The bench sought response from the Centre and the UP government and listed it for hearing on February 28
Two Meerut siblings have moved the Supreme Court seeking the release of their father, who was declared a Pakistani national by a court and has been languishing in a detention centre for seven years as Islamabad refuses to accept him as a citizen.
Mohammad Qamar, 62, 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, Qamar, a father of five, was sent to the Detention Centre at Lampur in Narela here on February 7, 2015 for deportation to Pakistan. However, the Pakistan government did not accept his deportation and he is still languishing at the detention centre.
A bench of justices DY Chandrachud and Surya Kant was told by senior advocate Sanjay Parikh that if Qamar is released on reasonable restrictions, he will apply for Indian citizenship as his wife and five children - three sons and two daughters - are all Indian citizens.
The bench said, "We have gone through the file, what can be done in this matter? Anyway, we are issuing notices to see what is happening on the issue of citizenship. Issue notice, returnable in two weeks".
It sought response from the Centre and the Uttar Pradesh government and listed it for hearing on February 28.
Parikh said that Qamar has been languishing in a detention centre for the past seven years after completing his sentence and he can be released to reside with his family.
According to his daughter and son, who have moved 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 in around 1989-1990 and got married to Shehnaaj Begum, an Indian citizen, in Meerut, Uttar Pradesh.
"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 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 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 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.
The High Court, in its order dated March 9, 2017, disposed of his plea directing that his representation be considered as per law.
Qamar's 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.
However, on getting no response to the representation, Qamar's daughter filed a representation dated September 11, 2018 before the National Human Rights Commission (NHRC) praying for a direction to the Centre and Civil Authority under the Foreigners Act, 1946 to release her father and allow him to reside with his family in Meerut with reasonable restrictions.
To the representation, a reply of Deputy Commissioner of Police, Special Branch, Delhi on December 21, 2018 before NHRC said that the matter is pending consideration with the Ministry of Home Affairs.
The plea said, 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 foreigner 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.
It said that Qamar's son moved Centre requesting to release their father in the wake of the top court's order but despite repeated phone calls, there was no satisfactory reply.
Once again, Qamar' 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 reply of the UP government which said that Qamar is divorced from his wife and therefore, there is no justifiable ground for him to live in India and his release from the detention centre is not recommended.
Thereafter, the High Court said that the petitioners should approach the Supreme Court for relief as the matter of pending release of detainees from the detention centre was before the top court.