names, at least one person identified in this list as probably belonging to Porbandar Industrial Area, Gujarat (Annexure-9 Serial #13) corresponding to Serial #4 in the January 2023 list) might be connected with Maddur town in Karnataka district. Given the fact that all persons in this category are unable to look after themselves due to their poor health condition, the two Governments must make sure that they are not incarcerated in prison but are shifted to mental health facilities and are given proper care until they are reunited with their families;
7) 37 Indian civilians continue to remain locked up in jails across Pakistan as of 01 January, 2023. One of them has been sentenced to death in a case of murder instituted in 1999. Whether he has appealed against the imposition of capital punishment and has adequate access to legal aid is not clear from any of the lists received from the Government of Pakistan. He is currently lodged in the Central Jail, Mirpur;
8) Nine others are serving sentences of varying duration- between 1-14 years. Six of them have been convicted under Pakistan’s Official Secrets Act, 1923 (OSA) though the date of institution of these cases is not known. One of these convicts has been sentenced to 14 years of rigorous imprisonment and another individual has been sentenced to 13 years in prison. Both are lodged in the Central Jail, Muzaffarabad and are scheduled for release in the years 2028 and 2031, respectively. Two more individuals are serving sentences ranging between 8-12 years and lodged in the same jail after their conviction under OSA. Strangely, despite mentioning the date on which all four mentioned above will complete their prison term, the column on “Date of Consular Access” shows them as “undertrials”. The January 2021 list mentions “NIL” under the “Date of Consular Access” column against the aforementioned two individuals. It is not known whether they have been provided consular access at all;
9) One prisoner punished under Pakistan’s OSA and Pakistan Army Act completed the five-year sentence in December 2021. Though he was said to have been granted consular access in 2017, he continued to remain incarcerated in the Central Jail, Lahore as of 01 January, 2023. It is not known whether he will be released this month as a “good will gesture” by the Government of Pakistan;
10) OSA is an anti-espionage law of similar vintage on both sides of the border. An individual against whom a case is instituted under such laws is invariably accused of spying. Surely, ordinary civilians unconnected with intelligence agencies or matters related to national security or defence interests are extremely unlikely to be hauled up for punishment under such laws. If an Indian national is convicted under OSA in Pakistan, it is not unreasonable to presume that he might have been engaged in intelligence-gathering activities. What kind of protection do such individuals receive from the Government of India is not public knowledge. How has the Government of India reacted to the mention of such persons in the list of prisoners handed over by Pakistan is not known. Does the Government acknowledge their nationality? What steps has it taken to provide them assistance during and after the trial and after completion of the prison term is also not known;
11) Recent media reports about the probable release of 199 Indian prisoners cites an unnamed Pakistani jail official for the news of the death of Zulfiqar- the 200th prisoner identified for release later this month as a goodwill gesture. However, as noted above, his name is not mentioned in the list of Indian fishermen who have completed their jail term as on 01 January, 2023, Instead, a certain “Zulfiraq” is mentioned in the list of non-fishermen civilian prisoners furnished by the Government of Pakistan in January 2023. According to this list, he was sentenced to rigorous imprisonment for only 27 days in a case instituted in 2018 and subjected to an additional sentence of 15 days for any inability to pay the fine of Rs. 5,000 (Pakistani currency). His jail term ended in December 2018 but he was granted consular access only in May 2021. It would be a travesty of justice if this indeed is the person who died in prison after being identified for release later this month;
12) More than 10 civilian prisoners languishing in Prison were convicted of violation of laws relating to foreigners which regulate their entry into and stay in Pakistan. With the exception of two individuals who were sentenced to prison terms of one and two years respectively, the remaining individuals were sentenced to periods ranging from less than four weeks to six months. All of them have been languishing in prison since 2019 after completion of their sentence for periods ranging between a few months to more than two years. This state of affairs is most unfortunate because Section 14C of the Foreigners Act, 1946 permits the detention of a convict for violation of its provisions only for a period of three months after the sentence is completed. Nevertheless, scores of prisoners including those who are in poor mental health continue to languish in prisons for years on end.
