Agreement between India and Pakistan

It is now a matter of history that serious riots of virulent intensity broke up in India and Pakistan in the wake of the partition of August 1947 resulting in a colossal mass exodus of Muslims from India to Pakistan and of Hindu and Sikhs from Pakistan to India. There were heart-rending tales if abduction of women and children on both sides of the border which Governments of the two Dominions could not possibly ignore or overlook. As it was not possible to deal with and control the situation by the ordinary laws the two Governments had to devise ways and means to check the evil. Accordingly, there Was a conference of the representatives of the two Dominions at Lahore in December 1947 and Special Recovery Police Escorts and Social Workers began functioning jointly in both the countries. Eventually on 11-11-l948 an Inter-Dominion Agreement between India and Pakistan was arrived at for the recovery of abducted persons on both sides of the border. To implement that agreement was promulgated on 31-1-1949 an Ordinance called the Recovery of Abducted Persons Ordinance, 1949. This Ordinance was replaced by Act 65 of 1949 which came into force on 28-12-1949. The Act was to remain in force up to 31-l0-l951 but it was eventually extended by a year. That the Act is a piece of beneficial legislation and has served a useful purpose cannot be denied, for up to 29-2-1952, 7,981 abducted persons were recovered in Pakistan and 16,168 in India. This circumstance, however, can have no bearing on the constitutionality of the Act which will have to be judged on purely legal considerations.

The Act is a short one consisting of eleven sections. It will be observed that the purpose of the Act is to implement the agreement between the two countries as recited in the first preamble. The second preamble will show that the respective Governments of the States of Punjab, Uttar Pradesh, Patiala and East Punjab States Union, Rajasthan and Delhi gave their consent to the Act being passed by the Constituent Assembly-a circumstance indicative of the fact that those Governments also felt the necessity for this kind of legislation. By S. 1 (2) the Act extends to the several States mentioned above and is to remain in force up to 31-10-1952. The expression “abducted person” is defined by S. 2 (1) (a) as meaning

“a male child under age of sixteen years or a female of whatever age who is, or immediately before 1-3-1947, was a Muslim and who, on or after that day and before 1-1-1949, has become separated from his or her family, and in the latter case includes a child born to any such female after the said date.”

Section 4 of the Act, which is important, provides that if any police officer, not below the rank of an Assistant Sub-Inspector or any other police officer specially authorised by the State Government in that behalf, has reason to believe that an abducted person resides or is to be found in any place he may, after recording the reasons for his belief, without warrant, enter and take into custody any person found therein who, in his opinion, is an abducted person, and deliver or cause such person to be delivered to the custody of the officer in charge of the nearest camp with the least possible delay. Section 6 enacts that if any question arises whether a person detained in a camp is or is not an abducted person, or whether such person should be restored to his or her relatives or handed over to any other person or conveyed out of India or allowed to leave the camp, it shall be referred to, and decided by, a tribunal constituted for the purpose by the Central Government. The section makes the decision of the tribunal final, subject, however, to the power of the Central Government to review or revise any such decision. Section 7 provides for the implementation of the decision of the tribunal by declaring that any officer or authority to whom the custody of any abducted person has been delivered shall be entitled to receive and hold the person in custody and either restore such person to his or her relatives or convey such persons out of India. Section 8 makes the detention of any abducted Person in a camp in accordance with the provisions of the Act lawful and saves it from being called in question in any Court Section 9 gives the usual statutory immunity from any suit or proceeding for anything done under the Act in good faith. Section 10 empowers the Central Government to make rules to carry out the purposes of the Act.

Ref: AIR 1953 SC 10 : (1953) SCR 254 : (1953) CriLJ SC 180