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PETITIONER: IZHAR AHMAD KHAN

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 16/02/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR 1052            1962 SCR  Supl. (3) 235  CITATOR INFO :  F          1962 SC1778  (5,6)  R          1963 SC 645  (13)  F          1965 SC 810  (9)  R          1965 SC1623  (7)  RF         1966 SC 693  (27)  R          1969 SC1234  (5,8)  R          1971 SC1382  (9,11,12)  R          1974 SC  28  (1)  RF         1975 SC1069  (25)  RF         1986 SC1099  (15)

ACT: Citizenship,   Termination   of-Determination   by   Central Government-Rule  making obtaining of passport  from  another countery   conclusive   evidence-Validity-Citizenship   Act, 1955(57  of  1955), s. 9(2)-Citizenship  Rules,  1956,  Sch. III, r 3.

HEADNOTE: The  petitioners  claiming to be Indian Citizens  sought  to enforce  their fundamental rights under Art. 19 (1)  (e)  of the  Constitution.   The crucial question was  whether  they were  citizens of India.  While the petitions  were  pending the  Government of India tinder s. 9(2) of  the  citizenship Act, 1955 determined that they had voluntarily acquired  the citizenship of Pakistan by the application of r. 3 of’  Sch. III  of the Citizenship Rules, 1956, framed by  the  Central Government  under  s.  18  of the Act.   Section  9  of  the Citizenship Act, 1955, provides as follows:- "(1)  Any  citizen of India who by  naturalisation,  regist- ration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950, and the commencement of this Act   voluntarily  acquired,  the  citizenship  of   another country,  shall, upon such acquisition or, as the  case  may be, such commencement, cease to be a citizen of India                      ...................... (2)  If any question arises as to whether,, when or how  any person  has acquired the citizenship of another  country  it shall be determined by such authority, in such manner, and

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236 having  regard  to  such  rules  of  evidence,  as  may   be prescribed in this behalf." Rule  30 of the Rules which made the Central Government  the authority  for  the purpose of s.9(2) provided  that  for  a determination  under  that section  the  Central  Government should have due regard to the rules of evidence specified in Sch.  III of the Rules. Rule 3 of the said schedule was as follows. "The fact that a citizen of India has obtained on any date a passport  from the Government of any other country shall  be conclusive  proof  of his having  voluntarily  acquired  the citizenship of the country before that date." After  such  determination  by the  Central  Government  the petitioners  challenged the constitutional validity of s.  9 (2)  of the Citizenship Act, 1955, as also of r. 3  of  Sch. III  of the Citizenship Rules, 1956.  Their . case was  that (1)  r.  3  of  Sch.  III of the Rules was  not  a  rule  of evidence  but a rule of substantive law and as such  outside the purview of the delegated authority conferred by s. 9 (2) as  also  the general rule making power under s. 18  of  the Act,  and  that (2) s. 9 (2) itself was ultra  vires  as  it affected   the  status  of  citizenship  and  deprived   the petitioners  of their fundamental rights under Art.  19  (1) (e) of the Constitution. Held,  (per Gajendragadkar, Wanchoo and Ayyangar, JJ.)  that the contentions raised by the petitioners must fail. It  was  not  correct to say that r. 3 of  Sch  III  of  the Citizenship  Rules,  1956, which made it obligatory  on  the authority  to infer the acquisition of  foreign  citizenship from the fact of obtaining a passport from a foreign country was not a rule of evidence but a rule of substantive law. Like   the  rule  of  rebuttable  presumption,   which   was undoubtedly  a  rule  of  evidence.   The  function  of   an irrebuttable presumption was also to help the judicial  mind in appreciating the existence of facts with this  difference that  while the former was open to rebuttal, the latter  was placed   beyond   rebuttal.   So  considered   a   rule   of irrebuttable  presumption could not be said to fall  outside the law of evidence. D.   B. Heiner v. John.  H. Donnan, (I 932) 76 Law Ed.  772, referred to. That  such a rule might in some cases lead to  hardship  and injustice  was not a relevant consideration in  judging  its constitutional validity. The real test whether a rule of irrebuttable presumption was one of evidence was inherent relevancy, If the fact from 237 the proof of which the presumption was required to be  drawn was  inherently relevant in proving it, the rule was one  of evidence, no matter whether the presumption prescribed was a rebuttable or irrebuttable. There  could  be  no doubt that  a  passport  obtained  from Pakistan  was  relevant  in  deciding  whether  or  not  the citizenship  of Pakistan had been voluntarily  acquired  and any argument to the contrary would be clearly erroneous. B.   v.  Brailsford,  (1905)  2 K. B. 730  and  Joyce  Case, 11946] A. C. 347, referred to. Domingo Urteliqwi v. John N.D arcy, Henry Didier and Domingo D’  Arble (1835) 9 Law.  Ed. 690 and In re COHN, (1945)  Ch. D. 5, held inapplicable. It  was clear that under the law of Pakistan only a  citizen of  that country could apply for and obtain  passport.   The impugned rule, therefore, was not a rule of substantive  law and  was within the purview of s. 9 (2) of  the  Citizenship

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Act and its validity could not be challenged. The  expression  rules  of evidence’ in s.  9  (2)  must  be construed  in  the light of its legislature  history.   Ever since   the  passing  of  the  Evidence  Act  a   conclusive presumption  has been a part of the law of  evidence.It  was well  settled that the scope power to legislate on a  topic, had  to  be  determined  by the  denotation  of  that  topic obtaining in legislative practice. Croft.  v. Dunphy, 1933 A.C. 156 and The  Central  Provinces and  Berar Act, No. XIV of 1938, (1939) F.C.R. 18,  referred to. Status of citizenship was not a fundamental right under  the Constitution and the Parliament had clearly the power  under Art.   II  of  the Constitution to  regulate  the  right  of citizenship  by law.  The challenge to s. 9(2) of  the  Act, therefore,  on  the  ground  that  enabled  the  rule-making authority  to  deprive the petitioners of their  rights,  of citizenship could not be sustained. The  scheme of the Act and principles it enunciated  clearly showed  that  the Legislature in enacting s.  9(2)  had  not abdicated  its essential legislative function in  favour  of the  rule  making  authority.   There  would  be  no   doubt therefore that the section was valid. Per Sarkar and Das Gupta, JJ.-Whether a particular rule  was one  of substantive law or of evidence had to be  judged  by what it sought to do.  Did it create or extinguish or modify a  right  or  liability or its sole  concern  was  with  the adjective 238 function of reaching a conclusion as to what had taken place under the substantive law ? If the first, it would be a rule of  substantive  law,  otherwise  it  would  be  a  rule  of evidence.   If a rule, purporting to be one of evidence,  in effect  said  what  must be the right or  liability  on  the happening  of a paricular fact. it went beyond the scope  of the   law  of  evidence  and  trenched  on  the  domain   of substantive law. A rule of conclusive presumption made with a view to  affect a specified substantive right was a rule of substantive  law and  did not cease to be so because it was rested on a  fact which was relevant to it.  The test was not one of relevancy but   whether  it  was  intended  to  affect   a   specified substantive right or provide a method of proof. So judged, when obtaining of a passport from another country was  made  conclusive  proof of  voluntarily  acquiring  the citizenship  of that country, in the context of s. 9 of  the Act, a substantive right was directly affected and the  rule could  not obviously be one of evidence and must be  one  of substantive   law.   It  might  so  happen  that  when   one voluntarily acquired the passport of a country he might  not have to acquire the citizenship of that country. Mohd.   Khan  v. Govt. of Andhra Pradesh, A.I.R.  1957  And. Pra.  1047  and Sharafat Ali Khan v. State of  U.P.,  A.I.R. 1960 All, 637, approved Mohomed  Usman  v. State of Madras A.I.R. 1961 Mad  129  and Ghaural Hasan, v. State of Rajasthan, A.I.R. 1958 Raj.  173, disapproved. In view of Art, 11 of the Constitution it was not correct to say that the right of citizenship was a fundamental right or that  the  power  conferred by s. 9(2) of  the  Act  was  an unguided  power.  That sub-section gave enough  guidance  to the General Government to frame rules of evidence. The  question whether the petitioners had  acquired  foreign nationality must, therefore be determined by the  Government leaving  r. 3 of Sch.  III of the Citizenship  Rules,  1956,

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out of account.

JUDGMENT: ORIGINAL, JURISDICTION : Petitions Nos. 101 and 136 of  1959 and 88 of 1961. Petitions  Under  Art. 32 of the Constitution of  India  for enforcement of Fundamental Rights. The  Judgment of Gajendragadkar, Wanchoo and Ayyangar,  JJ., was delivered by Gajendragadkar, J. 239 The Judgment of Sarkar and Das Gupta, JJ., was delivered  by Das Gupta, J. GAJENDRAGADKAR,  J.-These three Writ Petitions are filed  by the  three  respective  petitioners under  Art.  32  of  the Constitution for the enforcement of their fundamental  right under Article 19(1) (e).  They were heard separately but  it would be convenient to deal with them by one common judgment because they raise for our decision the same  constitutional questions.    In  all  the  petitions,  the   constitutional validity of section 9(2) of the Citizen ship Act, 1955, (Act LVII of 1955) (hereinafter called the Act) and of rule 3  in Schedule III of the Citizenship Rules, 1956, is  challenged. It would also be convenient to set out briefly at the outset material facts on which the three petitions are based. Izhar Ahmad Khan, the petitioner in Writ Petition No. 101 of 1959, claims to be a citizen of India and was a resident  of Bhopal.  He war, enrolled as a voter in the Parliamentary as well  as State Legislative Assembly Electoral Roll.  On  the 20th August, 1952, he was, taken into custody by the  police from  the restaurant which he used to run at Bhopal and  was told that he had been arrested under an order from the  then Bhopal  Government  under  section  7  of  the  Influx  from Pakistan  (Central) Act.  He was then removed by  train  the very next day and left at the Pakistan border and was  asked to  go  to Pakistan despite his protests.   Thereafter,  his elder  brother, lqbal Ahmad moved the Court of  the  Judical Commissioner, Bhopal, under Art.226 of the Constitution  for the  issue  of a writ in the nature of  Habeas  Corpus.   In February, 1953, the learned Judicial Commissioner pronounced his judgment in the said writ petition.  He found in  favour of  the  petitioner  that he was born in  India  and  was  a citizen  of India.  Even on the question of  migration,  the Judicial Commissioner made a 240 finding  in  his  favour.  He, however,  observed  that  the petitioner  was  in Pakistan in May and June, 1952,  and  be came  to  the conclusion that since he had  contravened  the provisions  of  section  3  of  the  Influx  from   Pakistan (Central)  Act, he was liable to be removed physically  from India under section 7 of the said Act. Having   gone  to  Pakistan  much  against  his  will,   the petitioner tried to obtain the help of the High Commissioner of India for returning of India but he failed and so he  had to sign an application form in order to secure a passport to come to India.  With the passport thus obtained he came back to India on the 13th August, 1953.  Soon after his return to India,   he  applied  for  permission  to  stay   in   India permanently  and his visa for stay in India was  accordingly extended from time-to time pending the final decision of his application   for  leave  to  stay  in  India   permanently. Meanwhile,  on  the 15th February, 1954, section  7  of  the Influx Act was declared void by this Court.  In consequence, the petitioner began to press his application for  permanent

