The Supreme Court on Friday directed the release of a 62-year-old Pakistan national who has been languishing in a detention centre in New Delhi for more than seven years as Islamabad refused to accept him as its citizen.
A bench of Justices DY Chandrachud and Hima Kohli directed the Centre to decide on granting him a long-term visa, to enable him to apply for Indian Citizenship.
The top court said that the Centre should place its decision before the court in four months.
The bench said that Mohammad Qamar, who has been declared a foreigner by the tribunal, will be released on the bond of Rs 5000, and sureties of like amount will have to report to a police station in Meerut once every month.
The top court noted that Qamar had married a woman, who is an Indian citizen and had five children out of wedlock.
His daughter and son have filed a plea seeking his release from the detention centre.
The bench also took note that as per the Uttar Pradesh government, his wife had divorced him and now stays in Delhi with her five children.
“However, no document pertaining to the divorce has been produced before the court,” the bench said in its order.
At the outset, senior advocate Sanjay Parikh said that Qamar should be released and be united with his family as there is an apex court order in the case of Assam detention centres where detenues who have been lodged for more than two years were directed to be released.
Earlier, on March 21, the top court had asked the Centre as to how long it wished to keep him in the detention Centre as he has completed his sentence and is now lodged in a detention Centre.
It had directed additional Solicitor General KM Nataraj to seek instruction on whether Qamar can be released to enable him to apply for Indian citizenship as his five children are Indian citizens.
On Feb 28, the top court had asked the Centre to take a call on his release for a brief period to enable him to apply for Indian citizenship.
It had said that he has served his sentence of three years and six months and after that he has been lodged in a detention centre since 2015, awaiting his deportation.
Qamar 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, he was sent to the detention centre at Lampur in Narela here on February 7, 2015, for deportation to Pakistan. However, the Pakistani government did not accept his deportation and he is still languishing at the detention centre.
According to his daughter and son, who have moved to 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 around 1989-1990 and got married to Shehnaaj Begum, an Indian citizen, in Meerut.
“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 around 1967-68 and his mother died there 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 the 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.
His 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 that 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 foreign 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’s 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 the 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.