The Supreme Court on Monday asked the Centre to clear it’s stand and gave it a final opportunity to respond to a plea against the continuous detention of a 62-year-old Pakistan national, being held in a detention centre for deportation for the last seven years, even after he spent 3 years and 6 months in jail as punishment under Section 14 of the Foreigners Act.
The bench of Justice D.Y. Chandrachud and Justice Surya Kant, which was hearing the appeal filed by his children, asked the Centre how long it wanted to confine him? The Court has given two-weeks’ time to the Centre as a final opportunity to consider the position and place a counter-affidavit on record.
During the hearing today, Additional Solicitor General K.M. Natraj sought some more time. “I need little more time as the file has been examined at the highest level. Grant me two more weeks,” he said.
Appearing for the petitioners, Senior Advocate Sanjay Parekh said,
“I have a submission that we are virtually seeking protection of the order which was passed by lordship on 13th April 2020 now virtue of that order, three years granted to the foreigners who were in detention had been reduced to 2 years, during Covid-19. So now what the government is saying making distinction that, it applies to Bangladeshis and he is a Pakistani, that kind of distinction has been made in the counter-affidavit and the letter which has been put on record. My humble submission is that if the order applies then, how can a distinction be made in violation of Article 21, somebody who is a foreign national who is in detention…”
Justice Chandrachud said, “We will give them a last opportunity of two weeks. Let them come back.”
Parekh said, “I bow down but then he is been in the detention for nearly….”
ASG Natraj replied, “I don’t think Pakistani citizen can take this contention in India.”
Justice Chandrachud asked ASG,
“How long will you keep him inside? That’s an issue. Anyway, you figure it out. You have to find out a way.”
ASG replied, “If he wants to open it on merit, we will argue definitely.”
The bench noted in its order, “KM Natraj, learned ASG, states that he will require two-weeks’ time as a final opportunity to consider the position and place a counter-affidavit on record.”
On the previous hearing, the bench of Justice Chandrachud and Justice Surya Kant had asked ASG Natraj that
“..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 seven years in the detention centre?”
ASG had 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 had expressed his opinion, “Consider to release the foreign national temporarily for a specific period of time to apply for Indian citizenship.”
According to the plea, Pakistan authorities had refused to acknowledge the detenue as a Pakistan 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 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 Authority has refused to acknowledge him as a Pakistan National.
The petitioner said her father Mohd. Qamar @ Mohd. Kamil was born in India in 1959. He went to Pakistan with his mother as a child of 7-8 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 were born out of the wedlock, including the petitioners. However, there are no documents to prove that the petitioner’s father went to Pakistan with his mother.
He did not renew his visa due to the lack of education and subsequently, got married here. He was doing manual labour 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, against Mohd. Qamar and he was prosecuted under Section 14 of the Foreigners Act on the basis of an FIR lodged at P.S. 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 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.
His 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 the Detention Centre and allow him to reside with his family in Meerut, Uttar Pradesh, to which 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 pandemic 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 the foreigner 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 didn’t get a satisfactory response.
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