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settlement in India and a long term visa was granted to  him by  the  Government  of India pending the  decision  of  his application.   Thereafter,  the Act was passed in  1955  and under  advice, the petitioner applied for registration as  a citizen.   The said application was, however,  rejected  and his  application for leave to stay in India permanently  met with the same fate.  The petitioner was then directed by the District  Superintendent of Police, Bhopal, to  leave  India within  seven  days by an order dated the 16th  June,  1959, served  on  the  petitioner.  This order  was  passed  under section  3(2)(p) of the Foreigners Act, 1946 (No.   XXXI  of 1946).   It was against this order that the petitioner  came to  this  Court by his present writ petition on  August  13, 1959.   in  the  petition  orginally  filed  by   him,   the petitioner’s contention was that he was not a 241 foreigner  within the meaning of the Foreigners Act  and  he challenged  the validity of the relevant operative  sections of the said Act. After -notice was served on the Union of India, the State of Madhya  Pradesh and the District Superintendent  of  Police, Bhopal,  who were impleaded as respondents 1, 2 & 3  to  the petition,  the matter came on for hearing before this  Court on  January 22, 1960.  After hearing counsel for some  time, the  Court delivered an interlocutory judgment in  which  it pointed  out  that the crucial question which  falls  to  be considered in the writ petition is whether the petitioner is a  citizen  of India or not.  This question can  be  decided only  under section 9(2) of the Act.  Therefore, this  Court observed  that an enquiry should be made by  an  appropriate authority  in  that  behalf and the result  of  the  enquiry intimated to this Court as early as possible.  On receipt of the  result of the enquiry by this Court, the petition  will be   listed   for  final  hearing.   Meanwhile.,   stay   of deportation of the petitioner was continued. In  accordance with this interlocutory judgment, an  enquiry was held under s.9(2) after serving a notice about the  said enquiry on the petitioner On Saptember 11, 1961, the Central Government  recorded its conclusion that the petitioner  had voluntarily  acquired  the  citizenship  of  Pakistan  after January 26, 1950; and before July 29, 1953.  This conclusion was reached substantially by the application of the impugned R. No. ’3. After  the  enquiry  had  thus  terminated  and  its  result communicated  to  this  Court, the  petitioner  applied  for permission  to  take  additional  grounds  and  amongst  the grounds  which  he  thus  wanted  to  raise.  are  the,  two questions which we have already indicated.  That. in  brief, is the background of facts in Petition No. 101 of 1959. Syed  Abrarul Hassan, the petitioner in petition No. 136  of 1959, claims to be a citizen of India 212 and was a resident of Bhopal.  In 1951, his family  received the  news from Pakistan that his elder brother  Syed  Hassan was  seriously  ill.  That is why the  petitioner  with  his mother  and younger sisters and one younger brother went  to Pakistan.  Thereafter, the petitioner stayed there for  some years.  Then they tried to come back to India and with  that object  applied for a Pakistan passport to travel  to  India and  after  the passport was thus obtained, he  returned  to India  in May, 1954, After he came to India, he  applied  to the  Government  of India for permission to settle  down  in India  permanently and pending the said application, he  was granted  long  term visas.  In 1959, however,  the  District Superintendent  of  Police, Bhopal, served an order  on  him

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directing him to leave India by the 22nd August, 1959.  This order  was  issued under section 3(2)(c) of  the  Foreigners Act.  Like petition No. 101 of 1959, this petition also  was originally filed to challenge the validity of the said order and to impugn the validity of the relevant provisions of the Foreigners Action the ground that the petitioner was, not  a foreigner  and  that the relevant provisions  could  not  be invoked against him. Subsequently,  this petition as well as Petition No. 101  of 1959  were  heard  together on January, 22,  1960,  and  the course  of events in this petition’ was similar to  that  in the earlier petition.  The result was that after an  enquiry was  held under s. 9(2) of the Act and the  petitioner  -was informed  that the Central Government had come to  the  con- clusion  that  the petitioner had voluntarily  acquired  the citizenship  of Pakistan after January 26,1950,  and  before November  20, 1952, he applied for leave to take  additional grounds, including the two grounds to which we have  already referred.   Thus, the material facts in these two  petitions are substantially similar, 243 Habib  Hidayatullah,  the petitioner in petition No.  88  of 1961, claims to be a citizen of India and complains that his fundamental  rights  under Art. 19 of the  Constitution  are being  infringed because he is about to be deported  out  of India on the ground that he has acquired the citizenship  of Pakistan.  It appears that the petitioner sailed from Bombay for  Basra (Iraq) in April, 1950 and stayed there for  three years in connection with business.  Then he accompanied  his brother  to  Karachi in May, 1963, for  his  treatment.   On arrival  at Karachi, the Pakistan authorities took away  his Indian  travel  documents.   Then he  tried  to  obtain  the assistance of Indian High Commission for returning to  India but  failed and so he applied for and obtained  a  Pakistani passport  on  December  14,  1957.   According  to  him,  he obtained  his passport with a view to return to  India.   On returning  to India with this passport, the petitioner  made several  representations to the Indian authorities  for  his recognition  as a citizen of India and even tried to  obtain registration  as  such.   His  efforts  in  that  direction, however,  failed and so he stood the risk of being  deported from  India.  That is how the petitioner filed  the  present petition on February 20, 1961.  By his petition, he  claimed a  direction against the respondents the Union of India  and the  State of Maharashtra restraining them from  taking  any steps to deport him from India. While  admitting the petition, this, Court passed  an  order stating that it would be open to the petitioner to move  the Government tinder section 9(2) of the Citizenship Act or the Government  to  act  suo motu in  that  behalf.   After  the petition   was  thus  admitted,  the   respondents   entered appearance and opposed grant of stay on the ground that  the petitioner had ceased to be a citizen of India.  The Govern- ment of India then took action under section 9(2) of the Act and  has held that the petitioner has  voluntarily  acquired the citizenship of Pakistan after 244 26th  January, 1950, and before the 14th  December,    1957. After this order was communicated to the petitioner, he took additional  grounds  and amongst them, are  the  two  points which   have  been  already    indicated.   It  is  in   the background   of  these  respective  facts  that  the   three petitioners  resist  their  deportation from  India  on  the grounds  that  section 9(2) of the, Act is ultra  vires  and that Rule 3 in Schedule III of the Citizenship Rules,  1956,

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is also constitutionally invalid. Before  dealing  with the points thus raised  by  the  three petitions,  it  would  be useful to refer  briefly  to  the, relevant constitution and statutory provisions.  Part If  of the  Constitution, consisting of Arts. 5 to II,  deals  with citizenship.  Article 5 provides that every person specified in  cl.  (a),  (b)  and (e) shall be  a  citizen  of  India. Article 6 lays down that notwithstanding anything  contained in  Art.  5, a person who has migrated to the  territory  of India  from the territory now included in Pakistan shall  be deemed  to be a citizen of India at the commencement of  the Constitution if he Satisfies the tests prescribed by clauses (a) and (b).  Under Art. 7, a person who has after the first day of March, 1947, migrated from the territory of India  to the  territory now included in Pakistan shall not be  deemed to be a citizen of India, notwithstanding anything contained in Arts. 5 and 6. This Article is subject to the proviso  to which  it  is unnecessary to refer.  Art. 8 deals  with  the rights  of  citizenship of a person who or either  of  whose parents  or any of whose grandparents were born in India  as defined  in  the  Government of India  Act,  1935,  and  who ordinarily  resides  in  any country  outside  India  as  so defined.   The  next three articles are important.   Art.  9 provides  that  no  person shall be a citizen  of  India  by virtue  of Art. 5, or be deemed to be a citizen of India  by virtue  of Art. 6 or Art. 8, if he has voluntarily  acquired the citizenship of any foreign State.  In                             245 other   words,   if  prior  to  the  commencement   of   the constitution,   a  person  had  voluntarily   acquired   the citizenship  of  any Foreign State, he is  not  entitled  to claim the citizenship of India by virtue of Art. 5 or Art. 6 or  Art.  8.  This  article  thus  deals  with  cases  where citizenship  of  a  foreign State had been  acquired  by  an Indian   citizen   prior   to  the   commencement   of   the Constitution.  Article 10 guarantees the continuance of  the rights of citizenship and provides that every person who  is or  s  deemed  to be a citizen of India  under  any  of  the foregoing  provisions of Part II shall continue to  be  such citizen;  but  this guarantee is subject  to  the  important condition that it would be governed by the provisions of any law that may be made by Parliament.  The Proviso  introduced by  Art. 10, therefore, makes it clear that any law made  by Parliament  may  affect  the continuance of  the  rights  of citizenship subject to its terms.  That takes us to Art.  11 which  empowers  the  Parliament to regulate  the  right  of citizenship  by  law.   It  provides  that  nothing  in  the foregoing  provisions  of Part II shall  derogate  from  the power  of Parliament to make any provision with  respect  to the acquisition and termination of citizenship and all other matters  relating to citizenship.  It would thus be  noticed that  while making provisions for recognising the  right  of citizenship  in the individuals as indicated by the  respec- tive articles, and while guaranteeing the continuance of the said rights of citizenship as specified by Art. 10, Art.  11 confers  and recognises the power of the Parliament to  make any provision with respect to not only acquisition but  also the  termination  of  citizenship as  well  as  all  matters relating to citizenship.  Thus, it would be open to the par- liament  to  affect  the  rights  of  citizenship  and   the provisions made by the Parliamentary statute in that  behalf cannot be impeached on the ground that they are inconsistent with  the provisions contained in Art. 5 to 10 of  Part  II. In this connection, 246

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it  is  important to bear in mind that Art. 11  has     been included  in  Part  II in order to make it  clear  that  the sovereign  right of the Parliament to deal with  citizenship and  all questions connected with    it is not  impaired  by the rest of the provisions of the said Part’ Therefore,  the sovereign  legislative competence of the Parliament to  deal with the topic of citizenship which is a part of Entry 17 in List I of the Seventh Schedule is very wide and not fettered by  the  provisions of Articles 5 to 10 of Part  II  of  the Constitution.  This aspect of the matter may have  relevance in  dealing  with the contention raised by  the  petitioners that  their  rights  under Article 19 are  affected  by  the impugned provisions of section 9(2) of the Act. In exercise of its legislative authority conferred by  Entry 17 and in the pursuance of the provisions of the Art. 11  of Part II, the Parliament passed the Act which came into force on  December, 30, 1955.  As its preamble shows, it has  been passed to provide for the acquisition and termination of the Indian citizenship.  Acquisition of citizenship is  provided for  by  ss.  3 to 7. Section 3 deals  with  acquisition  of citizenship by birth, section 4 with acquisition by descent, s. 5 with acquisition by registration, s.6 with  acquisition by naturalisation and s. 7 with acquisition by incorporation of   territory.   Having  dealt  with  the  acquisition   of citizenship   by   these  five  sections,   termination   of citizenship  is  dealt with by as. 8, 9 and 10.   Section  8 deals  with  renunciation  of citizenship,  s.  9  with  the termination  of citizenship and s. 10 with its  deprivation. We are concerned with s. 9 which deals with the  termination of citizenship.  This section provides :               "(1)  Any  citizen  of India  who  by  natura-               lisation,     registration    or     otherwise               voluntarily  acquires,  or  has  at  any  time               between   the  26th  January,  1950  and   the               commencement of this                247               Act  voluntarily acquired, the citizenship  of               another country, shall, upon such  acquisition               or,  as  the case may be,  such  commencement,               cease to be a citizen of India :               Provided  that  nothing  in  this  sub-section               shall apply to a citizen of India who,  during               any war in which India may be engaged,  volun-               tarily  acquires  the citizenship  of  another               country,  until the Central Government  other-               wise directs.               (2)   If  any question arises as  to  whether,               when  or  how  any  person  has  acquired  the               citizenship  of another country, it  shall  be               determined  by such authority, in such  manner               and-having regard to such rules of evidence as               may be prescribed in this behalf." There is no ambiguity about the effect of this section.   It is clear that the voluntary acquisition by an Indian citizen of  the  citizenship  of  another  country  terminates   his citizenship   of   India,  provided   the   said   voluntary acquisition  has taken place between the 26th January,  1950 and the commencement of the Act, or takes place  thereafter. It   would  thus  be  seen  that  whereas  Art.  9  of   the Constitution dealt with the acquisition of citizenship of  a foreign   State   which  had  taken  place  prior   to   the commencement of the Constitution, s. 9 of the Act deals with acquisition   of  foreign  citizenship  subsequent  to   the commencement  of the Constitution.  There is, therefore,  no doubt  that the Constitution does not favour plural or  dual

