The Supreme Court on Friday ordered release of a Pakistan passport-holder lodged in a detention centre for over the past seven years but could not be deported as Pakistan is yet to accept his nationality. The dispute relates to Qamar who was born in India and who went to Pakistan to meet the relatives.
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
The Bench further noted that the Pakistan government is yet to confirm his nationality which is necessary for his deportation, the statement of the Ministry of Home Affairs that though Pakistan was given consular access to the detenu twice in 2019.
The Bench observed by Justice DY Chandrachud in the previous hearing observed with respect to the above case and has asked the Union Government to find a resolution to this issue that there cannot be an indefinite detention of a person.
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.
Section 2 (a) of the Foreigners Act defines “foreigner” means a person who is not a citizen of India. The Foreigners Act states that the Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.
In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed; shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed; shall not remain in India or in any prescribed areas therein; He shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal; He shall remove himself to, and remain in, such area in India as may be prescribed;
He shall comply with such conditions as may be prescribed or specified—
(i) requiring him to reside in a particular place;
(ii) imposing any restrictions on his movements;
(iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;
(iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;
(v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;
(vi) prohibiting him from association with persons of a prescribed or specified description;
(vii) prohibiting him from engaging in activities of a prescribed or specified description;
(viii) prohibiting him from using or possessing prescribed or specified articles;
(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;
Foreigners with 10-year tourist/business visas are permitted to visit India as long as their total stay in India during each visit and does not exceed 180 days. Foreigners of Indian descent have a five-year multiple-entry ‘X’ visa with the recommendation that “continuous stay shall not exceed 180 days during each visit. The Foreigners Act, 1946 is an Imperial Legislative Assembly Act passed to allow the Interim Government of India some authority in areas about foreigners in India. The Act got passed before India gained independence.
Under Indian law Section 3 of the IPC applies to any Indian citizen or foreigner governed by Indian law. The offence must be committed outside of India’s territorial waters, either geographical or maritime.
Hon’ble Mr Justice-D.Y. Chandrachud
Judge Supreme Court of India
Hon’ble Ms. Justice Hima Kohli
Judge Supreme Court of India
