Summary of the history of the case of the 64 members of the Mehdi Foundation International, detained in Tihar Jail, New Delhi
The Mehdi Foundation International is a multi-faith organisation of the adherents of H H Ra Gohar Shahi, who revealed his Sufi teachings in 1980. The set of beliefs he taught are considered to be heretical, and blasphemous under the blasphemy laws of Pakistan, where conviction for this ‘offence’ is punishable by a maximum sentence of death. Many believers have served long prison sentences, and charges were made against HH Ra Gohar Shahi himself from 1997 onwards. In one of these cases, he was given three sentences of life imprisonment in absentia. All outstanding charges against him were dropped after the courts were notified of a death certificate issued in respect of a similar person, though his adherents believe he has gone into ‘occultation’, having been hidden by God as the 12th Imam was in Shi’a Islam. They claim that he had predicted this event.
This note summarises the case of 62 members of the Mehdi Foundation International, detained in Tihar Jail, New Delhi, since April 23, 2007, after they staged a demonstration at Jantar Mantar, New Delhi, burning the Pakistani flag, their passports and visa papers. This number has increased to 67, with births to detainees after they were arrested. The circumstances were outlined in paras 100-104 of the report in February 2008 by the Special Rapporteur on Religious Freedom Ms Asma Jehangir A/HRC/7/10/Add.1, see attachment.
On November 17, 2007 a blasphemy case under S 295A was registered against two MFI members Sajid and Arif (FIR No. 290/2007) at Police station Mubina Town, District Karachi East, Sindh Province (See copy of English translation of FIR, attached)
On August 11, 2008 a blasphemy case 295A, PPC was registered against eight MFI members by the Khatam-e-Nabuwwat (FIR No. 281/2008, Date of Occurrence August 8, 2008), at Police Station Kotri, District Jamshoro, Sindh Province, Pakistan.
(See copy of English translation of FIR, attached)
On August 5, 2008 two MFI members (Mustaqeem and Umer) were severely beaten by extremists, but an FIR was registered against MFI members (FIR No. C/31/08, Date of Report August 6, 2008, Police Station Sharif Abad, District Karachi, Sindh Province, Pakistan) (See copy of English translation of FIR, attached)
On October 18, 2008 at 03.30 Mr Mohammad Iqbal (whose family was active in MFI) was murdered (FIR No. 995/2008, Offence u/s 302, 148, 149 PPC, Date of Report October 16, 2008 at 0500 AM, Police Station Factory Area, District Shaikhupura, Punjab Province, Pakistan) (See copy of English translation of FIR, attached).
It was reported on August 4, 2009 in the daily Safeer, that Mr Paras Masih, organiser for the Christian community of the MFI, had been murdered in Karachi.
Hatred has been incited against the MFI members in Pakistan, who are accused of blasphemy, and these incidents are examples of the result. The National Human Rights Commission (NHRC), New Delhi, wrote on September 4, 2008, to the Ministry of Home Affairs, Government, setting out the case well.
On Tuesday November 18, 2008, the prosecution authorities indicated to Judge Ajay Panday at the Patiala House Court, New Delhi, that the charges against the 62 detainees were being withdrawn, on the basis of an indication by the government that their continued stay in India was a burden on the economy [Note: the Indian Prime Minister did not reply to the attached letter].
The judge said that it would be wrong to repatriate the defendants to Pakistan, but allowed them only until Saturday to find other countries that would offer them asylum. However, lawyers acting for the detainees obtained a further order delaying execution until December 17.
On December 17, the Delhi High Court asked the government to obtain clarification from UNHCR on the process of granting asylum, before the next hearing scheduled for February 11, 2009. The UNHCR can explain what the meaning of asylum is under the UN Convention on the Status of Refugees, but India is not a signatory of the Convention. No doubt the UNHCR can also tell the government that the principle of Non-refoulement precludes states from returning a person to a place where he or she might be tortured or face persecution. This is part of international human rights law and international customary law, and applies whether or not the state concerned is a party to the Convention.
It is not clear why there is no question in law of allowing them to remain in India temporarily, even though 6 other MFI members who arrived in India at about the same time as the detainees have remained in the country ever since as asylum applicants. The war of words between India and Pakistan over the Mumbai atrocities might have been a factor in the decision; President Zardari said that suspected terrorists would not be handed over to India, so it was hoped that New Delhi might not wish to extradite this group, accused of comparatively trivial offences.