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citizenship and just as in regard to the period prior to the Constitution,  Art. 9 prevents a person who had  voluntarily acquired  the citizenship of foreign country  from  claiming the  status  of  an Indian citizen, so does  s.9(1)  make  a similar provision in regard to the period subsequent to  the commencement’ of the Constitution.  Section 9 provides  that the  acquisition  of foreign citizenship can be  the  result either of naturalisation or registration or any other method 248 of  voluntarily  acquiring such citizenship.   Just  as  the citizenship  of India can be acquired by  naturalisation  or registration,  or registration, so can the citizenship of  a foregin country be, similarly acquired by naturalisation  or registration.   If it is shown that the person has  acquired foreign    citizenship   either   by    naturalisation    or registration,  there can be no doubt that he ceases to be  a citizen  of India in consequence of such  naturalisation  or registration.   These  two classes  of  foreign  citizenship present  no  difficulty. It is only in regard  to  the  last category  of  cases where foreign  citizenship  is  acquired otherwise  than  by  naturalisation  or  registration   that difficulty  may arise.  But the position in respect  of  the last category of cases is also not in doubt and that is that if  it  is  shown  that  by  some  other  procedure  foreign citizenship   has   been   voluntarily   acquired.    Indian citizenship,  immediately comes to an end.  The  proviso  to sub-section  (1)  need  not detain us  because  we  are  not concerned with the cases falling under that proviso. That  takes us to sub cl. (2) of s.9. This -clause  provides that  if  any question arises as to the  acquisition  by  an Indian   citizen  of  foreign  citizenship,  it   shall   be determined  by  such authority, in such manner,  and  having regard  to  such rules of evidence as may be  prescribed  in this  behalf.   In other words if any dispute arises  as  to whether foreign citizenship has been acquired voluntarily by an  Indian citizen, or if it has been so acquired,  when  or how the power to decide this question has been delegated  to the   authority  as  may  be  prescribed  in  that   behalf. Likewise, the manner in which the enquiry should be held and the  rules subject to which the enquiry should be held  have also  to be prescribed in that behalf.  The result  of  this sub-section  is that rules are to be framed prescribing  the authority  by which the said questions should be tried,  the manner  in  which  they should be tried  and  the  rules  of evidence subject to which they should be tried. 249 Section  18 (1) provides that the said power to  make  rules may  be exercised to carry out the purposes of the Act,  and sub-section  (2)  provides that in  particular  and  without prejudice  to  the generality of the  foregoing  power,  the rules may provide for the topics covered by cls. (a) to  (k) of  the  said  sub-section.  Section  18(3)  authorises  the Central  Government  to provide that a breach  of  any  rule shall  be  punishable  with fine which  may  extend  to  one thousand  rupees  and s, 18(4) requires that all  the  rules made  under the said section shall, as soon as may be  after they are made, be laid for not less than 14 days before both Houses   of  Parliament  and  shall  be  subject   to   such modifications  as Parliament may make during the session  in which they are so laid.  This rule is intended to enable the Parliament  to exercise control over the rules made  by  the Central Government in pursuance of its delegated authority. In  1956, the Central Government purported to make Rules  in exercise  of the powers conferred upon it by section  18  of the  Act.   We are concerned with Rule, 30  in  the  present

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case.  It prescribes the authority to determine  acquisition of  citizenship of another country. 30(1) provides  that  if any  question arises as to whether, when or how  any  person has  acquired  the  citizenship  of  another  country,   the authority,  to  determine  such  question  shall,  for   the purposes  of s. 9(2), be the Central  Government.   Sub-rule (2)   provides   that  the  Central  Government   shall   in determining  any such question have due regard to the  rules of evidence specified in Schedule Ill. That takes us to Schedule III which prescribes the rules  of evidence under which the enquiry under section 9(2) would be held.   Under Rule I, it is provided that if it  appears  to the   Central  Government  that  a  citizen  of  India   has voluntarily  acquired the citizenship of any other  country, it may require proof 250 within  the specified time that he has not so  acquired  the citizenship of that country, and the burden of proving  this shall  be upon him.  Under r. 2, the Central  Government  is empowered  to make a reference in respect of  any  question, which it has to decide in the enquiry, to its Embassy in the country  concerned or to the Government of the said  country and  it  authorises  the Central Government to  act  on  any report   or  information  received  in  pursuance  of   such reference.   Then  follows  r. 3 the validity  of  which  is challenged before us.  This rule reads thus               "The fact that a citizen of India has obtained               on any date a passport from the Government  of               any other country shall be conclusive proof of               his    having   voluntarily    acquired    the               citizenship of the country before that date. To  the rest of the rules it is unnecessary to  refer.   The scope  and  effect of r. 3 are absolutely clear.  If  it  is shown that a citizen of India has obtained a passport from a foreign  Government  on  any  date, then  under  rule  3  an inference  has  to  be  drawn that  by  obtaining  the  said passport he has voluntarily acquired the citizenship of that country  before the date of the passport.  In  other  words, the proof of the fact that a passport from a foreign country has been obtained on a certain date, conclusively determines the  other  fact that before that date, he  has  voluntarily acquired  the  citizenship of that  country.   The  question which   arises  for  decision  is  whether  this   rule   is constitutionally  valid and if it is, whether s. 9(2)  under which the power to hold the enquiry subject to the  relevant rules,  has  been  delegated to the  Central  Government  is itself constitutionally valid. We will first deal with the challenge to the validity of  r. 3.  The  principal ground on which the validity of r.  3  is challenged is that whereas s. 9(2)                             251 authorises  the  Central Government to  prescribe  rules  of evidence  subject  to which the relevant enquiry  should  be held,  what  the Central Government has purported to  do  in framing-rule  3 is to prescribe a rule of  substantive  law. The  argument  is  that  when s. 9(2)  refers  to  rules  of evidence, it refers obviously to rules of evidence, properly so-called and since the impugned rule is in substance, not a rule  of  evidence  but a rule of  substantive  law,  it  is outside the purview of the delegated authority conferred  by s. 9(2) and as such, is invalid.  It is true that s. 18  (1) confers  on  the Central Government power to make  rules  to carry  out  the purposes of the said Act, but  this  general power  to  make rules will not taken within  its  scope  the power  to  make  a rule of substantive law  and  so  if  the

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impugned  rule  is  a rule of substantive  law  and  if  the expression  "rules of evidence" in s. 9(2) does not  include such  a rule, then clearly the challenge to the validity  of the rule will have to be upheld. In appreciating the merits of this argument it is  essential to bear in mind the genesis of the, Law of Evidence and  the function which its enactment is intended to discharge.   The division of law into two broad categories of substantive law and  procedural law is well-known.  Broadly stated,  whereas substantive  law  defines and provides for  rights,  duties, liabilities,  it  is the function of the procedural  law  to deal  with the application of substantive law to  particular cases and it goes without saying that the law of Evidence is apart  of  the law of procedure.  The law  of  the  evidence deals  with the question as to what facts may, and what  may not,  be  proved, what sort of evidence may or  may  not  be given  and by whom and in what manner such evidence  may  or may not be given.  Consistently, with the broad functions of the law of evidence, the Indian Evidence Act also deals with the topics that usually fall within the purview of such law. It  prescribes the rules of relevance, it provides  for  the exclusion 252 of  some  evidence, as for instance,  exclusion  of  hearsay evidence or of parole evidence in some cases ; it deals with onus  of  proof,  with the  competence  of  witnesses,  with documentary  evidence and its proof, with  presumptions  and with estoppel.  "Evidence", observes Best (1) "has been well defined  as  any matter of fact, the  effect,  tendency,  or design  of  which is to produce in the  mind  a  persuasion, affirmative or disaffirmative of the existence of some other matter  of fact." Judicial evidence with which the  Evidence Act  deals  is  a  species of  the  genus  "evidence",  and, according  to Best, is for the most part nothing  more  than natural  evidence,  restrained  or  modified  by  rules   of positive law.  The statutory provisions contained in the Law of  Evidence  may be said to be based on the  doctrine  that that system of law is best which leaves least to the Judges’ discretion.   That is why -,the laws of every  well-governed State  have  established rules regulating the  quality,  and occasionally the quantity, of the evidence necessary to form the  basis  of judicial decision." It is in its  attempt  to regulate  the  production  of and proof  by  evidence  in  a judicial enquiry that the rules of evidence refer to certain presumptions  either rebuttable or irrebuttable.   The  term "’presumption"   in  its  largest  and  most   comprehensive signification, may be defined to bean inference, affirmative or  disaffirmative of the truth or falsehood of  a  doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.  Thus, according to Best, when the rules of evidence provide for the  raising of a rebuttable or irrebuttable presumption, they are merely attempting  to  assist the judicial mind in  the  matter  of weighing the probative or persuasive force of certain  facts proved in relation to other facts presumed or inferred.  The whole  scheme of the Evidence Act is thus intended to  serve the objective of regulating the proof of facts by (1)  The  Principles of the Law of Evidence Twelfth  Edition Pages 6. 23, 25 and 267. 253 subjecting   the  production  of  evidence  to   the   rules prescribed  in  that  behalf.  It is in the  light  of  this function and objective of the Evidence Act that the argument of the petitioners has to be judged. It  has  been  strenuously urged before  us  that  when  the

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impugned rule makes it obligatory on the enquiring authority to  infer the acquisition of citizenship of foreign  country from the fact that the passport of foreign country has  been obtained  by an Indian citizen, it is really, Dot a rule  of evidence  properly  so called but is a part of the  rule  of substantive   law   in  relation  to  the   acquisition   or termination  of citizenship.  In support of  this  argument, opinions  of  jurists have been pressed  into  service.   We must,  therefore,  briefly refer to the  said  opinions  and decide  whether  they lead to the conclusion for  which  the petitioners   contend.    Holdsworth  observes   that   "the difficulty  of proving the facts needed to  establish  legal liability under the older modes of trial, the slow growth of our  modern mode of trial, the same difficulties even  under our  modern procedure, and sometimes the wish to  modify  an inconvenient  law,  have all at different periods  led  both legislators and courts to’ adopt the expedient of  inventing a  presumption  of law which is some  times  rebuttable  and sometimes  irrebuttable.  These rebuttable  presumptions  of law  no doubt belong primarily to those particular  branches of  the substantive law with which they are  concerned;  but they  are all connected with that part of the adjective  law which is concerned with evidence; for they direct the  court to  deduce particular inferences from particular facts  till the  contrary is proved.  Irrebuttable presumptions of  law, on the other hand belong at the present day more properly to the  substantive  law  than to the  law  of  evidence  (1)." Holdsworth then draws a, distinction between estoppel  which is a rule of (2) Holdsworth on ’A History of English Law’ 192 6 Vol.  IX, Pages 143-144. 254 evidence  and  irrebuttable presumption  by  observing  that "while  an irrebuttable presumption is in effect a  rule  of substantive law, to the effect that when certain facts exist a particular inference shall be drawn an estoppel is a  rule of  evidence  that  when,  as  between  two  parties  to   a litigation, certain facts are proved, no evidence to  combat those facts can be received." Thus, according to Holdsworth, irrebuttable presumptions are always a matter of substantive law, not so rebuttable presumptions, and estoppel is a  rule of evidence and not a rule of substantive law. Wigmore  expresses the same opinion, about the character  of irrebuttable  presumptions, for he says that "wherever  from one fact another is said to be conclusively presumed, in the sense that the opponent is absolutely precluded from showing by  any  evidence that the second fact does not  exist,  the rule is really providing that, where the first fact is shown to  exist, the second facts existence is  wholly  immaterial for the purpose of the proponent’s case; and to provide this is  to  make  a  rule of substantive law,  and  not  a  rule apportioning  the  -burden  of  persuading  as  to   certain propositions  or  varying the duty of  coming  forward  with evidence(1)"With  respect,,  it is doubtful  whether  it  is correct to say that in drawing a conclusive presumption from one  fact  proved about the existence of another  fact,  the rule renders the second fact’s existence wholly  immaterial. What  the rule provides is that the probative or  persuasive value of the proved fact in relation to the fact not  proved is so great that the fact not proved should always be  taken to  be proved once the other fact is proved.  In  any  case, the  opinion  of  Wigmore is in favour  of  the  contentions raised by the petitioners. Phipson  puts  the  proposition  in  somewhat  guarded   and qualified terms.  ’In many cases"

