New Delhi: The Supreme Court Monday asked the Centre to make its stand clear on the status of a Pakistani national who has been languishing in a detention centre for seven years as Islamabad refuses to accept him as its citizen, saying how long can you keep a person inside?
A bench of Justices D Y Chandrachud and Surya Kant asked Additional Solicitor General K M Nataraj to seek instruction whether 62-year-old Mohammad Qamar can be released for a brief period to enable him to apply for Indian citizenship as his five-children are Indian citizens.
Nataraj said, This is a peculiar case. I need to take instruction. We are not bound by what Pakistan is saying. A person convicted under the Foreigners Act has to be kept in a detention centre. He cannot be allowed to go out. This is the statutory requirement .
The bench said, Question is that he has served his sentence of 3 years and six months. Now after serving his sentence, he has been lodged in a detention centre since 2015, awaiting his deportation. At the time, when Pakistan has refused to accept him as its citizen, how long can you keep a person inside?
It said that Qamar has said that he wishes to apply for Indian citizenship as his children are all Indian citizens.
You please take instructions, whether he can be released for a brief period, so that he can apply for Indian citizenship. Granting citizenship is your call, we are not going to interfere with that , the bench said, and posted the matter for further hearing after three weeks.
Senior advocate Sanjay Parikh, appearing for Qamar’s children, who have sought their father’s release from the detention centre, pointed to an order of the top court by which it had directed the Centre to release detenues in the detention centres of Assam who had been lodged for more than two years in view of the pandemic.
Earlier, this month the top court had sought Centre’s reply on the plea filed by Qamar’s children.
Mohammad Qamar, 62, was arrested on August 8, 2011 from Meerut, Uttar Pradesh, and was held guilty by a court here for overstaying his visa. He was sentenced to three years and six months in jail and a fine of Rs 500.
Having completed his sentence on February 6, 2015, Qamar, was sent to the detention centre at Lampur in Narela here on February 7, 2015 for deportation to Pakistan. However, the Pakistan government did not accept his deportation and he is still languishing at the detention centre.
According to his daughter and son, who have moved the top court through advocate Srishti Agnihotri, their father Qamar alias Mohammad Kamil was born in India in 1959.
He (Qamar) had gone with his mother from India to Pakistan as a child of around 7-8 years in 1967-1968 on a visa to meet his relatives there. However, his mother died there, and he remained in Pakistan in the care of his relatives , the plea of habeas corpus filed in the top court said.
It said that Qamar, on attaining adulthood, came back to India on a Pakistani passport in around 1989-1990 and got married to Shehnaaj Begum, an Indian citizen, in Meerut, Uttar Pradesh.
Out of this wedlock, five children were born , the plea said, adding that Qamar has no documentary proof to show that he had gone with his mother to Pakistan in around 1967-68 and his mother died there and therefore, his story has not been believed.
Nevertheless, the undisputed fact is that he came to India around 1989-90 on a passport of Pakistan and did not renew his visa due to lack of education and, subsequently, got married here, it said.
In Meerut, he was doing menial jobs and residing there along with his family, who all have Aadhaar cards issued by UIDAI, the plea said.
Initially, Qamar filed a plea before the Delhi High Court in 2017, praying for his release so that he can stay with his family.
During arguments, his counsel had submitted that Qamar would apply for Indian citizenship in accordance with law and also make a representation to the respective authorities giving particulars of all the family members who would stand security in case he is released from the detention centre.
The High Court, in its order dated March 9, 2017, disposed of his plea directing that his representation be considered as per law.
Qamar’s son, as per the order of the High Court, made a representation to civil authority on August 11, 2017, under the provisions of the Foreigners Act to allow his father to reside with his family and take proper steps for registering him as an Indian citizen and also for getting proper medical treatment for his illness.
The plea said, meanwhile, with the onset of the COVID-19 pandemic, the top court on April 13, 2020 passed an order in the suo motu petition where it directed the Centre to release foreigner detainees who have been under detention for two years or more on certain terms on furnishing a bond in the sum of Rs. 5,000 with two sureties of the like sum of Indian citizens.
Once again, Qamar’ children moved the High Court seeking relief on the grounds of orders of the top court, where the Centre submitted that it was prepared to take a humanitarian approach for releasing the father of the petitioners, but Uttar Pradesh was not willing to do the same.
It had put on record UP government’s reply which said that Qamar is divorced and therefore, there is no justifiable ground for him to live in India and his release from the detention centre is not recommended.
Thereafter, the High Court said that the petitioners should approach the top court for relief.