In the last three months of 2008, another three FIR’s were registered against MFI members still in Pakistan, including one charge in regard to the murder of Mr. Mohammad Iqbal, an active MFI member in Shaeikhupura, Punjab province, English translations are attached.
On December 17, 2008, the New Delhi High Court considered a motion to include the UNHCR as a party respondent to the writ petition CM No 14764/2008, notice of which was issued to the Union of India, returnable on February 11, 2009. At the hearing on February 11, the Union of India asked for another six weeks to consider the matter, which was granted. The matter was then further deferred, and was due to be heard in the High Court on May 13, 2009. It was then further deferred at the request of lawyers acting for the Indian government, to July 8, 2009. By that time the 62 individuals, including 11 children and 19 women, had been in custody for 25 months, longer than the maximum sentence that could have been imposed if they had been tried on the original charges of being present on Indian territory without valid documentation.
Originally there were 62 persons in the group, to which were added five births to women who were pregnant at the time of their arrest. Two of the detainees recently said they were willing to return to Pakistan and were released, but are not thought to have been deported as yet. A child, Waqas, was released into the custody of MFI members legally resident in India, because he was with his mother in the women’s section of the prison, and the law provides that a male child reaching the age of 8 cannot remain in a women’s prison. Of the 11 children remaining in custody, the ages are as follows:
Sara 5 Abhaya 2
Zile Gohar 4 Mary 21 months
Asad 3 Tabassum 21 months
Farah 3 Amir 21 months
Hassan 3 Abasah 21 months
The National Human Rights Commission of India considered the right of the 62 to claim asylum in India, but did not consider their prolonged arbitrary detention see attached email to Lord Avebury from Mr Kwaza A Hafz, Assistant Registrar, NHRC.
The latest position of UNHCR was given in an email from their London office to Lord Avebury of May 27, 2009, as follows:
"As you are aware, UNHCR does not have formal status in India, and it is unlikely that it can be made a party to the legal proceedings currently underway. Nevertheless, UNHCR's staff in India continue to monitor the situation, liaising with national partners, and it awaits the decision of the court in the asylum consideration of the case. Rest assured that UNHCR is doing everything possible, within limits of its status in India, to promote respect for the principle of non-refoulement."
It should be mentioned that the Indian courts have ruled that a person claiming asylum must be given an opportunity of applying to the UNHCR for a declaration of his status as a refugee, notwithstanding the fact that India is not a signatory of the Convention. The detainees have not had a visit from the UNHCR.
On July 8, 2009, the substantive hearing took place in the High Court, the Government of India having finally responded to the MFI petition on inclusion of UNHCR in court proceedings three days beforehand. The response points out several times that India is not a signatory of the Convention on the Status of Refugees, and that there is no national law dealing with asylum or refugees. It states that
‘one of the main concerns is that the practice of persons seeking asylum on grounds of religious persecution could set an undesirable precedent’.
The Government response says that there is no reference to persecution of MFI members in the reports of Amnesty International, Human Rights Watch, or the US International Religious Freedom Report, ignoring such other references as that of the UN Special Rapporteur on Religious Freedom mentioned above, or the entry in Wikipedia under ‘Blasphemy Law in Pakistan’.
At the July 8 hearing, the High Court gave the MFI eight weeks to file a response to the Government’s rejoinder, and that response was lodged on September 2. The court has now to set a date for a ‘final’ hearing, at which the court will decide whether the order of deportation should be allowed, and if not, whether the UNHCR should be included in the further proceedings. If the deportation order is revoked, the original criminal charges against the detainees of burning their passports, and the extra charges made against them later, of obtaining Indian visas by false pretences, would still have to be considered by the lower courts. Presumably they would have a right of appeal if convicted, and could apply for bail pending the court hearings.