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(1)  Wigmore on Evidence IX Edition P. 292.  Para. 2492. 255 he  observes, "these so called conclusive  presumptions  are rules  which  belong  properly  speaking,  to  the   various branches of substantive law and not to the law of  evidence, such  as  the  presumption that an  infant  under  seven  is incapable  of committing a felony or that all men  know  the law  (i.  e.,  that ignorance of the law is  no  excuse  for crime)."  (1).  It would thus be noticed that  according  to Phipson,  it is not true as a general inflexible  rule  that all  conclusive  presumptions  pertain  to  the  branch   of substantive  law  and he has illustrated  his  statement  by taking two instances of conclusive presumptions to show that the said presumptions are really matters of substantive law. Therefore, if the test laid down by Phipson is reliable then the  question  as to whether a conclusive presumption  in  a given case is a part of the substantive law or forms a  part of  the rule of evidence, properly so called.  Will have  to be  decided in the light of the content of the rule and  its implications. Stephen  also  has  considered  this  problem.   "Conclusive presumptions",  he  says,  ,,appear  to  me  to  belong   to different  branches  of  the  Substantive  Law,  and  to  be unintelligible  except  in connection with them.   Take  for instance the presumption that every one knows the law.  This rule  cannot be properly appreciated if it is treated  as  a part  of  the Law of Evidence.  It belongs to  the  Criminal Law.  In the same way, numerous presumptions as to rights of property    (in   particular   easements   and    incorporal hereditaments) belong not to the Law of Evidence but to  the Law  of Real Property’.  Having said so, the learned  author adds  that  ’-the only presumptions which,  in  my  opinion, ought  to  find a place in the Law of  Evidence,  are  those which  relate  to facts merely as facts and apart  from  the particular rights which they constitute(2).  That is how  in his Digest, he has included certain (1)  Phipson on Evidence, IX Edition P. 698. (2)  Stephens Digest of the Law of Evidence, page xvii. 256 presumptions under Arts. 98 to 105.  These are respectively, presumption  of legitimacy, presumption of death from  seven years’  absence, presumption of lost grant,  presumption  of regularity  and  of  deeds to  complete  title  estoppel  by conduct,  estoppel  of  tenant  and  licensee,  estoppel  of acceptor  of bill of exchange and estoppel of bailee,  agent and  licensee.  It would thus be seen that estoppel  of  the four  kinds just indicated constitutes a branch of  rule  of evidence, according to Stephen. Dicey  seems  to  take the view that even  for  purposes  of domestic law, irrebuttable presumptions of law are rules  of substance, and he adds that "’rebuttable presumptions of law must,  for  the, present purpose,  be  further  sub-divided. First, there are those which only apply in certain contexts, such  as the presumptions of advancement,  satisfaction  and ademption.   It  is  submitted that  these  are  so  closely connected with the existence of substantive rights that they ought  to  be classified as rules of  substance.   Secondly, there are those which apply (though not always in  precisely the   same  way)  to  all  types  of  cases,  such  as   the presumptions  of  legitimacy, marriage  and  death.   ’It is uncertain  whether such presumptions are rules of  substance or  rules  of procedure." (1) According to  Diciy,  for  the ,purposes  of  English domestic law, estoppel  is  generally treated as a rule of evidence.  In dealing with this  topic, Dicey  has  observed that : "in order to  determine  whether

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presumptions  are rules of substance or rules of  procedure, it  is  necessary  to distinguish  between  three  kinds  of presumptions".   Then  he refers to  presumptions  of  fact, rebuttable presumptions of law and irrebuttable presumptions of  law.   As  to presumptions of  facts,  he  thinks  that, strictly  speaking, they have no legal effect at  all;  they are  merely common inferences and, as such, will be  applied alike to cases governed by English and foreign law. (1)  Dicey’s Conflict of Laws, Seventh Edition. page 1098. (2)  Thayer’s  ’A  Preliminary Treatise on Evidence  at  the Common Law page 314.  257 It is no doubt true that in dealing with the question  about the   character   of  the  rule   prescribing   irrebuttable presumptions, we must attach due importance to the  opinions expressed by jurists.  But, as we have just seen, the  views expressed  by  jurists  on this topic  do  not  disclose  an identity  of approach and their conclusions  show  different shades of opinion.  That is why bearing in mind the juristic opinion  to which we have just referred, we will proceed  to examine  the  merits  of  the  argument  that  the  rule  of irrebuttable presumption prescribed by the impugned rule  is a part of the substantive law and does not form part of  the law of evidence properly so-called. It  is  conceded,  and  we  think,  rightly,  that  a   rule prescribing a rebuttable presumption is a rule of  evidence. It  is  necessary  to  analyse  what  the  rule  about   the rebuttable  presumption  really means.  A fact A  which  has relevance  in  the proof of fact B and inherently  has  some degree  of probative or persuasive value in that behalf  may be weighed by a judicial mind after it is proved and  before a  conclusion is reached as to whether fact B is  proved  or not.  When the law of evidence makes a rule providing for  a rebuttable presumption that on proof of fact A, fact B shall be  deemed to be proved unless the contrary is  established, what  the  rule purports to do is to regulate  the  judicial process  of  appreciating evidence and to provide  that  the said appreciation will draw the inference from the proof  of fact A that fact B has also been proved unless the  contrary is  established.   In  other  words,  the  rule  takes  away judicial discretion either to attach the due probative value to fact A or not and requires prima facie the due  probative value  to be attached in the matter of the inference  as  to the  existence  of fact B, subject, of course  to  the  said presumption  being  rebutted by proof to the  contrary.   As Thayer  has observed : "presumptions are aids  to  reasoning argumentation, which assume the truth of certain matters for the  purpose  of some given inquiry.  The  exact  scope  and operation of 258 these  prima  facie assumptions are to cast upon  the  party against  whom  they operate, the duty of  going,forward,  in argument or evidence, on the particular point to which  they relate.   They  are thus closely related to the  subject  of judicial  notice  ; for they furnish the basis  of  many  of those  spontaneous  recognitions  of  particular  facts   or conditions  which make up that doctrine". (1)  According  to the  same author, legal presumptions of the rebuttable  kind are definitions of the quantity of evidence or the state  of facts  sufficient to make out a prima facie case ; in  other words, of the circumstances under which the burden of  proof lies  on the opposite party.  Thus, the rule  of  rebuttable presumption adds statutory force to the natural and inherent probative  value of fact A in relation to the proof  of  the existence  of fact B and in adding this statutory  value  to

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the  probative  force of fact A, the rule, it  is  conceded, makes  a provision within the scope and function of the  law of evidence.  If that is so how does it make a difference in principle  if  the  rule adds  conclusive  strength  to  the probative value of the said fact A in relation to the  proof of  the existence of fact B ? In regard to the  category  of facts  in  respect of which an irrebuttable  presumption  is prescribed  by a rule of evidence, the position is that  the inherent  probative value of fact A in that behalf  is  very great  and  it is very likely that when it is  proved  in  a judicial proceeding, the judicial mind would normally attach great  importance to it in relation to the proof of fact  B. The  rule  steps in with regard to such facts  and  provides that  the  judicial  mind should attach  to  the  said  fact conclusiveness  in  the matter of its probative  value.   It would  be  noticed  that  as in the  case  of  a  rebuttable presumption, so in the case of an irrebuttable  presumption, the   rule   purports  to  assist  the  judicial   mind   in appreciating  the  existence  of facts.   In  one  case  the probative  value  is statutorily strengthened but  yet  left open to rebuttal, in the other (1)  Thayer’s  ’A  Preliminary Treatise on Evidence  at  the Common Law, page 314.                             259 case,  it is statutorily strengthened and placed beyond  the pale  of rebuttal.  Considered from this point of  view,  it seems  rather difficult to accept the theory that whereas  a rebuttable  presumption is within the domain of the  law  of evidence, irrebuttable presumption is outside the domain  of that law and forms part of the substantive law. In  D. B. Heiner v. John H. Donnan(1), the Supreme Court  of the  United States of America bad occasion to  consider  the validity  of the provision of a Federal statute  imposing  a death transfer tax in respect to transfers at the time of or in contemplation of death, that any transfer made within two years  prior  to the death of decendent shall be  deemed  to have been made in contemplation of death within the  meaning of  the  statute  and it was held that  the  said  provision violated  the due process clause of the 5th Amendment.   The argument  partly turned upon the question as to whether  the irrebuttable  presumption  authorised  to be  drawn  by  the impugned  section  of  statute  was a part  of  the  law  of evidence  or  of  the substantive law.  In  support  of  the statute,  it  was  urged  that  the  conclusive  presumption created  by the statute was a rule of substantive law.   The Court, however, rejected the plea and held that the rule was a  rule of evidence and as such violated the  constitutional guarantee  provided by the 5th Amendment.  In rejecting  the plea  urged by the State that the rule was a rule  of  subs- tantive   law,  Mr.  Justice  Sutherland  observed  that   a rebuttable  presumption clearly is a rule of evidence  which has  the  effect  of shifting the burden  of  proof  and  in support  of  this  conclusion, he referred  to  the  earlier decisions  of the Court.  The Learned Judge then added  that "it is hard to see how a statutory rebuttable presumption is turned  from a rule of evidence into a rule  of  substantive law as the result of a later statute making it conclusive. (1)  (1932) 76 aw.  Ed. 772, 780 260 In both cases it is a substitute for proof, in the one  open to  challenge and disproof and in the other conclusive."  We ought  to  add  that the learned Judge made  it  clear  that "whether the presumption be treated as a rule of evidence or of   substantive   law,  it  constitutes  an   attempt,   by legislative fiat, to enact into existence a fact which  here