Missing Indian Defence Personnel (MIDPs)
This is the last segment of our first set of preliminary findings of the data obtained through the RTI Act. In fact, this series of RTI interventions to seek information about Indian nationals incarcerated in Pakistan began soon after a former colleague and friend sent an alert about the demise of the father of an Indian soldier who went missing during peacetime. Captain Sanjit Bhattacharjee of 7/8 Gorkha Rifles, went missing somewhere on the Indo-Pak border in Kutch Gujarat while he was on patrol duty at night between 19-20 April, 1997. His family knocked on many sarkari doors including that of the Minister of Defence to find out about the whereabouts of their son, for several years, in vain. Finally in 2005 the then President of India and Supreme Commander of India’s Defence Forces- Mr. Pranab Mukherji (now deceased) and the then Chief of the Indian Army, Gen. N. C. Vij (now retired) sent separate notes of condolence to Capt. Bhattacharjee’s mother mentioning his untimely demise. This was as per government policy to enable the family to claim the benefits due to them on account of a soldier presumed to have died while being on duty. However, the parents had access to some information that Capt. Bhattacharjee was taken to Hyderabad, Pakistan soon after he went missing. So they did not give up their search. Sometime in November 2020, Capt. Bhattacharjee’s father breathed his last with his son’s name on his lips. This is when my former colleague and friend, himself an ex-serviceman, dialled me with details about Capt. Bhattacharjee and asked whether RTI interventions would be of any help.
The first two RTI interventions made in January and July 2021 included questions about MIDPs. As explained above, the Indian Army shared information about Indian soldiers who went missing during the 1965 and 1971 war with Pakistan along with the names of their next-of-kin (Annexure-5). The addresses and telephone nos. of the next-of-kin have been redacted to protect their privacy). The list named six MIDPs who went missing during the 1965 war and 49 MIDPs who went missing during the 1971 war. This included personnel of all three defence forces. However, the CPIO did not supply the list of soldiers who went missing on India’s borders during peacetime.
In response to the second RTI intervention made in July, 2021, MEA furnished this list on its own. Lo and behold! Capt. Bhattacharjee’s name was on that list (Annexure-10 serial #2, page #3). So officially, Capt. Bhattacharjee continues to be treated as an MIDP even though his family had been informed otherwise. Another 20 Indian soldiers have gone missing between 1996 and 2010. 12 of them went missing in the 21st century. Interestingly, the list supplied by MEA has 62 names of soldiers who went missing during the two wars instead of 54, according to the list which the Indian Army supplied under RTI earlier that year.
Meanwhile, in 2021, Capt. Bhattacharjee’s mother moved the Supreme Court of India demanding action to bring her son back home. In September 2022, the Apex Court directed the Government to inform Mrs. Kamla Bhattacharjee, on a quarterly basis, about the actions taken to identify the whereabouts of her son.
Several articles have been written about this problem of MIDPs. MPs seek information in Parliament every year about the action taken by the Government to bring them back. Researchers have also published voluminous books on the efforts that have been made to identify the whereabouts of these MIDPs. However, not one of the MIDPs on the list supplied under RTI has been reunited with his family till date.
The MEA puts out press releases every six months about the exchange of prisoners lists with Pakistan in a routine manner and mentions the effort to locate MIDPs as well. More than a decade and half ago, the Government of India arranged for the visit of the relatives of some of the MIDPs to Pakistan, but it did not yield any positive result.
Interestingly, in the latest press note which the MEA put out in January 2023 about the exchange of lists of prisoners, it mentioned the issue of MIDPs in passing. A Google search helped locate a similar press note issued by the Foreign Affairs Ministry of Pakistan about the exchange of the prisoners’ lists in January 2023 (Annexure-11). The last line of this press note reads as follows:
“Furthermore, a request for grant of consular access to missing defence personnel of 1965 and 1971 wars, and special consular access to 56 civil prisoners has also been made.”
