SC orders release of Pak passport-holder awaiting deportation for seven years

A bench of Justices DY Chandrachud and Hima Kohli said “facts as they stand before the court indicate that Mohd Qamar has served out his sentence” after being convicted under the Foreigners Act “and has been lodged at the detention centre awaiting deportation since February 7, 2015…”

“We are of the view that keeping the detenue Mohd Qamar in detention would not be appropriate in the facts of the present case…As there is no security threats of any nature whatsoever which has been placed on record or any adverse input for that matter bearing on national security…the detenue should be released on furnishing a personal bond of Rs 5,000 with two sureties of Indian citizens in the like amount,” said the bench.

Qamar said in his plea that he was born in India in 1959 and went to Pakistan with his mother in 1967-68 to meet relatives. But his mother died there and he remained with the relatives. He came to India on a Pakistani passport in the late eighties and married a woman from Uttar Pradesh and had five children from the wedlock. He contended that the Pakistani government was refusing to accept his nationality and sought release from detention so that he could apply for citizenship.

The court asked Qamar to furnish his permanent residential address in Meerut, where his children are said to be residing, at the respective police station and report to the local police station on the seventh day of every month pending further orders.

The court had sought the central government’s view on the plea. The government said it had sought a report from the Uttar Pradesh government on whether he could be granted a long-term visa. However, the Meerut senior superintendent of police said Qamar had divorced his Indian wife before a panchayat and that there was no justification for him to remain in the country.

The court also perused a home ministry communication dated January 14, 2019 that said he “was provided consular access twice, on 22.11.2011 and 22.1.2012, at Central Jail Delhi, yet his nationality was still being confirmed by the Pakistan government, which is essential for his repatriation/deportation to Pakistan”.

Additional Solicitor-General KM Nataraj pointed out that after the Uttar Pradesh government declined to recommend a long-term visa, the Centre had not taken any decision.

The court said seven years had elapsed since Qamar served out his sentence. “In this backdrop, we think it will be appropriate if the foreigner’s division of the Union Ministry of Home Affairs takes a final decision on the representation having regard to all the facts and circumstances of the case and after assessing the inputs from the security angle,” the bench said, adding it should be done in four months, “independent of the communication which has been addressed by the SSP Meerut”.

Senior advocate Sanjay Parikh, appearing for Qamar, said his client wanted to apply for Indian citizenship. But the bench was quick to point out that if he did so, the government might reject it and straightaway deport him. “If you do that, they will reject it and deport you. If you want to take that risk…We are following the least possible path of resistance…Better leave it at that…The government also realises that this is a hard case. Therefore they sought the recommendation of the UP government….You may be right that he was born here, went there, then came back. But fact is he came back on a Pakistani passport”.