The Supreme Court Tuesday asked the Centre for a status report on 54 defence personnel who were languishing in Pakistani jails for over 40 years as prisoners of war (PoWs).
The bench of Chief Justice R.M. Lodha, Justice Kurian Joseph and Justice Rohinton Fali Nariman also made it clear that courts had no role in bilateral relations between India and Pakistan and no accord signed between them was subject to judicial examination.
The court said it wanted to know how many defence personnel were lodged in Pakistani jails. "Many of them might have died by now," it said.
Stating that 40 years was a "pretty long" time, the court told the government it was for it to weigh the pros and cons and decide.
The position of the 54 Indian soldiers in Pakistani jails as PoWs was reiterated by the Centre in an affidavit before the Gujarat High Court in 2010.
Seeking the status of the soldiers and the efforts made to secure their release, the court said may be some of them were not alive.
Seeking a fresh affidavit from the government, the court wanted to know the latest position as it has been four years since the last affidavit was filed by the Centre on the issue before the Gujarat High Court.
The court said this during the hearing of a petition by the Centre challenging the Gujarat High Court order by which it had December 2011 asked the Centre to move the International Court of Justice (ICJ) on the breach of the Simla Agreement for not releasing Indian soldiers in Pakistan's custody.
Appearing for the Centre, counsel K. Radhakrishnan told the court there was a Simla Agreement between India and Pakistan and since both were members of the Commonwealth, thus any issue rooted in that accord between the two countries could not be raised before the ICJ.
As the Centre expressed its constraints and apprehensions, the court said: "Why do you foresee that Pakistan will not cooperate and foreclose the issue. Why don't you try?"
Telling the Centre that its approach demonstrated some kind of negativity, the court said: "All options meritorious or otherwise must be explored. Why there should be negative thought or resistance on your part? Like in the life of an individual, so in the life of a nation there are up and downs. You have your apprehension that the other side will not agree."
Dwelling on the steps taken by the government, Radhakrishnan said: "Beyond that, we can't go. We can't assume that things will happen as we desire. We can't shut our eyes to all these things (realities).
"There is no negative attitude on our side. We have an open mind. There is negative attitude on the other side. They have already disclosed their mind."
Counsel Syed Wasim Ahmed Qadri, also representing the Centre, told the court that the ICJ has already considered the entire matter and given its verdict.
"Does the issue raised concerns judicial review? The question is what is our role. (There are) many things we are concerned about. But whatever we do, the court must have a mechanism for the enforcement of an order even if it concerns fundamental rights.
"This is an issue where (PoWs) have to come from Pakistan," the court said as one of the counsel opposing the position taken by the Centre sought the court's intervention.
As Radhakrishnan said, "it is a matter of concern for the state", the court made it clear that the government could not shirk its responsibility.
"When the subject of the state are missing, then the state has to be concerned," it said.