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does not, and cannot be made to, exist in actuality, and the result  is  the same, unless we are ready to  over-rule  the Schlesinger Case, as we are not; for that case dealt with  a conclusive presumption and the Court held it invalid without regard  to the question of its technical  characterization." Thus,  the  observations made by Mr. Justice  Sutherland  in regard to the character of the rule of irrebuttable presump- tion afford assistance to the contention raised before us on behalf of the Union of India. But  it is said that a conclusive presumption  prevents  the party against whom it is drawn from disproving the inference about the existence of fact B which is required to be  drawn from  the proof of fact A. This circumstance, however,  does not  affect the character of the rule as failing within  the domain  of the law of evidence.  Take the case  of  estoppel which  is admitted to be a part of the law of evidence.   In the cage of estoppel where the essential ingredients of  the rule  are satisfied, a party is precluded from  denying  the truth  of  the  thing covered by  his  declaration,  act  or omission.  In other words, where estoppel is pleaded against a party on the strength of his declaration, act or omission, whereby he intentionally caused or permitted another  person to  believe a thing to be true, that party is not  permitted to  say that the thing itself was not true and yet the  rule which puts this bar against the party and precludes him from proving that the thing in question is untrue, is treated  as a  rule  of  evidence.  Therefore, the fact that  a  bar  is created preventing a party from                             261 proving  the  truth or falsity of a thing the  existence  of which  is inferred, does not show that the rule itself is  a part of the substantive law. Then  it is argued that the conclusive rule in  the  present case extinguishes the status of citizenship and as such,  is a part of the rule of substantive law.  We are not impressed by this argument either.  What the rule really provide,%  is that  when  one fact in established, another fact  shall  be deemed  to have been established.  The fact  established  is that  an  Indian  citizen has obtained  a  passport  from  a foreign  Government on a certain date.  From this  fact,  an irrebuttable  presumption is required to be drawn  that  the obtaining of the passport from the foreign Government estab- lishes  the  acquisition  of the  citizenship  of  the  said foreign State.  This is a case where from the proof of  fact A an inference as to the existence of fact B is required  to be drawn.  As to the inherent probative and persuasive value of  fact  A in relation to the existence of fact B  in  this context, we will have occasion to discuss it later on.   The argument  that  the  application of the  rule  may  in  some hypothetical   cases  conceivably  lead  to   hardship   and injustice,  is not relevant or material in dealing with  the constitutional validity of the rule. In  deciding  the  question  as  to  whether  a  rule  about irrebuttable  presumption is a rule of evidence or  not,  it seems  to us that the proper approach to adopt would -be  to consider   whether  fact  A  from  the  proof  of  which   a presumption  is required to be drawn about the existence  of fact B, is inherently relevant in the matter of proving fact B  and has inherently any probative or persuasive  value  in that  behalf  or not.  If fact A is inherently  relevant  in proving the existence of fact B and to any rational mind  it would bear a, probative or persuasive value in the matter of      262 proving  the  existence of fact B, then a  rule  prescribing either   a   rebuttable  presumption  or   an   irrebuttable

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presumption in that behalf would be a rule of evidence.   On the  other  hand, if fact A is inherently  not  relevant  in proving the existence of fact B or has no probative value in that  behalf  and  yet  a rule  is  made  prescribing  of  a rebuttable or an irrebuttable presumption in that connection that rule would be a rule of substantive law and not a  rule of evidence.  Therefore, in dealing with the question as  to whether a given rule prescribing a conclusive presumption is a rule of evidence or not, we cannot adopt the view that all rules  prescribing  irrebuttable presumptions are  rules  of substantive  law.   We can answer the  question  only  after examining  the rule and its impact on the proof of  facts  A and B. If this is the proper test, it would become necessary to  enquire  whether  obtaining a passport  from  a  foreign Government  is or is not inherently relevant in proving  the voluntary  acquisition  of the citizenship of  that  foreign state. It  has  been  fairly conceded before  us  that  a  passport obtained  by  the petitioners from the  Pakistan  Government would undoubtedly by relevant in deciding the question as to whether by obtaining the said passport they have or have not acquired   the  citizenship  of  Pakistan.   Sometimes   the argument  appears  to have been urged and  accepted  that  a passport in question would not be relevant to the enquiry as to whether citizenship of Pakistan has been acquired or not. That view, in our opinion, is clearly erroneous. The  definition of a passport given by Lord  Alverstone,  C. J., in R. v. Brailsford (1) has been adopted by the House of Lords in the joyce case (2) and it is of some assistance  in dealing with the .point with which we are concerned.  "It is a document", says Lord Alverstone, ,,issued in the name of (1) [1905] 2 K. IL 730. (2) [1946] A.C. 347. 263 the  Sovereign  on the responsibility of a Minister  of  the Crown to a named individual, intended to be presented to the Governments  of  foreign  nations and to be  used  for  that individual’s  protection  as a British  subject  in  foreign countries".  As P. Weis observes : "a passport is considered in  Great  Britain and the United States to be  prime  facie evidence of the national status of the holder, but it is not conclusive evidence".  He adds that "’the United States  has on many occasions insisted that foreign authorities were not entitled to ignore an American passport, i.e.,; to refuse to regard   it   as   sufficient   proof   of   the    holder’s nationality"(1). It  appears that in support of the view that a  passport  is not relevant in an enquiry as to the citizenship of a person holding  a  passport, reliance is sometimes  placed  on  the observation,%  made  by  Mr.  Justice  Thompson  in  Dominao Urtetiqui v. John N. D’arcy, Henry Didier and Domi  D’Arbel: (2) "Upon the general and abstract question" observes Thomp- son  J., in delivering the decision of the Supreme Court  of the United States, " whether the passport per se, was  legal and competent evidence of the fact of citizenship, we are of the opinion that it was not." It would, however, be seen  on looking at the whole of the judgment that the learned Judge, made  it  perfectly clear during the course  of  the  latter portion  of his judgment that on that issue, the  court  was divided  in opinion, and the point was of course  undecided. So, the general observation made in the earlier part of  the judgment  is really of no & saistance in the  matter.   That case  shows  that  the plaintiff  had  produced  a  passport granted by the Secretary of States of the United States,  in order  to  show  that he was the citizen  of  the  State  of

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Maryland.   The  defendant, on the other  band,  offered  in evidence  the  record of the District Court  of  the  United States  for  the  District  of  Louisiana  which   contained proceedings in a suit which had (1)  P.   Weis   on  ’Nationality   and   Statelessness   in International Law P. 225-226 (2)  (1835) 9 Law.  Ed., 692. 264 been  originally  instituted against the  plaintiff  to  the effect  that he was an alien and it appears that of the  two pieces of evidence, the latter was held to be more reliable. Therefore,  in  our  opinion, the learned  counsel  for  the petitioners were quite right in conceding that the passports obtained by the petitioners were relevant in the enquiry  as to the question whether they had acquired the citizenship of Pakistan or not.  If that be so, applying the test which, we think,  is appropriate in such cases, it must be  held  that the impugned rule of evidence and not a rule of  substantive law.   The fact of obtaining the passport from  Pakistan  on which a conclusive presumption is drawn as to the  voluntary acquisition  of the citizenship of Pakistan is relevant  and the  rule  merely  makes  its  probative  value  conclusive. Therefore,  we  are  not disposed to  uphold  the  objection raised  by the petitioners that the impugned rule is a  rule of substantive law and as such, falls outside the purview of section  9(2).   If it is a rule of  evidence  properly  so. called,  it  would  be within the  scope  of  the  authority conferred  on  the.  Central Government by s. 9(2)  and  its validity-cannot be successfully challenged. There  is one decision to which we ought to refer before  we part  with this topic.  The petitioners in support of  their argument  that impugned rule is a rule of  substantive  law, have placed reliance on the decision in In re KOHN In  -that case, a mother and a daughter, who were German nationals and at  all  times domiciled in Germany, were killed in  an  air raid  in  London as a result of the same explosion,  and  it could  not  be proved which of them had died  earlier.   The daughter was entitled to movable property under her mother’s will,  if she survived her mother.  On these facts,  it  was held  that  the  question of survivorship  depended  on  the provision of the German Civil Code under which (1)  [1945] Ch.  D. 5.                             265 the deaths were presumed to have taken place  simultaneously and  so  she was not a person living at the  time  when  the succession to her mother’s estate opened and, therefore, was not  entitled to the property.  The provision  contained  in section  181  of  the English Law  of  Property  Act,  1925, however, was to the contrary.  It provided that where two or more persons have died circumstances rendering it  uncertain which  of  them survived the other or  others,  such  deaths shall, (subject to any order of the Court) for all  purposes affecting  the  title to the property, be presumed  to  have occurred in order of seniority, and accordingly the  younger shall  be  deemed to have survived the elder.  It  was  held that  the two relevant statutory provisions both of  English ’and German Law were rules of substantive law., In fact, the relevant English section occurred in the Law of Property Act and  its ,setting and context import that it was a  rule  of substantive law.  So was the rule contained in Article 20 of the  Civil Code of Germany treated as a rule of  substantive law.   The  main reason given in support of  the  conclusion that the two rules were rules of substantive law appears  to be  that each one directed a certain presumption to be  made in  all cases affecting the title to property.  It would  be

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noticed that the scope, purport and effect of the two  rules is  substantially  different  from the  scope,  purport  and effect  of  the rule with which we are  concerned.   In  the rules  with which the court was concerned in re-Cohn,  there is  no question about the probative value of one fact  being judged or appreciated under statutory rule in regard to  the proof of the existence of another fact.  Like the rule  that ignorance  of  law is no excuse, the rules  with  which  the court  was concerned were clearly rules of substantive  law. Therefore, in our opinion, not much assistance can be  drawn from  the judgment of Uthwatt, J., in the case  of  re-Cohn. It is clear that the simultaneous deaths of two persons is 266 neither rationally or inherently relevant to, nor has it any inherent probative value in, the proof of the question as to the   sequence  of  the  two  deaths  and,  therefore,   the provisions in the two sections being purely arbitrary,  were rightly held to be matters of substantive law. In  dealing with this question, it may also be  relevant  to consider the practical aspect of the rule; and that takes us to  the  procedure which has to be followed in  Pakistan  in obtaining a passport from the Government of that country for travel  to  India.   One of the objects which  the  Act  was incidentally  intended to achieve was to meet the  emergency which arose as a result of the partition of the country into India  and  Pakistan,  and  the  relevant  rules  are   also primarily  applicable  to Indian nationals who on  going  to Pakistan  obtained  passport  from the  Government  of  that country.  Now, it is not disputed that according to the laws prevailing  in Pakistan, a person is not entitled  to  apply for or obtain a passport unless he is a citizen -of Pakistan under its Citizenship Act.  Besides, the prescribed form  of the  application requires that the applicant should  make  a declaration  to the effect that he is a citizen of  Pakistan and the said declaration has to be accepted by the  Pakistan authorities  before a passport is issued.  In the course  of the  enquiry  as  to  the  citizenship  of  the   Applicant, declaration by officials of Pakistan about the truth of  the statement  of the applicant are also required to  be  filed. Thus, the procedure prescribed by the relevant Pakistan laws makes  it  abundantly  clear that the  application  for  the passport has to be made by a citizen of Pakistan, it has  to contain  a declaration to that effect and the truth  of  the declaration has to be established to the satisfaction of the Pakistan  officials  before a passport is granted.   When  a passport  is obtained under these circumstances, so  tar  as the Pakistan Government is concerned, there can be no  doubt that it would be entitled to claim  267 the  applicant  as its own citizen.  The  citizen  would  be estopped from claiming against the Pakistan Government  that the  statement made by him about his status was untrue.   In such  a  case,  if the impugned  rule  prescribes  that  the obtaining  of a passport from the Pakistan Government by  an Indian national, (which normally would be the result of  the prescribed application voluntarily made by him) conclusively proves  the voluntary acquisition of Pakistani  citizenship, it  would be difficult to hold that the rule is ’not a  rule of  evidence.   In  our opinion, it would  be  pedantic  and wholly unrealistic to contend that the rule in question does not  purport to assess the probative value of fact A in  the matter  of proving fact B but imports  considerations  which are relevant to substantive law.  Our conclusion, therefore, is  that the impugned rule of evidence and falls within  the scope prescribed by s. 9 (2).  The challenge to its validity

