The legislature is spring cleaning, throwing out wonky old laws and making space for the new. Or maybe it’s just going for the governmental minimalism so in vogue now.

The Repealing and Amending (Fourth) Bill, 2015, lists 295 old laws that are headed towards the bin. The list could have been a potted history of Indian government since the mid-19th century, starting with the Excise (Spirits) Act, 1863 (which provided for the levy of excise duty on spirits used exclusively in arts and manufactures or in chemistry) and making its way to the Representation of the People (Amendment and Validation) Act, 2013 (which allowed those in jail to contest polls).

The laws change as the preoccupations of government change. Colonial concerns about laying an administrative grid on uncharted territory fade into the taxation and pension laws of a more solidified dispensation. These make way for legislation to manage displaced populations during the post-Partition years. Which in turn give way to the fussy regulation of a new republic, the business of shaping nascent industries and formulating new codes of political behaviour, and then to the compulsive legislating of a government under fire. Bits of our history we have no more use for, because we have newer models of the same law or because the legislation no longer speaks to the present.

Still, in the process of uncluttering the past, at least the past that exists on the statute books, have we dusted off some of the present? One of the laws the Law Commission recommends we junk is the Exchange of Prisoners Act, 1948, which has apparently been subsumed by the Consular Access Agreement, signed by India and Pakistan in 2008.

An image of trains

In the torrent of people that rushed across the new borders in 1947, some got left behind. Those in mental asylums, whom Saadat Hasan Manto wrote about in Toba Tek Singh, in prose half mad with sorrow. And those in prisons, to whom freedom must have been an adventure that happened elsewhere. Some of these prisoners suddenly found themselves on the wrong side of the border. But not much is heard about them. Most were the flotsam and jetsam of society anyway. Far more pressing tragedies were occurring to people outside the prison walls.

The text that does remember them is the Exchange of Prisoners Act, passed by India in September 1948, turning an ordinance announced six months earlier into law. On the other side of the border, the Pakistan (Exchange of Prisoners) Ordinance came into being in March 1948. Both ordinances were passed after an agreement between the two countries. They differ in some particulars, but in their concerns and intent, the documents are mirror images of each other, an official record of how both countries were going through the same experiences of partition.

They provide for the exchange of “transferable prisoners” lodged in either country’s jails. Pakistan’s ordinance defines them as “any Hindu including any member of a Scheduled Caste, or any Sikh who is in custody in any prison in Pakistan under lawful orders of a duly empowered Court or other authority and who is willing to be transferred” to India. The Indian law deals with Muslim prisoners “willing to be transferred under the provisions of the Act” and applies to those taken into custody “on or before August 1st”. They detail the modalities of the transfer and the treatment of prisoners so exchanged.

Transferable prisoners were concentrated in designated jails. In the north, the railway prison vans of East and West Punjab, now on either sides of the border, were pooled to transfer the prisoners. East Punjab, having lost several central and big district jails to the partition, faced an acute shortage of space for prisoners. Temporary facilities to receive non-Muslim prisoners were set up in Jalandhar and Ferozepur. Muslim prisoners to be sent to Pakistan were housed in Hissar Camp Jail.

Two large-scale exchanges took place, in April and in November/October 1948. According to Anupama Roy, 4,084 non-Muslims made their way back to India under the agreement and 3,783 Muslims were transferred to Pakistan. How many transferable prisoners were left out of this number, how many perished because they were trapped in jails on the wrong side, is difficult to ascertain now. They were forgotten in the first fury of Partition. But the two governments did eventually extend the rights of citizenship to people behind bars and put in place a system for their release. That longer forgetting would take place in years to come.

The vanishing trick

Cut to 2015, and Prime Ministers Narendra Modi and Nawaz Sharif met at Ufa, Russia, and agreed to release the fishermen in each other’s custody. On Sunday, Pakistan set free 163 fishermen, including an 11-year-old boy. They travelled from Landhi and Malir jails in Karachi to Lahore and then Wagah, where they were handed over with gifts and goodwill.

It was not always so. As tensions between India and Pakistan sharpened after the wars of 1965 and 1971, people lost to the other side’s jails were often not seen for decades. Some of these were spies, casualties of a hole and corner war between the two countries, largely abandoned by their governments the moment they were caught.

There was Kashmir Singh, who spent 35 years in Pakistani prisons on charges of espionage that could not be proved. And the famous case of Sarabjit Singh, sentenced to death by a Pakistani court in 1991, battered to death in a Pakistani prison in 2013. It triggered the killing of Sanaullah Haq, a Pakistani convict in a Jammu jail.

As the border heated up, those who had strayed across were locked up. A large number were fishermen, who had failed to see borders drawn in water, at the disputed Sir Creek in the Rann of Kutch and in the territorial waters off the coast of Gujarat. Some were consigned to jail for years without trial, others were trapped even after serving their sentences, because they didn’t have the papers to prove their identity and take them home.

Traces of 1948

The institutional indifference lifted to an extent after 2008, when the two countries signed a consular access agreement under which they would swap lists of prisoners every six months. An India-Pakistan Judicial Committee on Prisoners was also set up to meet and tour jails on both sides.

But gaps remain. Consular access is granted to prisoners within 90 days of arrest, says Jatin Desai of the Pakistan-India People’s Forum for Democracy, yet there is no time limit for the process of verification. As for the judicial committee, it hasn’t met once since the National Democratic Alliance came to power last year, he says. In India, the committee is allowed access to three jails, Tihar, Amritsar and Jaipur, yet prisoners are scattered all over.

What’s more, exchanging lists cannot guarantee release. Over the last few years, prisoners have usually been freed in grand political gestures from either side – in the aftermath of a bilateral meet, as an Eid or New Year bonus. But freedom should not be subject to the magnanimity of politicians.

Desai suggests a more comprehensive agreement, maybe including a consensus not to arrest fishermen who have strayed. They could be pushed back into the territorial waters of their country, or be allowed to operate in a demarcated fishing zone, since the catch is better in Pakistani waters. The Indian government could pay royalties for these facilities. A regular system should be put in place to ensure prisoners are released in time and through a clearly defined process.

The contingencies of 1948 are gone, but the violent birth of the two countries has created sullen neighbours. As Roy points out, the contexts of Partition haunt many state decisions on citizenship. In several cases, these have worked to disempower people, such as the enclave dwellers on the Indo-Bangladesh border who were invisible to both states for years. The prisoner exchange act, which suggests citizenship is based on religion, has its own problems today. But its concern for repatriating prisoners under a proper mechanism could be a blueprint for future agreements.

When the laws governing these times are obsolete, let it not be found that we lived under governments that policed borders at the cost of individual rights.