62-Year Old In Detention Centre For 7 Years As Pakistan Refused Deportation : Supreme Court Seeks Centre's Views On Allowing Him To Seek Indian Citizenship
The Court noted that the all children of the man are Indian citizens.
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In a case where a 62-year old man adjudged as a "foreigner" has been lodged in a detention centre for over 7 years (as he could not be deported to Pakistan after the country refused to acknowledge him as its national) and is now desirous of procuring Indian citizenship, the Supreme Court on Monday asked ASG K. M. Nataraj to seek instructions on whether he can be released temporarily to apply...
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In a case where a 62-year old man adjudged as a "foreigner" has been lodged in a detention centre for over 7 years (as he could not be deported to Pakistan after the country refused to acknowledge him as its national) and is now desirous of procuring Indian citizenship, the Supreme Court on Monday asked ASG K. M. Nataraj to seek instructions on whether he can be released temporarily to apply for the same.
At the outset, Justice D. Y. Chandrachud put to Additional Solicitor General K. M. Nataraj, for the Centre, "He has served out his sentence after conviction under the Foreigners Act. He has undergone 3 years and 6 months, and he has been in the detention centre from February 7, 2015. He was awaiting deportation but the Pakistan government is not willing to accept him. His children are all born here. He now wants to apply for Indian citizenship. Perhaps he can be allowed bail for initiating the formalities for applying for Indian citizenship?"
The ASG replied, "I have to get instructions. But section 3(2)(e) of the Foreigners' Act says that once he has been declared a 'foreigner', he is not entitled for further relief, he has to be placed in one particular place, he can't be allowed to go out."
Justice Chandrachud observed, "But he has been awaiting deportation for the last seven years. What will the government otherwise do with him?"
"Just because Pakistan says something, that is not binding on us. A competent court has already declared him a 'foreigner'", replied the ASG.
Justice Chandrachud noted, "You are absolutely right. In fact, when you apply for Indian citizenship, you are admitting that you are a foreign national. Because he moved the Delhi High Court and made a statement before the Delhi High Court in a writ (a habeas corpus plea was moved before the High Court praying for his release and to allow him to stay with his family, where his counsel submitted that he would apply for Indian citizenship in accordance with law). The moment he says he is going to apply for Indian citizenship, he admits that he is a foreign national. Maybe of country A, B or C"
"The point of the matter is really that how long are you going to keep him? For seven years, you are holding him in a detention Centre", continued the judge.
"We have to work it out. This is some kind of a very unusual situation. Now that Pakistan does not accept him does not mean that it is binding on us. But we will work it out and I will come back with instructions", responded the ASG.
Justice Surya Kant reflected, "We are not saying that because Pakistan is not accepting him, so it is a compulsion for you. Suppose he is released temporarily for a specified period, he will be able to apply for Indian citizenship. Then you might be able to consider that. The final decision will be taken by you- you may accept, you may reject. You might accept it also because his children are all Indian citizens, you don't know..."
Justice Chandrachud added, "He has five children and all of them are Indian citizens..."
Then the bench posted the matter after 3 weeks, recording that the ASG has sought a short adjournment to enable him to seek instructions.
In issuing notice on the petition on February 11, the Court had recorded, "Mr Sanjay Parikh, learned senior counsel appearing on behalf of the petitioners submits that:
(i) The father of the petitioners has completed his sentence of three years and six months' imprisonment following his conviction for an offence under the Foreigners Act;
(ii) The father of the petitioners has been lodged at a Detention centre awaiting deportation since 7 February 2015;
(iii) According to the petitioners, the Pakistan government is not willing to accept their father; and
(iv) The father of the petitioners seeks to apply for Indian citizenship in terms of the earlier order passed by the High Court, but he is unable to process the formalities since he is in the Detention centre for nearly seven years"
Details of the petition
The present Petition has been filed under Article 32 of the Constitution of India through Advocate Srishti Agnihotri seeking a Writ of Habeas Corpus, Mandamus or any other appropriate writ directing the Respondents to:
i. To produce Mohd. Qamar @ Mohd. Kamil, father of the Petitioners from the Detention Centre in Lampur, Narela, Delhi where he is being kept unlawfully and produce him in this Hon'ble Court;
ii. To release Mohd. Qamar @ Mohd. Kamil on furnishing a bond of Rs. 5,000 with two sureties of like sum by Indian citizens and allow him to reside with his family in Meerut subject to reasonable restrictions and conditions;
iii. Any other relief which this Hon'ble Court may deem fit and proper may also be granted.
