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PETITIONER: MOHD.  AYUB KHAN

       Vs.

RESPONDENT: COMMISSIONER OF POLICE, MADRAS AND ANOTHER

DATE OF JUDGMENT: 05/02/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SUBBARAO, K. WANCHOO, K.N. HIDAYATULLAH, M. SIKRI, S.M.

CITATION:  1965 AIR 1623            1965 SCR  (2) 834  CITATOR INFO :  D          1967 SC1143  (5)  R          1971 SC1382  (12)  F          1973 SC 974  (10)  R          1975 SC 972  (19)  R          1988 SC1353  (18)  D          1991 SC1886  (7,12)

ACT: Indian  Citizenship  Act,  1955-Determination  of   disputed citizenship by Central Government under s. 9(2)-Enquiry  for that  purpose under Rule 30 of the Citizenship Rules,  1956, whether quasi-judicial proceeding -Reasonable opportunity to affected  person  whether  necessary validity of  s.  9  and paragraph 3 of Schedule III to the Rules.

HEADNOTE: The  appellant  was ordered by the  Commissioner  of  Police Madras  to  leave India because he had obtained  a  Pakistan passport  and  had thereby become the citizen of  a  foreign country.   He made an application to the Central  Government under  s. 9(2) of the Indian Citizenship Act, 1955  for  the determination  of his citizenship.  The  Central  Government rejected his claim to Indian Citizenship without giving  him a  hearing.  The appellant thereupon filed a  writ  petition before the High Court in which he challenged the validity of s. 9 of the Citizenship Act and also that of Paragraph 3  of Sch.   III to the Citizenship Rules, 1956.  The  High  Court rejected  these contentions and also his further  contention that  the  enquiry prescribed by R. 30  of  the  Citizenship rules conducted by the Central Government for the purpose of a  decision  under s. 9(2) is a  quasi-judicial  process  in which  a reasonable opportunity to the affected  citizen  to prove  his  case is necessary With  certificate  of  fitness granted by the High Court the appellant came to this Court. HELD(i)  If voluntary acquisition of citizenship of  another country determines Indian Citizenship within the meaning  of s.  9(1)  and by virtue of paragraph 3 of Sch.  III  of  the Citizenship  Rules  a conclusive  presumption  of  voluntary acquisition of citizenship is to be raised from the  obtain-

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ing of a passport from the Government of any other  country, it  would be implicit that the obtaining of a  passport  was the result of the exercise of free volition by the  citizen. This view is strengthened by the scheme of s. 9(2) read with Rule  30  which  contemplates an  enquiry  by  an  authority prescribed  under  sub-s.  (2)  for  determination  of   the question  whether  citizenship of another country  has  been acquired by an Indian Citizen. [892 D-E] (ii)Determination of the question as to whether, when,  and how  foreign  citizenship has been  acquired  postulates  an approach  as  in  a  quasijudicial  enquiry  :  the  citizen concerned  must  be given due notice of the  nature  of  the action   which  in  the  view  of  the  authority   involves termination   of   Indian   Citizenship,   and    reasonable opportunity must be afforded to the  citizen to convince the authority that what is alleged against him is not true. [891 B-D] (iii)Obtaining  of  a  passport of  a  foreign  country cannot  in  all cases mean merely  receiving  the  passport. Cases  may  be visualised in which on account  of  force  or fraud  a  person  may be compelled or induced  to  obtain  a passport  from a foreign country.  It would be difficult  to say  that  in such a case the passport has  been  ’obtained’ within the meaning of paragraph 3 of Sch.  Ill. [891 G-H] (iv)The  question  whether  the  passport  was  voluntarily obtained   cannot  be  decided  by  the   foreign   country, representative of which issues 885 a  passport; and mere issue of a passport may not always  be regarded  decisive  of the question that  the  passport  was voluntarily  obtained.  Section (2) read with r. 30  confers the  power  to  determine  whether  Indian  Citizenship   is terminated  upon the specified authority, and in  exercising that power the authority is guided by the statutory rules of evidence.  It would beimpossible to hold that termination of Indian Citizenship depends upon theaction of a  foreign country in issuing the passport. [892 F-G] (v)  The appellant was not given opportunity by the  Central Government to prove his case that the Pakistan passport  had not   been  voluntarily  obtained  by  him.    The   Central Government had therefore to re-determine the question of his citizenship  after  giving him an opportunity to  prove  his case. [893 A-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 250 of 1964. Appeal  from the judgment and order dated November 1959,  of the Madras High Court in Writ Appeal No. 46 of 1959. P.   Ram Reddy and A. V. V. Nair, for the appellants. A.   Ranganadham   Chetty   and  A.  V.  Rangam,   for   the respondents. S.V. Gupte, Solicitor-General, and R. H. Dhebar, for  the intervener. The Judgment of the Court was delivered by Shah J. The appellant Mohd.  Ayub Khan petitioned the,  High Court  of  Madras  for a writ of  mandamus  restraining  the Commissioner of Police, Madras, from taking action  pursuant to  the order of the Government of Madras, Home  Department, No. 83546, dated May 28, 1958 and from interfering with  the appellant’s rights as a citizen of India.  The petition  was dismissed  by  Balakrishna  Ayyar, J.,  and  the  order  was confirmed  in appeal by a Division Bench of the High  Court. With  certificate granted by the High Court,  the  appellant

