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Rights cover extends to foreigners, says SC

New Delhi, Aug. 4: The Supreme Court today observed that “even aliens have fundamental rights in this country” and it would, consequently, give Pakistani nationals in various prisons of Jammu and Kashmir a hearing next week.

The decision was taken after Noor Mohammad, a Pakistani prisoner in a Jammu jail, wrote that he had already served his sentence but was still languishing in prison.

A division bench of Justices Ruma Pal and P. Venkatarama Reddi rejected the Centre’s argument that “enemy aliens have no right to be released”.

The bench observed that under the country’s Constitution, fundamental rights were available even to a foreigner as long as he or she was in India. This, the judges said, was the settled law of the apex court in many cases involving fundamental rights.

The apex court appointed former attorney-general K. Parasaran amicus curiae (friend of the court) to assist it in the case.

An Amicus curiae is appointed in important cases of public interest and other cases where the court feels the need for a senior jurist’s assistance.

Along with Parasaran, Jammu and Kashmir Panthers’ Party chief Bhim Singh, who is a practising lawyer in the Supreme Court, was appointed amicus curiae.

According to the letter of Noor Mohammad, several Pakistani nationals were languishing in various jails of Jammu and Kashmir beyond the duration of their sentence and the Union of India was not releasing them.

The bench observed that those who had already served their sentences could be taken to the Wagah border and allowed to go home to the other side.

“Set them free... when they have served their sentences... take them to Wagah border and just leave them to go back to their country,” the bench said.

Additional solicitor-general Altaf Ahmad, representing the Centre, said “releasing them at Wagah border would not be easy” because despite “India’s repeated requests to the Pakistani authorities to take back their nationals, Pakistan continued to refuse to take them back”.

“At this juncture, if they are left at the border, the consequences are understandable. They would not be taken back by Pakistan and obviously they would join the forces inimical to the country,” Ahmad said.

He was explaining why the Pakistani nationals could not be sent back home so far.

He argued that the fundamental rights of Pakistani prisoners, being “enemy aliens”, became “suspended ones” as in the case of an internal emergency when fundamental rights of every citizen are suspended.

The additional solicitor-general went on to say that as the rights of the “enemy aliens” became suspended, they also lost the right to be released even after they had served the term of sentence.

The apex court said that it would hear the matter in detail and decided on August 13 for the hearing.

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