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Setback for Kargil Hero Kalia's Family; Centre says it cannot move international court without Pak consent: No amendments in the UPA Affidavit

Live Law News Network
25 Aug 2015 4:19 PM GMT
Setback for Kargil Hero Kalia
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In a surprising moves Centre files UPA Govt's affidavit which it had promised to amend

This surprising act by the Modi government in the supreme court on Tuesday could be a setback for the family of Kargil hero Saurabh Kalia and five others who were tortured and killed by Pakistan as it indicated another U-turn by the Centre which had said it will approach the International Court of Justice if Supreme Court permitted.

Nearly three months after External Affairs Minister Sushma Swaraj, facing flak after BJP-led government backtracked on its assurance to approach the international court and promised that it would amend the affidavit filed in apex court by UPA government to pave way for approaching the ICJ despite hurdles posed by the Ganeva convention, the centre once again filed the same document in court. It said jurisdiction of international court cannot be invoked unilaterally and India cannot approach it without consent of Pakistan.

The affidavit however came in a case pertaining to the release of 54 Indian Defence personnel jailed in Pakistani jails—24 each of Indian Army and Air Force, one each of Indian Navy and BSF. Using the Kalia case affidavit, the Modi government was trying to drive home the point that there were several constraints in moving the ICJ on the issue but the government was taking up the issue at several levels.

“The government has taken up the issue of prisoners of war with the Pakistani government at all appropriate levels. However Pakistan has never acknowledged their presence in custody”, said the affidavit filed by Defence Ministry.

Though according to MEA sources, the affidavit in Kalia case is still being prepared, the only hope for his disraught parents is that Swaraj had said the Kargil hero’s killing may be considered as “an exceptional circumstance”.

“Till now the governments had in mind that Commonwealth countries cannot use the clause of compulsory jurisdiction against each other and India and Pakistan are commonwealth countries. That is why we followed UPA govt's affidavit. But we have rethought about it as Kalia's case is an exceptional circumstance. Government will file an affidavit before the Supreme Court to file a petition before the ICJ. We will then act accordingly," she had said. Court is hearing a petition filed by Saurabh’s father N K Kalia for a direction to the centre to approach the ICJ.

Kalia, of the 4 Jat Regiment, was the first Indian Army officer to report the incursion by the Pakistan army on Indian soil in Kargil region. He and five soldiers were tortured for weeks before being killed. Their mutilated bodies with eardrums pierced with hot rods, eyes punctured and removed, most of his teeth and bones broken, and limbs and genitals cut or chopped off—were handed over to the Indian authorities.

Geneva Convention

The Ganeva convention signed by India on September 18, 1974, specified certain categories of disputes that would be outside the purview of the international court.

Pakistan signed a similar clause in 1960.

According to the Declaration, the following categories of disputes shall be outside the purview of the ICJ under various sections:

Clause 2: disputes with the government of any state which is or has been a member of the Commonwealth of2 Nations;

Clause 4: disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence;

Clause 7: disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the court or the Government of India specially agree to jurisdiction.

To MP Rajeev Chandrashekhar’s parliament question in  January this year on whether the government proposed to take up the killing of Saurabh and five other soldiers by the Pakistan army with the United Nations Human Rights Commission, and move the ICJ to pressurise Pakistan to identify and punish all perpetrators,  Minister of state for External Affairs V K Singh had replied: “The attention of the international community has already been drawn to these heinous and barbaric acts of Pakistan army including through a statement to the UN general assembly in New York on September 22, 1999, and to the Commission of Human Rights in April 2000. The possibility of seeking legal remedies through the international courts was also 3thoroughly examined, but not found feasible.”  It was this that caused the furore.

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