Authored by Ishita Yadav, a student at School of Law UPES Dehradun.
Introduction
Article 21 of the Indian Constitution confers on every citizen the fundamental right to life and personal liberty. It is the heart of the fundamentals of human rights and recognizes the sanctity of human life. But this sacred feature fails to confer on the Indian fishermen. The Indian coastal fishermen find themselves in National and International headlines for being captured by Pakistani authorities for allegedly crossing international sea borders. Hundreds of families lives have been torn asunder because the men of their households went missing, women and children struggle to make ends meet with only a stray hope of their sole earning member to return. These are the men from the fishing communities who have been arrested by the Pakistan Maritime Security Agency and are put in jail. Their only crime was that they were doing their work in the waters and had inadvertently crossed the invisible line between India and Pakistan. No fair investigation and fair trial, which are concomitant to the preservation of fundamental rights[1], is done before detaining them. The primary source of their livelihood[2], their boats, are confiscated once these men are arrested. This practice is violative of the basic fundamental right of livelihood under Article 21.
Background of the Case
The Indian fishermen go deep inside the mid-sea to catch fish, primarily, they go more and more towards Pakistan, because on the Indian side due to high industrialization there is pollution which is a major issue and in polluted water, fish cannot survive. So, in search of fish, they cross the invisible line and move towards Pakistan, and in this process, sometimes they get arrested by the Pakistan Maritime Security Agency. As a result of this large number of Indian fishermen are in jail without actually committing any crime. In March alone, 231 Indian fishermen were detained by Pakistan authorities and 40 boats were seized.[3] On April 9, the PMSA had captured 42 Indian fishermen with their seven fishing boats off the Jakhau coast. This was followed by another similar incident when PMSA captured 23 fishermen on April 26. Thirty fishermen, in May, belonging to Porbandar were captured by PMSA off the Jakhau coast.[4] There is also a major concern, that if a fisherman dies in the prison of another country, it is shocking to know the dead body is returned after months. Ideally when a prisoner dies in some other country then his or her body is to send back in a minimum period. But by delaying this process the body decomposes and this practice is inhuman and violative of the right to life with human dignity.[5]
What is the Issue?
India and Pakistan frequently arrest the angular as there is no comprehensible demarcation of the maritime border and these fishermen do not have boats furnished with technology to know their exact location. Due to the prolonged and slow bureaucratic and legal processes, fishermen are usually held out in prison for several months. Poor fishermen are routinely arrested for illegal fishing. Moreover, they also complained that they were not served proper food, were made to wash clothes of Pakistani prisoners, and clean the toilets. They are also deprived of the privilege of a speedy trial and the right to free legal aid[6] spilling out of Article 21 of the Constitution.[7] Fishermen merely on being declared as convicts are being denied their fundamental rights.[8] Coastal villages often report the disappearance of fishermen and fishing boats from their village, but their whereabouts remain unclear for many years.
Development to Date
In 2008, India and Pakistan had formed a judicial committee consisting of four retired judges from each country. According to the proposal, this committee had to visit prisons of the other country especially to meet the prisoners, examine consular access, the status of their cases, delay in release and repatriation, their health condition, and so on. Both the countries also signed an agreement that if someone is arrested then his/her Consular access should be done within 90 days. There is no time limit for Nationality verification. If some Indian is arrested in Pakistan, then after his consular access there should be some time limit fixed. Also, every 1st January and 1st July both the countries should exchange a list of prisoners that are in custody. After rigorous deliberation, the committee unanimously suggested the release and repatriation of fishermen. Surprisingly, both the countries, time and again, say that the judicial committee did amazing work but never implemented any recommendation of the committees. The last meeting of the committee was held in October 2013 and since then no such meeting took place. It seems that no one is bothered about the revival of this committee.
This issue of Indian fishermen is absolutely a human issue. It needs to be seen from a human perspective, from a humanitarian angle. The issue is that the rights of these poor fishermen go unrecognized. Agreements are signed, lists are exchanged, recommendations are made by the committees but what about their implementations? Is this issue so dormant that the government, time and again, fails to cater to the needs of these people? It has been 7 years since both countries have discussed this serious issue which violates the basic fundamental rights of the fishermen. Without any investigation or due process of law, they are alleged of trespassing the borders and illegally entering the other territory. Hence, criminally accusing them is baseless and reflects a grave violation of human rights. This crisis calls for special measures and demands solidarity. Because of the absence of a physical boundary and lack of proper demarcation, the fishermen should not suffer.
References
[1] Nirmal Singh v. State of Punjab, AIR 2009 SC 984. [2] Olga Tellis v. Bombay Municipal Corporation,1985 SCC (3) 545. [3] Economic times, Pakistan captures 30 Indian fishermen off Gujarat coast, May 3,2017, economictimes.indiatimes.com/news/politics-and-nation/pakistan-captures-30-indian-fishermen-off-gujarat-coast/articleshow/58502953.cms?from=mdr. [4] Id. [5] Kartar Singh v. State of Uttar Pradesh,1981 (3) SCC 93. [6] Hussainara Khatoon v. Home Secretary, Bihar,1979 AIR 1360. [7] A.R.Antulay v. R.S.Nayak,AIR 1987 SC 1140. [8] State of M.P v. Shyamsundar Trivedi,1995 4 SCC 262.