Calcutta High Court orders release of Pakistani national kept in jail despite completing sentence

The Calcutta High Court on Tuesday ordered that a Pakistani national who continued to remain in prison despite completing his three-year jail sentence, be released..The authorities had confined him to a correctional cell despite the expiry of his three-year jail sentence as Pakistan had refused to accept him as its citizen. Single-judge Justice Sabyasachi Bhattacharyya emphasised that the right to equality and the right to life and personal liberty under Articles 14 and 21 of the Constitution of India are unfettered and available to foreign nationals as well. "As such, the petitioner, having completed his sentence, cannot be retained in further custody, in any prison cell, of whatever colour, texture or dimension. 22. The petitioner no. 2 (Pakistani national) is entitled to live a life of dignity. A person denuded of dignity leads a life worse than a human being and may be a little better than an animal, which is not expected of any civilized society," the Court said..While hearing the plea for the petitioner's release, the judge orally observed that the petitioner was a common man who was booked for overstaying in India and not some terrorist like Ajmal Kasab. Even Ajmal Kasab's rights were sought to be protected, the Court added."See (Ajmal) Kasab's case, (he was given) most protection in India. All human rights groups will come for those people but not for these non-elite people. They will never be on the newspapers," the judge remarked. .The Court was hearing a petition filed by a 47-year-old Pakistani national and his Indian wife.The petitioner had come to India on a valid visa in 2001. He got married to an Indian lady and started living with her in a village in Hooghly district.He was, however, convicted in 2019 for overstaying in India and sentenced to three years in jail. While convicting him for overstaying his visa, the court had also ordered his deportation back to Pakistan.He was lodged in Tihar jail. His jail term ended in 2022.However, the Central government said that he had remained lodged in a correctional cell in West Bengal even after his prison sentence was over since the Pakistani embassy refused to recognise his Pakistani citizenship.He, therefore, moved a plea before the High Court for relief. He submitted that he wanted to spend the rest of his life with his wife and kids instead of dying in jail. .The Central government opposed his release on the ground that usually, such convicted foreign nationals are lodged in a separate correctional cell after their sentence until they can be deported back to their home country. "Milords, if he is released that would mean he would walk scot-free. If he wants to live in India he will have to apply for citizenship saying he wants to live in India as an Indian citizen," the Central government counsel submitted. .The lawyer reiterated that since Pakistan refused to accept the petitioner and since he is not an Indian national, he cannot be released from prison even if he has completed his jail term. The Court, however, was unimpressed by the government's apathetic stance. "So hang him, that would end the problem. Let him not be in the land of the living then. He is a human without having any human rights. Every human right conceivable is denuded. Either you formulate something for this status. They cannot be put in ghettos," the judge underscored. The Court also called for the Central government to enact a law to deal with this "gap" in the existing laws for foreigners who are disowned from their parent country and who continue to remain in prison even after serving their jail sentences. "You enact a law and let it be tested in the Supreme Court. Probably it will pass muster. Or let them be hanged because they don't have the right to live. If they have the right to live the essential corollary implicit in it is they will have the right to live with dignity. So either they live or die," the judge said. .The State and the Central government also contended that the petitioner was not kept in a jail as such but in a separate cell. "How is it different from other cells? Bathroom is better? Mr. counsel, a prisoner's cell is a prisoner's cell. There is nothing different in it. How can you keep a person in prison or cell despite him serving his sentence?" the judge replied..The Court proceeded to order the petitioner's release subject to certain conditions. He was asked not to leave Hooghly district without specific permission and was also directed to appear before a police officer once every month, among other conditions. .[Read Order]