Mother moves Kerala High Court for repatriation of daughter who left India for Afghanistan to join ISIS

The mother of one Nimisha, who had left India for Afghanistan to join ISIS, has approached the Kerala High Court seeking repatriation of Nimisha and her four-year-old daughter, Ummu Kulusu (Bindu k Vs. Union of India and ors.). .The petition has been filed on the ground that the government is duty bound by the Constitution of India and International Treaties to ensure right to life of citizens, which also encompasses the right to fair trial and the right to education..The petitioner has sought directions to be issued to Ministries of Home Affairs and External Affairs to take expeditious steps to bring back, from the Islamic Republic of Afghanistan, Nimisha and Ummu. Both are citizens of India from Kerala, it is pointed out. .In a statement to Bar & Bench, the petitioner's counsel stated that the petitioner has been facing threats and abuse in her home state. Fearing the escalation of such threats, she approached lawyers practicing in Delhi, Advocates Sunil J Mathews and Amit Kumar, a Supreme Court lawyer and a retired army Colonel respectively, to take up her case. The case has been taken up pro-bono. .The petitioner alleges that despite her best efforts to prevent it, Nimisha was systematically radicalised by the ISIS when she was at a particularly vulnerable stage and persuaded to move to Afghanistan by her husband. Thereafter her husband fought for the Islamic State, allegedly without her knowledge, and was killed in combat. .After several news reports broke that Nimisha and 20 others had travelled from India to Afghanistan to join ISIS, the petitioner contacted the Kerala State Police and the National Investigation Agency (NIA). These authorities took cognisance of the matter and registered FIRs. .Along with documents proving the registration of the FIRs and orders issued by the Ministry of Home Affairs on the matter, it is also submitted that an Interpol Red Corner Notice was issued for Nimisha..Since there is also ratified Bilateral treaty between Afghanistan and India, it is contended that the respondents, in line with the Interpol notice, is duty bound to take necessary steps to extradite of Nimisha and her daughter. .It is submitted that upon failing to receive aid from the relevant authorities, the petitioner addressed a letter to the Prime Minister and received a response from the Ministry of Home Affairs stating that there was no information of Nimisha travelling to Afghanistan..The primary contention in the petition is based on this alleged disparity in responses from the authorities and the lack of due diligence on their part. .The fact that the NIA first registered a case against Nimisha is also stated to have been evidenced by the Report of the Unlawful Activities (Prevention) Tribunal dated 11/05/2017 on the Islamic Research Foundation. .It is averred that the contradictory response from the Ministry in this regard shows that the respondents have taken a lackadaisical approach to this case which involves the rights and well-being of Indian Citizens..It is further submitted that while petitioner persisted in her efforts to receive aid from the respondents, by 2019, when the Islamic State fell, the widowed women and children, including Nimisha and Ummu Kulusu were moved to Pul-e-Charkhi Prison, a maximum security detention facility in Afghanistan. .It is further alleged that the Afghanistan government was prepared to deport Nimisha and other Indian detainees but the Indian Government reportedly refused to take back its citizens..It is, therefore, submitted that the respondents have not taken all the necessary measures to uphold the fundamental rights of Nimisha and her minor daughter, particularly the right to life under Article 21.It is highlighted that in several judgements of the Supreme Court, it was held that has the right to life under Article 21 of the Indian Constitution includes the right to fair trial. Therefore, the petitioner contends that the authorities must ensure Nimisha's repatriation to India, where she can be subject to a free and fair trial for the myriad of charges levelled against her..Furthermore, as per Section 3 of the Indian Penal Code and Section 188 of the Code of Criminal Procedure, Indian Law permits the trial and prosecution of Indian citizens for crimes committed outside the country as well, it is noted..The petitioner goes on to submit that she is not seeking the repatriation of her daughter so that she can be set free, but rather so that she be returned to her country where the due process of law can take course. .However, the petitioner adds that Nimisha's minor child must be rehabilitated and integrated into society by placing her with the petitioner, her next of kin, under the supervision of relevant human and child rights organisations..In this regard, the petitioner felt it right to draw attention to the right to education, which has been recognised as a fundamental right , guaranteed under Article 21A. .It is also pointed out that the respondents are bound by the International Conventions, Treaties and Declarations including, Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and Convention on the Rights of the Child (CRC) which have been signed and ratified by the Republic of India..According to these Conventions and the Constitution, it is submitted that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child must be a primary consideration..It is also cautioned int the petition that by abandoning Indian citizens, the respondents might create an environment where radicalised elements may leave the country with little to no fear of repercussions. Therefore, it is suggested that since the families of the remaining women and children are not forthcoming, the Court may take suo motu cognisance of the matter..On these and other grounds, the petitioner has prayed for the repatriation of her daughter, the rehabilitation of her granddaughter among other reliefs.