The Supreme Court has adjourned the hearing in a plea filed by the children of a 62-year-old man, who is a Pakistan national and is held in a detention centre for deportation for the last seven years after he spent 3 years and 6 months in jail as a punishment under Section 14 Foreigners Act.
K.M. Natraj, Additional Solicitor General, urged that as the matter is listed for the first time, he needs to seek instructions as it is a very unusual case. “Under section 3(2)(e) of Foreigners Act, once after he is declared as a foreigner, he has to be placed in a particular place, this is the statutory provision. He can’t be allowed to go out.”
The bench of Dr Justice D.Y. Chandrachud and Justice Surya Kant asked ADG Natraj: “He is awaiting deportation since last seven years. Now, what is the government otherwise have to do with him? He accepts that he is a foreign national as he applied for Indian citizenship, he made a statement in the Delhi High Court. I’ll say foreign national from country A, B, C… the point of the matter is how long are you going to keep him, you are holding him for 7 years in the detention centre?”
ASG replied, “Just because Pakistan says something that does not mean it is binding on us. The already competent court has declared him a foreigner. I’ll get instructions and, therefore, seek adjournment”
Justice Surya Kant expressed his opinion that the foreign national be released temporarily for a specific period of time to apply for Indian citizenship.
Senior Advocate Sanjay Parekh appeared for the petitioners. According to the plea, Pakistan authorities had already refused to acknowledge detenue as a Pakistani national. The man, Mohd. Qamar @ Mohd. Kamil, was sentenced to imprisonment for 3 years and 6 months and a fine of Rs 500 by Chief Judicial Magistrate, Meerut, Uttar Pradesh in 2014. After completing the sentence, he was sent to a detention centre for the purpose of deporting him to Pakistan. He is lodged in the said detention centre for about 7 years as the Pakistan has refused to acknowledge him as their national.
The petitioner said her father Mohd. Qamar @ Mohd. Kamil was born in India in 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 to meet his relatives. After his mother died, he remained in Pakistan with his relatives and when he attained adulthood, he came to India in 1989-1990. He married the mother of the petitioner Shehnaaj Begum, an Indian citizen and five children born out of wedlock including the petitioners. However, there are no documents to prove that the petitioner’s father went to Pakistan with the mother.
He did not renew his visa due to the lack of education and subsequently, got married here. He was doing the job of a labourer on ‘Khairat’ machines and other menial jobs and continued to reside in Meerut, Uttar Pradesh along with his family. Thus, the wife and the children hold Aadhaar Card issued by the UIDAI, Government of India.
In 2011, a complaint was made at Khair Nagar, Meerut, Uttar Pradesh against Mohd. Qamar and he was prosecuted under Section 14 of the Foreigners Act on the basis of an FIR lodged at PS Delhi Gate, Meerut. The principal allegation was that he was residing in India after the expiry of his visa. Therefore, he was convicted.
After completing the sentence, Mohd. Qamar filed a Habeas Corpus petition before the Delhi High Court praying for his release and to allow him to stay with his family. He also submitted to 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 petitioners did not receive any response to the representation.
The daughter, one of the petitioners, also wrote a representation to National Human Rights Commission praying for a direction to the Central Government and Civil Authority under the Foreigners Act, 1946 to release her father from detention and allow him to reside with his family in Meerut, Uttar Pradesh. To this, the Deputy Commissioner of Police, Special Branch, Delhi filed a response stating that the application is under consideration with the Ministry of Home Affairs, New Delhi.
Meanwhile, the Covid-19 outbreak started and the petitioners came to know about Suo-Motu, In Re: Contagion of Covid 19 Virus in India, whereby the Court has directed the authorities to release foreign detainees who have been under detention for two years or more on certain terms as mentioned in the said order on furnishing a bond in the sum of Rs 5,000 with two sureties of the like sum of Indian citizens. The petitioner filed representations to the Secretary (Foreigners) to the Government requesting them to release their father, but no satisfactory response was received.
The matter is to be heard further after three weeks.
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