The Telegraph
Saturday , December 15 , 2012
Since 1st March, 1999
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SC sounds out Centre on soldiers’ torture


New Delhi, Dec. 14: The Supreme Court today sought the Centre’s response on a petition seeking a directive to the government to drag Pakistan to the International Court of Justice for torturing to death Captain Saurabh Kalia and six fellow soldiers during the Kargil war.

A bench of Justices R.M. Lodha and A.R. Dave initially expressed reservations on issuing the notice but relented after counsel Arvind Sharma persisted with his plea, arguing that the Centre had failed to take necessary steps despite repeated requests.

“We fully share your agony. In fact we share it much more than you. But the question is, can the court direct the Union of India to take the matter to the International Court of Justice?” asked Justice Lodha, heading the bench.

The petition was filed by N.K. Kalia, father of Captain Saurabh Kalia who was among seven soldiers captured and killed by the Pakistan army early during the 1999 war. They were on patrol duty and were the first to send inputs on the largescale intrusions, it said.

The soldiers were tortured brutally, in violation of the Geneva convention that bans inhuman treatment of prisoners of war, before they were shot, the petition said. Their teeth were broken, their eyes gouged out, their bodies burnt with cigarettes and their bones broken.

The counsel submitted that the parents had made innumerable efforts to have the matter taken up with the ICJ, and had approached the court after the authorities failed to respond.

But the bench said: “The question has wider ramifications. Before any order is passed by this court, there must be clarity as to whether the court is competent to issue such a directive. We have to see what is the extent of the courts’ power.

“We don’t want to exceed our power and go beyond the Constitution. We have to first determine the powers of the court to issue such a direction. The matter relates to two countries and international convention.”

However, the counsel said the court does have the power to issue a directive because the defence ministry said the matter was pending with the PMO, which in turn said it was being considered by the ministry of external affairs, leading to an unending delay.

The court then issued notice to the home and external affairs ministries, asking them to respond in 10 weeks.