This segment of the press note is very intriguing because the Government of India’s official stance in public as well as in Parliament has always been that it does not hold any Pakistani Defence personnel in its custody. All 93,000 plus prisoners of war held during the Indo-Pak war of 1971 are said to have been repatriated to Pakistan. Instead, the Union Government has always maintained that despite its numerous efforts, the Pakistani establishment does not admit to holding any MIDPs in its custody.
Therefore, in the 4th RTI intervention made in January, 2023, the following query was added:
“f) A legible copy of the list of individuals currently lodged in Indian prisons whose nationality status has not been confirmed by Pakistan, as stated in the aforementioned press release,
g) A legible copy of any list of missing Pakistani defence personnel provided by Pakistan to India, till date, requesting grant of early consular access to them.” ( Annexure-12 )
MEA’s CPIO replied to this question as follows:
“6. With respect to queries I(f) & 1(g), the information is exempted from disclosure under Section 8(10(f) of RTI Act, 2005.” (emphasis as in the original; Annexure-8 page #1)
The above reply amounts to a candid admission that Government of India has received a list of Pakistani soldiers who have gone missing, at least in January 2023, if not earlier, but it does not intend to disclose the details in the same manner as it has disclosed details of MIDPs since 1979 (Annexure-2). If MEA had not received such a list from Pakistan, the CPIO could have easily denied its existence by stating that information was “nil”. Instead, an exemption is being invoked to withhold access.
Section 8(1)(f) of the RTI Act permits the Government to refuse access to information received in confidence from a foreign Government. Thankfully, this exemption is not invoked to deny access to information about MIDPs shared with Pakistan, or else, we would not have come to know about the continued mention of Capt. Sanjit Bhattacharjee in this list.
Clearly, there is a lack of transparency on both sides of the border when it comes to missing defence personnel. While Pakistan refuses to admit that it holds MIDPs, India does not want to disclose the list of missing Pakistani soldiers it apparently receives from Pakistan. As a result of this opacity, scores of families of missing soldiers (at least 84 in India and an unknown number in Pakistan) do not yet have closure about the fate of their relatives who went missing while serving their country. The Olympian efforts made to secure the repatriation of a Group Captain of the Indian Air Force in 2019 who bailed out of his fighter aircraft on the Pakistani side of the border have not been replicated in the case of other MIDPs despite successive governments coming to power in New Delhi. Will the civilian prisoners be treated with any greater care? Time alone will tell.
[Note: The complete set of documents supplied by the CPIOs on all four occasions are attached below. The file name of every attachment hints at its contents. The next dispatch will be based on an analysis of the list of Pakistani prisoners in India prepared by MEA and handed over to Pakistan.]
CHRI Trail of Inquiry: Annexure-1-LS-DebateExtract-12Dec1978 | Annexure-2-LS-DebateExtract-12Apr1979 | Annexure-3-IndoPak-ConsularAccessAgreement-2008 | Annexure-4-MEA-IndoPak-InfoExchange-CPIOreplyDocs-Feb21 | Annexure-5-HQIDS-IndianMDPlist-Apr21 | Annexure-6-IndoPak-InfoExchange-CPIOreplydocs-Jul21 | Annexure-7-IndoPak-InfoExchange-CPIOreplydocs-Aug22 | Annexure-8-IndoPak-InfoExchange-CPIOreplydocs-Apr23 | Annexure-9-AssamPolice-IndianPrisoners-UnsoundMind-List-2021 |Annexure-10-IndianMDPs-List-Jul21 | Annexure-11-IndoPak-PrisonerInfoExchange-PakPressNote-Jan23 | Annexure-12-IndoPak-PrisonerInfoExchange-RTIappln-Jan23