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

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"

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.

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.