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on  the  ground  that it is rule of  substantive  law  must, therefore fail. But  quite  apart from this thoretical  or  juris-prudential aspect   of  the  matter,  there  is   another   independent consideration  which  supports  the  same  conclusion.   The question  raised  before us is one of construing  the  words "’rules  of  evidence" used in s. 9 (2) of the Act,  and  in construing  the said words, it would obviously be  necessary to  bear in mind the legislative history of the  content  of the  words "rules of evidence" in India.  The  Evidence  Act (Act  No.  I  of 1872) was passed as early as  1872  and  by section 4 it recognised as rules of evidence the rules which prescribe  for  a  presumption which may  be  drawn,  for  a presumption which shall be drawn subject to rebuttal and for a  presumption which shall be conclusively drawn.   Sections 41,   112   and   113  are   illustrations   of   conclusive presumptions.   It will be recalled that similar  provisions were included by Stephen in his draft of the Law of Evidence after expressing the opinion that the said 268 presumptions  form part of the Law of  Evidence,  Therefore, from  1872  onwards, it has been accepted in  India  that  a conclusive presumption is a part of the law of evidence. Bearing  this  fact in mind, we have to  consider  what  the denotation  of the expression ’.’evidence" would be  in  the relevant  entries to the Seventh Schedule in the  Government of  India Act of 1935 as well as the Constitution.  Entry  5 in List III of the Seventh Schedule of the earlier Act was : "Evidence  and oaths ; recognition of laws, public acts  and records and judicial proceedings." Similarly Entry 12 in the concurrent  List  of the 7th Schedule  to  the  Constitution reads  in  the same way.  It is well settled  that  "when  a power is conferred to legislate on a particular topic, it is important  in  determining the scope of the  power  to  have regard to what is ordinarily treated as embraced within that topic  in  legislative  practice  and  particularly  in  the legislative  practice of the State which has  conferred  the power  (1) (Croft Dunphy).  A relevant instance in point  of this rule of construction is afforded by the decision of the Federal Court in The Central Provinces and Berar.Act No. XIY 1938  Dealing with the content of the  expression  ’,,excise Gwyer, C. J., observed:               "Parliament  must surely be presumed  to  have               had  Indian legislative practice in mind  and,               unless the context otherwise clearly requires,               not  to  have conferred  a  legislative  power               intended  to  be interpreted in  a  sense  not               understood  by  those to whom the Act  was  to               apply." There  can,  therefore, be no doubt that the  expression  ,- rules  of  evidence" construed in the light  of  the  Indian legal  and legislative history would include some  rules  of conclusive proof and if that is so, it (1) [1933] A. C. 156, 165. (2) [1939] F. C. R. 18, S. 269 would be idle to contend that the impugned rule is a part of the   substantive  law  merely  because  it   prescribes   a conclusive presumption.  If that be the true position, we do not  think  we  would be justified in  contruing  the  words "rules  of  evidence  to  adopt  the  academic  or  pedantic approach  suggested  by  the  petitioners.   The  expression "rules  of  evidence" would certainly include a rule  as  to conclusive  presumption  like  the one  with  which  we  are concerned  in  the present petitions.   Therefore,  on  this

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construction of s. 9(2), the impugned rule must be he-Id  to be intra vires. The  question  about  the validity of  this  rule  has  been considered by some of the High Courts in India.  The  Andhra Pradesh (1) and Allahabad High Courts (2) have held that the rule is invalid, whereas the Bombay,the  Rajasthan   (4) and  the  Madras  High  Courts have held that  the  rule  is valid. The next point to consider is about the validity of s.  9(2) itself.  It is argued that this rule is ultra vires  because it  affects  the  status of  citizenship  conferred  on  the petitioners  and recognised by the relevant Articles Of  the Constitution,  and  it  is  urged  that  by  depriving   the petitioners of the status of citizenship, their  fundamental rights  under Art. 19 generally and -particularly the  right guaranteed by Art.19(1)(e) are affected.  It is not easy  to appreciate this argument.  As we have already observed,  the scheme of the relevant Articles of Part II which deals  with citizenship clearly suggests that the status of  citizenship can  be  adversely  affected  by  a  statute  made  by   the Parliament  in exercise of its legislative powers.   It  may prema  facie sound somewhat surprising, but it is never  the less true, that though the citizens of India are  guaranteed the   fundamental  rights  specified  in  Art.  19  of   the Constitution, the (1) A. I.R. 1957 Andh. 1047. (2) 1 A. 1. R. 1960 All 1637. (3)  A. 1. R. 1958 Bom. 1422. (4)  A. 1. R. 1958 Raj. 172. (5) A. 1. R. 1961 Mad. 129. 270 status of citizenship on which the existence or  continuance of  the  said  rights  rests  is  itself  not  one  of   the fundamental  rights  guaranteed  to anyone.   If  a  law  is properly  passed by the Parliament affecting the  status  of citizenship  of  any citizens in the country, it can  be  no challenge  to the validity of the said law that  it  affects the fundamental rights of those whose citizenship is thereby terminated.  Article 19 proceeds on the assumption that  the person  who claims the rights guaranteed by it is a  citizen of  India.   If the basic status of citizenship  is  validly terminated  by  a Parliamentary statute,  the  person  whose citizenship  is  terminated  has  no  right  to  claim   the fundamental rights under Art. 19.  Therefore in our opinion, the  challenge to s. 9(2) on the ground that it enables  the rule-making  authority  to  make  a  rule  to  deprive   the citizenship rights of ’the Petitioners cannot be sustained. That  leaves  only  one  point  to  be  considered  in   the petitioners’  attack against the validity of s.9(2).  It  is urged   that  s.9(2)  confers  on  the  Central   Government uncanalised  and arbitrary power to make rules  without  any guidance and as such it amounts to excessive delegation.  In our  opinion,  there  is  no  substance  in  this  argument. Section  9(1) has itself provided that if an Indian  citizen applies  for naturalisation in a foreign State  and  obtains such  naturalisation,  he will be deemed to  have  lost  the citizenship of India.  The same provision is made in  regard to registration.  The Legislature knew that the  acquisition of   the  citizenship  of  a  foreign  State  may  be   made voluntarily   even  otherwise  than  by  naturalisation   or registration  and so it has provided for the third  category of  acquisition  of  foreign, citizenship  under  the  la-at clause "otherwise voluntarily acquires" so that  rule-making had  to  be  confined primarily to  this  last  category  of acquisition of foreign citizenship.  The basic principle  on

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which  the  Act proceeds and which has  been  recognised  by Art.9 of the Constitution itself is that no Indian 271 citizen  can  claim  a  dual  or  plural  citizenship.   The acquisition   of   foreign  citizenship  can  be   made   by naturalisation or registration and as soon as it is so made, the  prior Indian citizenship is terminated.  It is  in  the light  of  these  principles which are  writ  large  on  the provisions of the Act that the rule making power had to make rules  about  the  class of cases  falling  under  the  last category  of  acquisition of foreign  citizenship,  and  the rules show how the task has been attempted.  We have already referred  to r. I to 3. Rules 4 and 5 which deal with  cases other  then  those where passport has been  obtained  by  an Indian citizen, prescribe the relevant factors which have to be  considered in each case before deciding whether  foreign citizenship  has been acquired by an Indian or not  and  the impugned  r.  3  itself  proceed,% on  the  basis  that  the conditions  prescribed by the Pakistan Law for  obtaining  a passport  from the Pakistan Government take the case of  the obtaining  of the passport very near to the case  of  regis- tration or naturalization.  Therefore, having regard to  the scheme  of  the  Act and the principles  enunciated  in  its relevant sections, we do not think that it can be held  that in enacting section 9(2), the Legislature has abdicated  its essential legislative function in favour of the rule  making authority.  That is why our conclusion is that section  9(2) is valid. In  the result, the petitions fail and are dismissed,  there would be no order as to costs. DAS GUPTA, J.-These, three petitions raise common  questions of  law  and  have therefore been heard  together.   As  the questions  that  arise are of law and the facts are  not  in dispute  and substantially the same, it would be  convenient to  deal with the facts of one of those petitions only.   We propose to take for this purpose W. P. No. 88 of 1961. The petitioner Habib Hidayatullah claims to be a citizen  of India and has filed this petition for 272 protection  of  his fundamental right under Act. 19  of  the Constitution  which he says is threatened by the  action  of the Union of India and the State of Maharashtra.  It is  not disputed  that  the petitioner was on January  26,  1950,  a citizen of India and obtained a Hai passport for  pilgrimage in  that capacity.  According to him he sailed  from  Bombay for  Basra  (Iraq) on April 5, 1950. and  stayed  there  for three  years in connection with some business and then  went to Karachi on May 2, 1953, with his brother for the latter’s treatment.    On  his  arrival  at  Karachi   the   Pakistan authorities  took away his Indian travel documents.   During the years 1954, 1955, 1956 and 1957 be made several attempts to  obtain  facilities from the Indian  High  Commission  at Karachi  for his return to India.  But having failed to  get any  assistance  there he obtained a Pakistan  passport  and travelled  to  India  on the basis of the  same.   This  was obtained  on December 14, 1957 and the petitioner’s case  is that  he obtained it as this was the only possible  way  for him  to  return home to India with his  ailing  brother  and without any intention to renounce his Indian eitizenship  or to acquire Pakistan citizenship.  After his return to  India the  petitioner made several representations to  the  Indian authorities  asking them "to recognize him as a  citizen  of Indian  and/or to register him as such and/or to permit  him to  stay  premanently in India." But ultimately  the  Indian authorities  refused to recognise him as a citizen of  India

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and/or to permit him to stay permanently in India. Faced  now  with the risk of being deported from  India  the petitioner has approached this Court for an order  directing the  respondents,  the  Union  of India  and  the  state  of Maharashtra  to refrain from taking any steps to  deport  or remove  him from India and to recognise him as a citizen  of India by birth under Art. 5(1)(a) of the Constitution., When admitting his writ petition after the                             273 preliminary hearing this Court made an order stating that it would be open to the petitioner to move the Government under s. 9(2) of the Citizenship Act or the Government suo motu to take action under it. Thereafter both the respondents have entered appearance  and oppose  the  petition  for  stay  on  the  ground  that  the petitioner  has  ceased  to  be a  citizen  of  India.   The Government  of India then took action under s. 9(2)  of  the Citizenship  Act and has determined that the petitioner  has voluntarily  acquired  the  citizenship  of  Pakistan  after January 26, 1950, and before December 14, 1957. The  order  made by the Government of India  shows  that  in reaching  the above conclusions it took into  consideration, among  other  things,  the  fact  that  "the  petitioner  by declaring  himself  to be a citizen of Pakistan  before  the Pakistan authorities ............ obtained a passport on the 14th December 1957."               Section 9 of the Citizenship Act runs thus:-               "Any  citizen of India who  by  naturalization               registration  or  otherwise  voluntarily  acq-               uires,  or  has at any such time  between  the               26th  January,  1950 and the  commencement  of               this Act voluntarily acquired the  citizenship               of   another   country   shall,   upon    such               acquisition  or,  as  the case  may  be,  such               commencement, cease to be a citizen of India:               Provided that nothing in this subsection shall               apply to a citizen of India who during any war               in  which  India may be  engaged,  voluntarily               acquires  the citizenship of  another  country               until   the   Central   Government   otherwise               directs.               (2)If  any question arises as to whether  when               or how any person has acquired the               274               citizenship  of another country. it  shall  be               determined  by such authority, in such  manner               and  having regard to such rules of  evidence,               as may be prescribed in this behalf." Rule 30 of the Citizenship Rules 1956, framed by the Central Government  under Section 18 of the Citizenship  Act,  1955, (Act,  No.  57 of 1955) provides: (1) that if  any  question arises  as to whether’ when or how any person  has  acquired the  citizenship  of  another  country,  the  authority   to determine  such question shall, for the purposes of s.  9(2) be  the Central Government ; and (2) the Central  Government shall  in determining any such question have due  regard  to the  rules  of evidence specified in  Sch.III  Schedule  III contains five rules of which r. 3 runs thus:-               "The fact that a citizen of India has obtained               on any date. a passport from the Government of               any other country shall be conclusive proof of               his    having   voluntarily    acquired    the               citizenship of that country before that date." There  can  be no dispute that if the order of  the  Central

