Justice Markandey Katju: What are the legal options for Seema Haider?

Justice Markandey Katju

By Justice Markandey Katju–

(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)

Indian media has been regularly highlighting the story of Seema Haider, a Pakistani woman with 4 small children, who illegally entered India to be with her lover Sachin Meena.

The Uttar Pradesh Anti Terrorist Squad (ATS), after several hours of questioning, has reportedly found that Seema Haider, who is now in Noida, UP, is not a spy.

This means she came here with her children because she is genuinely in love with Sachin, and as the great Urdu poet Mirza Ghalib said:
“Ishq par zor nahi, hai yeh woh aatish Ghalib
Ki lagaaye na lage, aur bujhaaye na bane”
“One has no power over love, it is that flame
Which neither can be lit, nor extinguished once lit”

The question is, what legal options does Seema have?

There is no doubt she entered India illegally, without a visa (she has admitted that herself). She faces two legal actions: One, a jail sentence by a court, or deportation to Pakistan.

In the first option, Section 3 of the Indian Foreigners Act makes entry into India without a visa illegal, and section 14 prescribes a maximum punishment of up to a maximum of five years. There is no minimum, which means the court need not send Seema to jail at all.

Seema’s lawyer should therefore place before the court the full facts, and pray that, in the circumstances, Seema should not be sent to jail, particularly since she has four children to take care of.

Another option is to seek pardon from the UP Governor under Article 161 of the Indian Constitution.

As regards the possibility of deportation to Pakistan, this will amount to a death sentence, since religious fanatics in Pakistan will certainly kill her as a murtid (apostate).

India has not signed the UN Refugee Convention, 1951 or its 1967 Protocol, so Seema cannot apply under that international instrument to be declared a refugee.

However, she has the right to life under Article 21 of the Indian Constitution, which uses the word ‘person’, not ‘citizen’ (which is used in Article 19). Seema may not be a citizen, but she is certainly a person, and hence entitled to the benefit of Article 21 vide National Human Rights Commission vs State of Arunachal Pradesh (1996), Louis De Raedt vs Union of India, (1991) 3 SCc 554, and State of Arunachal Pradesh vs Khudiram Chakma (1994) Supp (1) 615.

Therefore, Seema can approach the Allahabad High Court by filing a writ petition praying that she not be deported, since she will be killed in Pakistan, thus depriving her of her right to life guaranteed by Article 21.

Seema can also apply for citizenship of India in view of the 2015 amendment to the Citizenship Act, claiming she is a Hindu, and hence entitled to the benefit of that amendment.

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