Vice-chair, Parliamentary Human Rights Group UK
September 16, 2009
Extract from the report of the Special Rapporteur on Religious Freedom Ms Asma Jehangir, A/HRC/7/10/Add.1
Joint urgent appeal sent on 26 September 2007 with the Special Rapporteur on the question of torture
100. The Special Rapporteurs brought to the attention of the Government information they had received regarding Mr. Sabir Ali, Mr. Iqbal Shahi, Ms. Anisa Abdul Jabbar, Mr. Muhammad Allauddin Syed, Ms. Zill Gohar, Mr. Asad Gohar, Mr. Muhammad Ashfaque, Ms. Shaista Gohar, Mr. Ayoub Gohar, Mr. Muhammad Irshad, Mr. Muhammad Sajjad Babar, Ms. Shabana Gohar, Mr. Zaheer-ud-din Bukhari, Mr. Muhammad Faheem Jaffar, Ms. Rozina Faheem, Mr. Farooq Azam, Mr. Muhammad Khalid, Mr. Sarfaraz Hussain, Mr. Muhammad Fiaz, Mr. Muhammad Furqan Uddin Syed, Mr. Muhammad Yasir, Mr. Shehzaib Gohar, Ms. Gulnaz, Ms. Samreen Shahzadi, Mr. Muhammad Ikhlaq, Ms. Kulsoom Khan, Mr. Imran Saeed, Ms. Zakia Imran, Mr. Imran Pasha, Mr. Muhammad Maqsood, Mr. Irshad Ali, Ms. Rakhshanda Asim Syeda, Mr. Javaid Iqbal, Ms. Qazmi Begum, Mr. Muhammad Muzammil, Mr. Shahzad Mukhtar, Mr. Muhammad Zafar Iqbal, Mr. Mansoor Khan, Ms. Bushra Mansoor, Ms. Misbah Nisa, Ms. Ashraf Nisa, Mr. Moin-ud-din Ahmed, Ms. Noreen Shahzadi, Mr. Abdul Rashid, Ms. Maqsooda Bibi, Ms. Sana Riaz, Mr. Hassan AlGohar, Mr. Muhammad Shafi, Ms. Safia Shafi, Mr. Tanveer Younus, Mr. Asim Ilyas, Mr. Tahir Rasheed, Mr. Usman Rashid, Mr. Abdul Waheed, Ms. Sajida Waheed, Ms. Farah Naz Gohar, Mr. Waqas Ahmed Gohar, Ms. Samira Wasim, Mr. Muhammad Wasim, Mr. Aurangzeb, Ms. Qamar Parveen, Mr. Akhtar Ali Ansari, Ms. Abhaya Gohar, Ms. Mary Gohar, Mr. Amir Gohar. These 65 persons have Pakistani nationality and are currently detained in Central Jail Tihar, New Delhi, India. The three last-named persons were born during the past three months in Central Jail Tihar. Currently, a total of ten detainees are under six years of age.
101. According to the information received, the first-named 62 persons are members of the Mehdi Foundation International (MFI), a multi-faith institution utilizing mystical principles of Mr. Ra Gohar Shahi. They claim that in Pakistan MFI members are not allowed to practice their beliefs, that they were tortured there and that blasphemy cases against 250 MFI members have been initiated in Pakistan. In early 2007, they travelled from Pakistan to India intending to seek asylum. On 23 April 2007, they staged a protest demonstration at Jantar Mantar, New Delhi, at which they burnt the Pakistani flag as well as their passports and visa papers. In the absence of valid visa and other travel documents, they were arrested by the local police and sent to Central Jail Tihar.
102. Subsequently, their application for bail was denied with the reasoning that without local address it would not be possible to secure their presence during the trial once released on bail. On 22 June 2007, 31 July 2007 and 24 August 2007, three women of the group gave birth to Ms.Abhaya Gohar, Ms. Mary Gohar, Mr. Amir Gohar in detention; another detained woman is pregnant. Several other detainees suffer from severe depressions and their constant screaming and weeping frightens the children who are detained in the same ward. Their requests to the jail authorities to provide separate accommodation for the female detainees with children have been denied by the Additional Chief Metropolitan Magistrate of New Delhi on 28 May 2007.
103. The 65 above-mentioned persons are at risk of imminent forcible return to Pakistan. In view of blasphemy and treason charges they may face there, the Special Rapporteurs expressed their concern that their life and physical integrity may be at risk should they be returned to Pakistan.
104. The Special Rapporteur regrets that she has not received a reply from the Government concerning the above mentioned allegation. She would like to take the opportunity to refer to her last report to the General Assembly where she has dealt with the vulnerable situation of refugees, asylum-seekers and internally displaced persons (see A/62/280, paras. 38-63).