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Government  determining that the petitioner has  voluntarily acquired  the  citizenship  of  Pakisthan  after  the   26th January, 1950, is a valid order in accordance, with s.  9(2) the  petitioner  has  under the provisions of  9(1)  of  the Citizenship  Act  ceased to be a citizen of  India  and  his petition must accordingly fail.  It has been urged before us however  that  this determination of the Government  has  no legal  force inasmuch as it was made on the basis of Rule  3 of Sch.  III of the Citizenship Rules, which Rule itself  is invalid. The principal question canvassed before us is as regerds the validity  of this ’rule-.  The main attack against the  rule is  that while s. 9(2) empowers the Government to  prescribe rules of evidence,                             275 Rule  3 is not a rule of evidence but a rule of  substantive law  and is therefore beyond the limits of the powers  which were   delegated   to  the  rulemaking  authority   by   the legislature. The  contention  on  behalf  of the  petitioner  is  that  a distinction  must  be  drawn between  a  rule  of  evidence, properly so called and a rule which though called a rule  of evidence lays down ai rule of substantive law ; and that  if that distinction is borne in mind it becomes clear that  r.3 is not a rule of evidence.  The other argument is that  when any  fact  is  stated by a rule to be  conclusive  proof  of another  fact,  the rule is in effect laying down  that  the happening of the first fact will be equivalent in law to the happening  of  the other fact and so a party  interested  to prove the falsity of such other fact is being prevented from giving relevant evidence. Every law has something to do with the function if the State in  securing  rights  to and  imposing  liabilities  on  its people.  While however some of the laws deal primarily  with the  ,creation, modification or extinguishment of rights  or liabilities, other laws deal with the further task that then becomes necessary-of ascertaining how far in any  particular case,  such rights or liabilities have come into  existence, or  have  become, destroyed.  For clarity  of  thought,  and convenience  of discussion, the laws falling in  the  former class are called substantive laws while those in the  second class are called adjective laws.  Adjective laws again  have two branches, one dealing with the procedure of the court  ; and   the  other  (which  is  also  in  the   strict   sense "procedure")  rule  of evidence.   The  distinction  between Substantive   law  adjective  law  is  well  understood   in jurisprudence,  thought some amount of confusion  has  occa- sionally  been  caused by some writers losing sight  of  the distinction.  As early as the beginning of 276 the  nineteenth century Bentham criticised in his  Rationale of Judicial Evidence the tendency of many writers to present rules I of civil law and criminal law as rules of  evidence. "What,   there.  fore.  the  lawyers  give  us,  under   the appellation "law of evidence," says Bentham, ,is really,  in a  great part’ of it, civil and penal law." Since  Bentham’s time  much  progress has been made in this matter  and  many jurists of eminence have emphasised the distinction  between rules of evidence properly so called and rules which in  the guise  of rules of evidence are really rules of  substantive law.   Mr.  Justice Holmes in this Common Law  says-"lf  the Court  should  rule that certain acts or  omissions  coupled with  damage were conclusive evidence of  negligence  unless explained,  it would, in substance and in truth;  rule  that such  acts  or  missions  were  a  ground  of  liability  or

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prevented  a  recovery, as the case might be." "It  is  then fundamental",  says.  Professor Thayer, in his  -Preliminary Treatise   on  Evidence,"’  that  not   all   determinations admitting or excluding evidence are referable to the law  of evidence.  Far the larger part of them are not." "Permitting a fact", says Professor Wigmore in his Treatise on Evidence, to  become a proposition is not an evidentiary  process  and gives the following example : ""An action of battery upon  a plea  of not guilty, the defendant offers evidence to  prove that  the  plaintiff used insulting words to  the  defendent before the attack, and this is rejected; here the ruling  is in truth that insults constitute no excuse or no ground for, mitigation  of  damages,  a  rule  of  substantive  law;  or perhaps,  that such a defence is. not available upon a  plea ,traversing  the,  battery   a  rule  Of  pleading.   It  is certainly not a ruling upon a question of evidence ; it is a ruling that the proposition desired to be prove(] is  either not  tenable by, the substantive law, or riot  issuable,  by the law of pleading."                             277 This  reasoning is obviously at the basis of Wigmore’s  view in s. 2492, Vol.  IX of the ’Same treatise that rules laying down  conclusive presumptions are really  rules  substantive law.  "In strictness" says he, "there cannot be such a thing as a conclusive presumption." Wherever from one fact another is  said to be conclusively presumed in the sense  that  the opponent  is  absolutely  precluded  from  showing  by   any evidence  that the second fact does not exist., the rule  is really  providing  that, where the first fact  is  shown  to exist,  the second facts existence is wholly immaterial  for the purpose of the proponent’s case ; and to provide this is to  make a substantive law and not a rule  apportioning  the burden  of persuading as to certain propositions or  varying the duty of coming forward with evidence." The same view has been expressed by Prof.  Holdsworth in his History  of  English Law.  At page 139, Vol.   IX,  of  this history,  he,  after  tracing  how  presumptions  have  been evolved by the Courts or the legislature, proceeds to  says: ---"  lit this way the law as to presumptions  of  different kinds comes to contain a confused and heterogeneous mass  of rules,  relating to many different legal topics.  In so  far as the courts or the legislature treat these presumptions as conclusive,  they cannot at the present day be  regarded  as parts  of  the law of evidence." They are  rather  rules  of substantive  law."  Again at page 143,  the  learned  author after  stating  that rebuttable presumptions of  law  though belonging  primarily  to those particular  branches  of  the substantive  law  with  which they are  concerned,  are  all connected with that part of the adjective law which is  con- cerned  with evidence, observes: "Irrebuttable  presumptions of  law,  on the other hand, belong at a  present  day  more properly to the substantive law than to the law of evidence. But they are 278 rules  of substantive law which borrow the  terminology  and adopt the guise of that branch of the law of evidence  which is  concerned  with presumptions;  and,  historically,  they originate in the period when the law, not having arrived  at the conception of a trial by the examination of the evidence produced  by  the contending parties, aimed at  obtaining  a conclusive  proof  which could settle the  controversy.   It might therefore be said that these irrebuttable presumptions have  never been part of the law of evidence, in  the  sense which  we  give  to the term "’law of  evidence"  in  modern systems of law."

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While  both  Wigmore  and  Holdsworth  seem  to  regard  all conclusive presumptions as rules of substantive law, Phipson in  his Law of Evidence says, more guardedly, that  many  of such  conclusive presumptions are rules of substantive  law. At  page 698 of his book the learned author says  :"In  many cases  these  so-called conclusive  presumptions  are  rules which belong, properly speaking, to the various branches  of substantive law and not to the law of evidence, such as  the presumption  that  an  infant under seven  is  incapable  of committing  a  felony, or that all men know the  law  (i.e., that ignorance of the law is no excuse for crime)." He  then gives  several  instances of matters  which  are  conclusive presumptions  or amount to’ conclusive evidence.  either  by statute  or common law.  But unlike Wigmore and  Holdsworth, he  does not say that all rules of  conclusive  presumptions are rules of substantive. The matter has been critically considered again by Sir James Stephen in his Digest of the Law of evidence.  After stating first (p.xiii) that all law may be divided into  substantive law,  by which rights, duties and liabilities  are  defined, and  the law of procedure, by which the substantive  law  is applied to particular cases.  Stephen says that the law  279 of  evidence  is that part of the law of  procedure,  which, with  a view to ascertain individual rights and  liaiblities in  particular cases, decides : (1) what facts may and  what may not be proved in such cases; (ii) what sort of  evidence must  be  given of a fact which may be proved and  (iii)  by whom  and  in what manner the evidence must be  produced  by which  any fact is to be proved." Speaking of  presumptions, he  says at p.xvii: "Again, I have dealt very  shortly  with the  whole subject of presumptions.  My reason is that  they also  appear  to me to belong to different branches  of  the substantive  law,  and  to  be  unintelligible,  except   in connection  with  them.  Take for instance  the  presumption that  every one knows the law.  The real meaning of this  is that, speaking generally, ignorance of the law is not  taken as an excuse for breaking it.  This rule cannot be  properly appreciated  if  it  is  treated as a part  of  the  law  of evidence.  It belongs to the Criminal Law.  In the same  way numerous   presumptions  as  to  rights  of   property   (in particular  easements and incorporeal here ditament)  belong not to the law of evidence but to the law of Real Property." After   saying  this,  the  learned  author   ’proceeds   to distinguish  certain conclusive presumptions which  in  this opinion,  may rightly be considered to form part of the  law of  evidence and observes:,,The only presumptions, which  in my  opinion, ought to find a place in the law  of  evidence, are those which relate to facts merely as -facts, and  apart from the particular rights which they constitute.  Thus  the rule, that a man not heard of for seven years is presumed to be dead, might be equally applicable to a dispute as to  the validity  of  the  marriage, an action  of  ejectment  by  a reversioner   against   a   tenant  pur   autre   vie,   the admissibility  of a declaration against interest,  and  many other  subjects.  After careful consideration, I have put  a few presumptions of this kind into a Chapter on the subject, and have passed over the 280 rest  as belonging to different branches of the  substantive law." Rules of conclusive presumptions as regards fact which may  help  to  constitute rights in  different  branches  of substantive   law  may  thus,  according  to   Stephen,   be considered  as rules of evidence.  It is unnecessary for  us to decide for the purposes of the present case whether every

