Lawyers for Human Rights International (Regd.) vs Union of India and another

Ranjan Gogoi, C.J.—All the three writ petitions filed as Public Interest Litigations have raised the same issues on more or less similar facts. Accordingly, all the three cases were heard together and are being disposed of by the present common order. CWP Nos. 7778 of 2010, 8138 of 2010 and 15041 of 2010 raises the issue of the duties and responsibility of the Indian Missions abroad to look after the interests of Indian citizens who have been detained in foreign jails for their alleged involvement in the different kinds of offences. According to the petitioners, there are over one lac persons from the States of Punjab and Haryana, who are presently under detention in different foreign jails. Most of them are languishing CWP No. 7778 of 2010 -3-CWP No. 8138 of 2010 CWP No. 15041 of 2010 in such prisons without consular access. In some cases even when the period of imprisonment is over such persons still languish in the jails for want of valid travel documents which can only be issued by the Indian Missions in those countries. However, in many cases the Missions are not aware of the detention of Indian citizens as a result of which the travel documents do not get issued. In fact, according to the petitioners, due to dearth of information of the names and particulars of Indian citizens who are languishing in foreign jails the concerned Indian Missions have not been able to look after such citizens and ensure that their health, safety etc. is adequately protected. According to the petitioner in CWP No. 7778 of 2010 which is a human rights organization, adequate legal aid and assistance is not being provided by the Indian Missions who also do not have complete details of the Indian nationals in the various jails in UAE thereby jeopardizing the welfare and interests of the Indian nationals in custody in the foreign jails. The petitioner has further claimed that it should be allowed to visit the various countries in the UAE and provide legal aid to the Indian nationals who are languishing in jails.

In so far as CWP Nos. 7778 of 2010 and 8138 of 2010 are concerned, common replies have been filed on behalf of the Union of India (Ministry of External Affairs). There is also an affidavit of one Rakesh Aggarwal, Regional Passport Officer of the Regional Passport Office, Chandigarh on record in both the cases which would require to be noticed in some details.

The affidavit of Rakesh Aggarwal, Regional Passport Officer states that there are over 25 million overseas Indians living in more than 110 countries across the globe. The vast majority of the Indian nationals are temporary migrants and 90 per cent of them work in the gulf region. In the affidavit filed it has been stated that as per information provided by Indian Missions abroad, in November, 2010, there were over 6500 Indian prisoners lodged in different foreign jails for commission of a wide variety of crimes including over-stay and illegal entry. The affidavit recites that Indian Missions abroad are easily accessible to all Indian citizens and all Indian Missions have designated Nodal Officers who could be contacted during emergencies. The affidavit of the Regional Passport Officer also states that the Indian Missions abroad regularly keep in touch with the host countries with regard to detention/arrest of an Indian national and as soon as such information is received the Indian Missions get in touch with the local foreign office and other local authorities to gain consular access to the detained/arrested Indian nationals. After verification of the nationality of the person, the Missions abroad make all possible efforts with the foreign governments to provide necessary assistance to the Indian nationals in foreign jails including requests for speedy trials; remission of sentences and advice and guidance in legal and other matters besides ensuring fair and humane treatment. In the affidavit filed, it has also been stated that assistance for repatriation to India in cases of released Indian nationals is also provided. However, various welfare activities CWP No. 7778 of 2010 -5-CWP No. 8138 of 2010 CWP No. 15041 of 2010 such as boarding, lodging, emergency medical care, legal assistance, air passage and transportation of mortal remains, wherever required, are funded from the Indian Community Welfare Fund (ICWF) which exists in all Indian Missions abroad. The money into the Welfare Fund comes from levy of service charges by the Indian Missions on consular services, besides contribution by the Indian community and also budgetary support from the Ministry of Overseas Indian Affairs. The affidavit of the Regional Passport Officer specifically mentions the steps taken by the Ministry of Overseas Indian Affairs in countries like the UAE, Kuwait, Oman etc. where there is a large concentration of Indian nationals. Bilateral Memorandum of Understandings have been signed with some of the countries and negotiations for signing similar Memorandum of Understandings with other countries have been stated to be going on. In the affidavit filed it has further been stated that during the year 2010, over 10,000 Indian nationals were repatriated from different countries details of which are available in para 12 of the affidavit. The aforesaid affidavit of the Regional Passport Officer is dated 31.10.2011.