From Lord Avebury
October 13, 2008
Dear Prime Minister,
Please will you defer the removal of 62 Pakistani citizens who are in Tihar jail, accused of destroying their travel documents after they had crossed into India as refugees, and invite the UNHCR to interview them and report on the validity of their claim for protection. Although India is not a signatory of the Convention on the Status of refugees, it is a preemptive norm of international law that a person should not be sent back to a country where he has a well-founded fear of persecution. Pakistani Muslims consider that the views of the Mehdi Foundation International, the organisation to which these people belong, are blasphemous, and this makes them liable to criminal charges for which the penalty is death. I therefore respectfully beg you to seek advice from the UNHCR on the risks to the lives of the 62 if they are extradited, and in the meanwhile, to release them so that they have access to the fullest possible legal advice on their position.
I should add that UNHCR are already aware of this problem, boyj in Geneva and New Delhi.
H E Dr Manmohan Singh,
Republic of India
cc Shri Shivraj V Patil Minister For External Affairs Shri Parnab Mukherjee Minister For Home Affairs; Smt Pratibha Patil, President of India, Ms Carol Batchelor, UN Head of Mission New Delhi; Mr. Swaminathan, Joint Secretary External Affairs; Mr. Rajindra Babu …. Chairmain NHRC
Email to Lord Avebury from Mr Kwaza A Hafz, Assistant Registrar, National Human Rights Commission, dated May 27, 2009
With reference to your mail dated 19.5.2009 seeking information regarding the action by the NHRC on the complaint pertaining to 62 MFI detainees lodged in Tihar Jail, Delhi, I am to inform you that the Commission has already disposed of this matter incase No.1079/30/0/07-08. The directions made by the Commission are reproduced hereunder:
Commission’s directions dated 23.8.2007
"This petition has been made on behalf of 63 Pakistani nationals who had staged a protest demonstration at Jantar Mantar to seek asylum in India and were sent to Tihar Jail for burning their Pakistani passports. The petitioners pray for intervention of the Commission to save them from deportation to Pakistan. They apprehend that they would be executed under the blasphemy law as soon as they are sent to Pakistan.
The Commission sought comments from the Ministry of Home Affairs and also from the Ministry of External Affairs. The Ministry of External Affairs submitted comments and stated that the petitioners had obtained visa from the High Commission of India on the basis of fake letters of reference. It was further submitted by the Ministry that informal inquiries by the Indian High Commission did not reveal any well founded evidence to suggest persecution of the members of Mehdi Foundation International to which the petitioners belong.
The report received from the Ministry was forwarded to the representative of the petitioners. She has reiterated that repatriation to Pakistan means a certain death penalty for the petitioners. She submits that "Indian hierarchy has ignored the circumstances under which sixty two people migrated to India. The fear of death drove them to obtain Indian Visa on no-matter-how policy".
Grant of asylum is an administrative decision to be taken by the Government of India and the Commission can not possibly interfere in such matter. The Commission would, however, like to draw the attention of the Government of India to the observations made by the House of Lords in R(on the application of Limbuela) V Secretary of State for the Home Department, reported in (2007) I ALLER 951.
While construing the powers of the Secretary of State for the purpose of avoiding a breach of a person's rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, their Lordships observed as follows:-
"As soon as the asylum seeker made it clear that there was an imminent prospect that a breach of the article would occur because the conditions which he or she was having to endure were on the verge of reaching the necessary degree of severity, the Secretary of State had the power under s 55(5)(a) of the 2002 Act, and the duty under the 1998 act, to act to avoid it. The factors which would come into play in the assessment included whether the asylum seeker was male or female, or was elderly, or in poor health, the extent to which he or she had explored all avenues of assistance that might be expected to be available and the length of time that had been spent and was likely to be spent without the required means of support."
The Commission hopes that the Government of India, while considering the petitioners' request for asylum, will give due regard to the above observations made by the House of Lords. It is recommended to the Government of India that the 62 petitioners be not deported to Pakistan till an appropriate decision on their request for asylum in India is taken by the Government. It is further recommended that the petitioners will be treated in a humane manner and proper medical care and other basic necessities will be provided to them as long as they are in India."