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rule  that on fact is conclusive proof of another is a  rule of  substantive  law.  lb is  clear  however  that  whenever question  arises  to  whether a particular rule  is  one  of substantive  law, or of evidence, we have to ask  ourselves- does  it seek to create, or extinguish or modify a right  or liability  or  does  it concern itself  with  the  adjective function of reaching a conclusion as to what has taken place under the substantive law .In the first case, the rule is  a rule of substantive law ; in the other case, it is a rule of evidence. For,  a  rule of evidence, can be concerned  only  with  the manner and extent of presentation of facts, for the  purpose of  persuading  the  mind  of the Judge  or  jury  or  other Tribunal of the existence or nonexistence of facts on  which substantive rights or liabilities, civil or criminal  arise. It  has nothing to do with giving an answer to the  question :-What  is  the  right or a liability which  arises  on  the happening of a fact ? If a rule, purporting to be a rule  of evidence  does  in effect give such an answer, it  has  gone beyond the scope of the law of evidence and has trenched  on the domain of substantive law. On  behalf  of  the respondent it was  contended  that  even though  a rule laying down that one fact will be  conclusive proof  of another might be said to be a rule of  substantive law if the former fact was wholly irrelevant in persuading a rational  human mind about the existence of the  other,  the position is different when the former fact is "relevant"  in the’  sense  of  having some persuasive value  on  the  mind according to ordinary process of  281 reasoning.   All  that  happens, it is urged,  when  such  a "relevant"  fact  is laid down by a rule  to  be  conclusive proof of the fact to be proved is that its persuasive  value is stated by law to be hundred per cent though otherwise  it would have been lower percentage.  Such a rule according  to the respondents ought to be regarded as a rule of  evidence, just  as a rule stating merely that a fact is relevant  i.e. it  has some persuasive value, is always regarded as a  rule of  evidence.   The  argument appears to  us  to  be  wholly misconceived   Indeed,   it  appears  to  be  based   on   a misunderstanding of what the, law of evidence does.  It does not instruct the Judge as to what value an item has or ought to have.  Its task is, apart from saying on whom the burclon of proof would lie and the mode in which documents and  oral evidence will be allowed to be presented to the Tribunal, to select some of the innumerable facts which according to  the ordinary process of reasoning have-some more, some  less-an. effect  on the human mind in persuading it of the  existence of other facts, which tend to create, extinguish or modify a right  or a liability-as matters of which evidence  will  be allowed  to  be  given.  When a rule says  that  a  fact  is relevant  for proving a fact in issue, it is  merely  saying that the Court will allow evidence to be given of it.   When however  the rule goes further and says that  this  relevant fact  will be conclusive proof of a fact in issue so that  a specified  right  or liability may arise from  it,  what  is being  done  is  to directly  affect  substantive  right  or liability and is not providing for evidence only.  A rule of conclusive  peresumption  made  with  a  view  to  affect  a specified substantive right is a rule of substantive law  as it  is  intended to affect substantive right  and  does  not cease to be so because the conclusive presumption, that  is, conclusive proof of the existence of another fact, is rested on  a  fact  which  is relevant to it.   The  point  is  not relevancy but

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282 whether   the  rule  is  intended  to  affect  a   specified substantive right or to provide a method of proof Where  the purpose  of  a rule of conclusive presumption  is  that  the Judge  should on that basis hold that a specified  right  or liability  exists,  or does not exist, the  rule  is  really saying  that this particular relevant fact will  create,  or extinguish or modify the right or liability.  The  substance of the matter then is that a rule of conclusive  presumption as to the existence of a certain fact only for  establishing or disestablishing a specified substantive right results  in affecting that right and ceases to be a rule of proof It  was also said that estoppel, which is really a  rule  of conclusive  presumption,  has invariably been treated  as  a branch  of the law of evidence.  Suppose this is  so.   Does that  prove  that all rules of  conclusive  presumption  are rules of evidence ?  We have already said that some may  be. Estoppels may belong to that class.  "There is said to be an estoppel where a party is not allowed to say that a  certain statement of fact is untrue., whether in reality it is  true or  not": Halsbury’s Laws of England, 3rd Edition Vol.   XV, p. 168.  It therefore is concerned with a statement of  fact ;  it is not directed to affect any particular right  though no  doubt ultimately all estoppels do affect some rights  as all  rules of evidence do.  In so far as estoppels,  whether treated  as rules of conclusive presumption or not, are  not intended  to  affect substantive rights, they axe  rules  of evidence.  Therefore it seems to us that the contention that estoppel  is a rule of evidence does not establish that  all rules of conclusive presumption are rules of evidence. Let us come now to the impugned rule.  It lays down that the fact  that  a citizen of India has obtained on  any  date  a passport  from  the Government of another country  shall  be conclusive  proof  of his having  voluntarily  acquired  the citizenship                             283 of  that  country  before that date.  Section  -  9  of  the Citizenship  Act  (Act  No.57 of  1955)  provides  that  any citizen  of  India  who by  naturalisation  registration  or otherwise  voluntarily acquires or has at any  time  between the  26th  January, 1950, and the commencement  of  the  Act voluntarily  acquired  the citizenship  of  another  country shall  upon  such ,acquisition or as the case may  be,  such commencement cease to be a citizen of India.  This provision in  section 9 is undoubtedly a substantive law  laying  down inter  alia  that  the’ fact of  voluntary  acquisition  of, citizenship  of another country by a citizen of  India  will extinguish  his  right of citizenship of India.   Under  sub section  2  of section 9 the question whether a  person  has acquired citizenship of another country shall be determined, by a -proscribed authority which shall have regard to  pres- cribed rules of evidence.  Ordinarily such rules of evidence would,  as  already  indicated above, be  dealing  with  the question  of  the  burden  of  proof,  as  to  the  mode  of presentation  of evidence, as to the rights  of  examination and  cross-examination  and would also select  some  of  the facts  which may have a persuasive value as facts  of  which evidence  can  be given.  In dealing with the  question’  of burden  of  proof the rules may also  legitimately  raise  a rebuttable presumption, from certain facts, of this fact  of voluntary acquisition of citizenship of another country.   A rule  raising a rebuttable presumption is clearly a rule  of evidence  for its only effect is to shift the onus of  proof and  it  is not intended to affect nor does  it  affect  any particular  substantive right.  In determining the  question

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the  prescribed  authority would then have to  consider  the facts  which tend to persuade the mind that the  person  has voluntarily acquired the citizenship of another country  and also  facts which tend to show the other way,  provided  the presentation of these is not barred by the prescribed  rules of  evidence.  What happens when the rule  making  authority steps in with the rule that the obtaining of a passport of 284 another  country  will be conclusive proof of  the  fact  of voluntary  acquisition of citizenship of another  country  ? Under s, 9 the fact of voluntary acquisition. of citizenship of another country results in the extinction of his right as an  Indian citizen.  The rule therefore directly  affects  a subtantive right and, in the context of s. 9, mast be  taken to  have  been  intended  to do  so.   Such  a  rule  cannot obviously  be  a rule of evidence; it is clearly a  rule  of substantive law. Under the law as laid down in the impugned rule the fact  of obtaining  a  foreign passport will have this  result,  even though  it may very well be that though he  has  voluntarily acquired  such  a passport he has not thereby, or  for  that purpose  acquired the citizenship of another country.   This may  happen for instance, when a person who is a citizen  of India  by  reason  of descent, but is at  the  same  time  a citizen of another country, says, France by birth, obtains a passport  from the French authorities.  Again, each  country is  of course free to make its own laws.. Suppose a  foreign country  makes a law under which it can issue a passport  to one  who  is not its national.  If an Indian  takes  such  a passport,  he does not under the law of that country  become its national but under the rule now being considered, he  is to be taken as a foreign national.  The obtaining of such  a passport in either case cannot under the ordinary process of reasoning  have  any value whatsoever to show  that  he  has voluntarily  acquired foreign citizenship.  Yet,  under  the impugned  rule a passport so obtained by an Indian  national will extinguish his right of citizenship of India.’ Clearly, therefore,  the impugned rule is a rule substantive  la*  as distinct from a, rule of evidence. As  a last attempt to save the rule it was argued on  behalf of  the  respondent  that  it  is  not  really  a  rule   of irrebuttable  -presumption.  It is pointed out that  r.30(2) lays down that the central  285 Government shall in determining the’ question whether,  when or  how  a person has acquired the  citizenship  of  another country "have due regard to" the rules of evidence specified in Scheduled III.  The effect of the words "’shall have  due regard to’ it is urged, is that the Central Government would have  normally to take these rules into account but was  not strictly  bound  to  do so.  Reliance was  placed  for  this contention on the observations of Viscount Simon in Ryots of Garabandho  v. Zamindar of Parlakimadi(1).   That  authority appears  to us to be of no avail for the  interpretation  of the  words "shall have due regard to" in the  present  case. The  effect  of the words -,shall have due regard  to"  will necessarily be defferent in different contexts.  The present context  is that the deciding authority is directed to  have due regard to a rule that one fact will be conclusive  proof of another.  It is idle to contend that in this context  the deciding authority will or can disregard the rule and in the face  of  the fact which is said to be conclusive  proof  of another hold the other fact not to have been proved. it  is really unnecessary however to consider the effect  of the words "’,shall have due regard to", for as soon as it is

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hold that the Rule is void because of its being outside  the powers  of the rule-making authority any decision  in  which any regard has been paid to the rule becomes void. The  question of validity of Rule 3 of Schedule III  of  the Citizenship  Act  came up for consideration  before  several High  Courts in India.  The High Court of Madras in  Mohomed Usman v. State of Madras (2) and the Rajasthan High Court in Ghaural Hasan v. State of Rajasthan (3 ) held the Rule to be valid  ; while the Andhra Pradesh High Court in Mohd.   Khan v. Govt.  Andhra Pradesh (4) and the Allahabad High Court in Sharafat Ali Khan v. State of U.P.(5) (1)  (1943) L.R. 70 I.A. 129. 168. (2)  A.I.R. (1961) Mad. 129. (3)  A.I.R. (1951) Raj. 173. (4)  A.I.R. [1957] Andh. 1047. (5) A.I.R. [1960] All. 637. 286 held the Rule to be void.  For the reasons mentioned earlier we  are  of opinion that the view taken by the  Andhra  High Court and the Allahabad High Court is correct. The  necessary consequence of our conclusion that r.3,  Sch. III   of  the  Citizenship  Rules  is  void  is   that   the determination of the Central Government that the  petitioner has  voluntarily acquired the citizenship of Pakistan  after the  26th January, 1950 and before the 14th December,  1957, has no legal validity. Two other contentions have now to be noticed.  First, it  is said  that s.9 itself offends the Constitution as  it  takes away rights of citizenship.  It is sufficient to dispose  of this  point  to say that, if citizenship  is  a  fundamental right,  as to which doubts may legitimately be  entertained, Art.  11  authorises Parliament to make any  provision  with regard  to  acquisition  and  termination  of   citizenship. Section  9 is thus cleary within this Article.  It was  next said that s.9(2) gives unguided power to the Government  and is  therefore bad as it really amounts to an  abdication  of Parliament’s  power of legislation under Art.  I 1.  We  are unable  to  see that s.9(2) gives any  unguided  power.   It first gives the Government the power to provide an authority to  decide’  the  question whether  a  person  has  acquired foreign   citizenship.   This  gives  really  no  power   of subordinate legislation but only empower a the Government to constitute  an authority for deciding a question  which  the section  itself requires, should be decided.  So far as  the subsection gives power to frame rules of evidence, we  think there is enough guidance provided.  All that the  Government is empowered to do is to frame rules of evidence.   Whatever difficulty  there  may be in deciding whether  a  particular rule is of evidence or not, there is no vagueness about  the power given.  It is clear out and limited, for the power  is to make 287 rules  of  evidence  and nothing else.   If  that  power  is exceeded,  then, as in our. view has happened in this  case, the  exercise of the power becomes bad.  The difficulty,  if any,  in deciding what is a rule of evidence, cannot make  a power to frame rules of evidence vague or too wide. For  the disposal of the present petitions in the view  that we  have  taken however, it is necessary that  the  question whether  the petitioners have acquired  foreign  nationality should   be  considered  and  determined  by   the   Central Government  in  accordance  with law.   We  would  therefore direct the Central Government to decide the question whether the petitioners have voluntarily acquired the citizenship of Pakistan  after the 26th January, 1950, in  accordance  with

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law,  leaving  out  of account r.3 of  Sch.   III  of,’  the Citizenship Rules, 1956, and on receipt of the result to the enquiry  we would proceed with the further hearing of  these petitions. By COURT.  In accordance with the decision of the  majority, the  petitions  fail and are dismissed.  There  will  be  no Order as to costs. 288