Taking note of the aforesaid affidavit, the Court had passed two separate orders dated 18.01.2011 in the writ petitions requiring the Union of India to file a specific affidavit with regard to the steps taken by the various Missions abroad to keep track of persons who are likely to be released from detention; to contact them while they are in detention and arrange for the travel documents etc. By the other order passed on the same date in the connected writ petition, the Court desired to know whether a policy similar to the one indicated in the affidavit filed with regard to the Emirates of Dubai, Sharjah etc. had been introduced in other countries. In terms of the said policy followed in Dubai, Sharjah etc., weekly visits to jails by the consulate officials have been organized whereas in the case of other countries in the Emirates such visits are on a monthly basis. During the course of such visits Indian prisoners are free to approach the consulate officials and valuable information concerning the welfare of the Indian nationals is obtained by the consulate officials.

Pursuant to the aforesaid orders of this Court, additional affidavits have been filed on behalf of the Union of India in all the three cases. The said affidavits are dated 14.03.2011 and have been filed by a responsible officer of the Ministry of External Affairs. In the aforesaid affidavits it has been stated that all Indian Missions abroad do keep track of Indian nationals who are likely to be released from detention; contact them while in detention and arrange for their travel documents after verification of the nationality of the detained person(s) from the concerned authorities in India. In the aforesaid affidavits, it is also mentioned that in certain countries e.g. Canada, USA and certain Western European countries strict privacy laws are in force which do not permit the local authorities to inform the Indian Missions about the arrest/detention of Indian nationals without the consent of the detainees. The said affidavits also recite that so far as the UAE and Embassy of India, Abu Dhabi and officials from the office of the Consulate General of India, Dubai regularly visit the jails to inquire about the welfare of the Indian nationals detained there.

Apart from the aforesaid affidavits, details of which have been mentioned above, we find that affidavits have been filed on behalf of the Director General of Police, Haryana mentioning the number of requests received for verification of the Indian nationality of persons detained in foreign prisons and the action taken on such requests. Elaborate suggestions, on behalf of the petitioners, as to what should be the proper steps that should be taken to effectively redress the situation have also been filed before the Court.

We have considered the facts of the case as revealed by the affidavits on record as well as the several documents enclosed thereto. The stand taken by the Union of India, as evident from the affidavits details of which have been discussed above, would go to show that within the framework of the laws of the foreign countries where the Indian nationals are in custody for alleged commission of various offences, adequate steps have been taken by the Indian Missions to keep track of the Indian citizens detained in foreign prisons and to look after their welfare while they are in custody. Such steps also extend to providing legal advice and assistance and request to the host country to expedite the trials. The Indian Missions, whenever contacted, also provide travel documents to the released Indian nationals to enable them to come back home. In the gulf countries, particularly, Dubai, Sharjah etc. periodic visits to the jails are organized by the Consulate and Embassy officials and in the course of such visits Indian nationals who are detained in prison in those countries are contacted and steps are taken to ensure their well being. The role of the Indian Missions in foreign countries will naturally be circumscribed by the laws and other norms prevailing in such countries. All steps that are taken to ensure the well being of Indian citizens who are detained in foreign prisons have to be carefully taken so that no displeasure of the host country is occasioned much less any violation of the established procedures or practices is caused. The extent to which permissible action can be taken and the manner thereof should naturally be left to the concerned Ministry and any direction in this regard by the Courts would be wholly misplaced. It is from the above perspective that the offer of the petitioner-organization in CWP No. 7778 of 2010 to visit foreign countries and to offer legal aid to the Indian nationals detained in the prisons of such countries will have to be viewed. After taking into account the stand of the Union of India in this regard that such visits may not be welcomed by many of the foreign countries we are of the view that the said request should not be entertained by us. Having dealt with the issues arising in the writ petitions in the manner indicated above, we are of the view that none of these writ petitions will call for any specific direction from the Court. On the contrary, we are of the view that all the three writ petitions should be ordered to be treated as closed in terms of our observations as noted above.