India and Pakistan Must Do More for Their Cross-Border Prisoners

The governments of both countries could take important steps, such as providing details of the detainees on a public portal with the updated status of their case, their acquittal or release and the addition of the names of new detainees.

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On July 1, India and Pakistan exchanged the list of the other country’s prisoners in their custody. This exchange – of lists containing the names of civilian prisoners and fishermen lodged in each other’s jails – has become a ritual that is being followed twice a year; on January 1 and July 1.  

It started under the Agreement on Consular Access, which was originally signed on May 21, 2008. This was done under the confidence-building approach; the ‘prisoner’s list exchange’ was added to the earlier provision – which was signed in 1988 and came into force in 1991 – to exchange information on nuclear installations between the two countries.

Prior to this agreement, there was no proper mechanism in place to inform the other side about people who are caught in one’s territory. In many instances, even families were unaware of members who crossed the borders inadvertently or stayed longer than their visas allowed and got caught. 

For any ordinary citizen of India or Pakistan, it could become a herculean task to find a missing family member, merely on the suspicion that they may have been lodged in jail on the other side.

After the consular agreement, governments started exchanging information officially about all the people who were in their custody and were believed to be citizens of the other side. This information included the date of their arrest, the charges under which they had been jailed, their consular access status and their case status. With this list exchange and the simultaneous formation of the India-Pakistan Judicial Committee on Prisoners, there was hope for a positive outcome for cross border prisoners.

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On this July 1, as per the lists exchanged between the two governments, there are 51 civilian prisoners and 558 fishermen who are, or are believed to be, Indians, in Pakistani jails and 271 civilian prisoners and 74 fishermen who are, or are believed to be, Pakistani,  in Indian jails. These may just seem like numbers, but when one digs into the data – and into the lives of these people – the tragedy seems more human. 

Data from January 1, 2021 revealed that there were 49 civilian prisoners and 270 fishermen in Pakistani jails who were, or were believed to be, Indians while there were 263 civilian prisoners and 77 fishermen from the other side. Among the 49 Indian civilian prisoners in Pakistan, 32 have already completed their sentence but have not been able to return yet. Two of these civilian prisoners are deaf and mute; their names are unknown. 

Among the 263 Pakistani civilian prisoners in India, 67 have completed their sentence but could not return to their home country. This paints a worrying picture; despite the completion of their sentences, these people are unable to return to their homes. This, in fact, is no less than a jail term and just as inhumane. Article 12(4) of the United Nations General Assembly’s ‘International Covenant on Civil and Political Rights’, which came in force on March 23, 1976, reads, “No one shall be arbitrarily deprived of the right to enter his own country.” India and Pakistan both are parties to this covenant, but it doesn’t seem to be followed.

Fishermen who are lodged in either side are not criminals; they were detained while fishing in the deep sea, where no physical boundary exists. These fishermen have often been made ‘peace doves’ when the governments released them as a sign of goodwill. These fishermen have even died and the repatriation of their bodies took months.

It is also important to note that the eight members of the Indo-Pak Judicial Committee on Prisoners – formed in 2007 for legal and humanitarian support to these prisoners and fishermen – have not been meeting since 2013. This committee, composed of retired judges, last met in India in 2013. Pakistan was supposed to organise the next meeting, but that never happened.

India had approached Pakistan in 2018 regarding the nomination of Indian members to the committee and the organisation of visits but both sides have not been able to reach a consensus yet.    

Promises have been made earlier too on the cases of cross-border prisoners, be it the Ufa declaration of 2015 or the Heart of Asia Conference in 2016. Both sides accept that the issue needs to be looked at through a humanitarian approach.

The governments of both countries could take important steps, such as providing details of the detainees on a public portal with the updated status of their case, their acquittal or release and the addition of the names of new detainees. Print and electronic media advertisements should be provided for deaf and mute prisoners whose identities cannot be confirmed. 

There should be a dedicated person who can work for nationality confirmation, NoC cases in a speedy manner so that the acquitted person can return to their home country as early as possible. Fishermen and their boats should be freed in the sea itself. The Judicial Committee on Prisoners should be revived to look into the cases for legal and humanitarian support and the fast-tracking of court hearings to keep the undertrial status as short as possible.

We believe that such provisions would be a great help for these cross-border detainees and their families, and could also strengthen bilateral relations. We hope that promises and decisions come out from the bureaucratic corridors from both sides and are implemented on ground for the purpose it has been made for.  

Jatin Desai is a journalist and peace activist who works for cross-border prisoners and is associated with PIPFPD. Ravi Nitesh is a social activist and founder of Indo-Pak Friendship initiative Aaghaz-e-Dosti.