It is submitted that father of the Petitioners, Mohd. Qamar @ Mohd. Kamil has been declared a foreigner (Pakistani citizen) and was convicted under section 14 of the Foreigners Act, 1946 by Chief Judicial Magistrate Meerut, Uttar Pradesh vide judgment dated 02.09.2014. He was sentenced to imprisonment for 3 years and 6 months and a fine of Rs. 500 and has duly served this sentence.
The detenue, Mohd. Qamar @ Mohd. Kamil was sent to Detention Centre thereafter, on 07.02.2015 at Lampur, Narela in Delhi after completing his sentence of 3 years and 6 months for the purpose of deporting him to Pakistan. He is lodged in the said Detention Centre for about 7 years as the Pakistan Authority has refused to acknowledge him as a Pakistani National.
The Petitioner has approached the Supreme Court pointing out that it had vide its order dated 13.04.2020 in I.A. No. 48215 of 2020 and I.A. No. 48216 of 2020 in the Suo Moto W.P. (C) 1 of 2020 titled In Re: Contagion of Covid 19 Virus in India directed the release of detenues who were declared foreigners by Tribunals in Assam and who had served long period of detention in the Detention Centres awaiting their deportation and who had completed more than two years in the Detention Centres subject to conditions:
Brief background of the case (as extracted from the petition)-
It is submitted that Mohd. Qamar @ Mohd. Kamil was born in India in year 1959. He had gone with his mother from India to Pakistan as a child of around 7-8 years old in 1967-1968 on a Visa visit to meet his relatives. However, his mother died there, and he remained in Pakistan in care of his relatives. When he attained adulthood, he came to India on a Passport of Pakistan in around 1989-1990. Here he married one Shehnaaj Begum, an Indian citizen, in Meerut, Uttar Pradesh. Out of this wedlock, five children were born, including the petitioners.
However, Mohd. Qamar @ Mohd. Kamil 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 the lack of education and subsequently, got married here. He was doing the job of a laborer on 'Khairat' machines and other menial jobs and continued to reside in Meerut, Uttar Pradesh along with his family.
That the family of Mohd. Qamar has been residing in Meerut, Uttar Pradesh and his wife i.e. Shehnaaj Begum has been issued Aadhar Card by the UIDAI, Government of India. In addition, his two sons and three daughters were also born in India and are of Meerut, Uttar Pradesh and citizens of India.
Mohd. Qamar, father of the Petitioners was arrested on 08.08.2011 on a complaint at Khair Nagar, Meerut, Uttar Pradesh. As mentioned above, he was prosecuted under section 14 of Foreigners Act on the basis of an FIR No. 250 of 2011, P.S. Delhi Gate, Meerut. The principal allegation was that Mohd. Qamar was residing in India after expiry of his Visa. He was convicted in the Criminal Matter 1410 of 2012 on 02.09.2014 and sentenced for simple imprisonment of 3 years and 6 months and a fine of Rs. 500/-.
He completed his sentence on 06.02.2015 and was sent to Detention Centre at Lampur, Narela, Delhi on 07.02.2015 for deporting him to Pakistan. However, the Government of Pakistan did not accept his deportation to Pakistan and he is still languishing at the Detention Centre for the last 7 years.
Case Title: Ana Parveen & Anr. v. UOI & Ors.
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