New Delhi, Aug 8 (IANS) In a blistering criticism of the Jammu and Kashmir government for keeping a Pakistani detenu in jail for long after his sentence was over, the Supreme Court Wednesday said that “liberty is a priceless right given by the God” which could not be denied by the state.
“Liberty is the priceless right given by the God to the human beings…and the state is the guardian (of the liberty) of those living under it,” said an apex court bench of Justice R.M. Lodha and Justice Anil R. Dave.
“Liberty of a person can’t be taken for a ride,” the court said, adding that in case of personal liberty the state should be above board and not act in a partisan manner.
The court also issued notice to Dilshad, the state’s additional home secretary, who had filed an affidavit on the Pakistani detenus in the state, asking her why contempt proceedings should not be initiated against her for making a false statement on oath.
Asking the official to be present at the next hearing, the apex court said: “We are pained by the stance by the state of J&K and particularly the incorrect information given by the (home) department…to say the least, the content of the affidavit are highly misleading.”
The court made the observations while directing the release of Pakistani national Sikander Azam, if he was not required in any other case. The court said he should be brought to Delhi and lodged in a Seva Sadan (shelter home).
The court was hearing a petition of Jammu and Kashmir National Panthers Party chief Bhim Singh who sought the release of Pakistani prisoners who had completed their terms but were still living in detention in Indian jails.
The court said there was “no impediment in the legal process for his (Azam) release”.
The state was “the guardian of all the citizens whether yours or from outside”, the court said.
It is not pardonable or excusable if the state failed in its role in “protecting the rights and liberty of the people”, the apex court said, adding that “God may help us and the state”.
Jammu and Kashmir’s counsel Sunil Fernandes offered an apology on behalf of Dilshad.
“You are taking away liberty that can only be taken away by God or by due process of law,” said Justice Lodha, castigating the officials’ habit of “blindly signing what is placed before them”.
“You must read it twice, thrice or even 10 times before you sign a paper to be given to the court,” the court said.
Azam was detained July 29, 2008. He was convicted June 29, 2010, in a criminal case and was awarded three years’ rigorous imprisonment and a fine of Rs.3,000. In case of default, he was asked to undergo another six months’ imprisonment.
Since the fine was paid and he was to undergo only three years’ imprisonment, Azam should have been released July 28.
The affidavit by Additional Home Secretary Dilshad said that since there was no application by Azam’s counsel for offsetting the period of pre-trial detention, the Jammu chief judicial magistrate had not passed any such order and thus his three-year sentence would be complete May 23, 2013.
Fernandes said counsel under legal aid had been provided to Azam, who would be moving an application for offsetting the detention already undergone by him during the course of the trial.
Justice Lodha said: “What are you doing as a state? You are acting as if you are showing mercy.”
The court said that by justifying the detention of Azam till 2013, the government had “thrown all the constitutional provisions…to the wind”.
The central government in its affidavit told the court that in all there were 269 foreign prisoners in Indian jails. Of them, 142 were undertrials, 75 were undergoing sentences, and in the case of 29 their nationality had to be ascertained.
The court would next hear the case Oct 16.