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has appealed to this Court. The appellant, who claims that he had acquired the status of an  Indian citizen on the commencement of, the  Constitution as  a  person  who  had  been  ordinarily  resident  in  the territory of India for not less than five years  immediately preceding that date, was served with a notice dated July 17, 1957 informing him that as he had obtained Pakistan Passport No. 071377, dated April 1, 1953 he should leave India within one  month  from the date of service of the notice,  and  in default  of compliance he would be prosecuted  and  deported from India under the Foreigners Act, 1946 as amended by  the Foreigners  Law (Amendment) Act, 1957.  On August 19,  1957, the  appellant  applied  to  the  Collector  of  Madras  for registration as a citizen of India.  Later he applied 886 to the Central Government under S. 9 (2) of the  Citizenship Act, 1955 to determine the question whether he continued  to remain  a citizen of India, and prayed that he may be  given an opportunity to produce all "necessary evidence in support of  his  claim  as  regards  Indian  citizenship".   Without affording  him that opportunity, however, the Government  of India  by order, dated May 7, 1958 rejected the  application of the appellant under s. 9 of the Citizenship Act. In  support of his petition before the High Court for  issue of a writ of mandamus, the appellant urged that s. 9 of  the Citizenship Act, 1955 was ultra vires the Parliament and cl. 3 of Sch.  III to the Citizenship Rules was also ultra vires the Central Government, and that in any event Rule 30 of the Citizenship  Rules contemplated a quasi-judicial inquiry  in which an opportunity must be given to the party sought to be affected, to make a representation and to adduce evidence to show  that  the  acquisition of a  passport  from  the  High Commissioner  for Pakistan was not  voluntary.   Balakrishna Ayyar, J., rejected these contentions.  In dealing with  the question  whether  the order of the Central  Government  was unenforceable  because opportunity to prove the  appellant’s case   that   he  had  not  voluntarily   renounced   Indian citizenship,  the learned Judge observed that the  appellant "had  not  indicated  on what points  he  intended  to  lead evidence and what kind of evidence he intended to adduce". In  appeal  the High Court held that the appellant  "had  in fact  made a declaration on the basis of which the  passport was  obtained and the allegations made by him did  not  even imply  that he was forced to make a false declaration".   In the view of the High Court s. 9 lays "down an objective test and when the individual had ’brought himself within it,  the law  determines  the legal consequences  of  the  situation, independently of his intent or understanding", and therefore there  was no scope for an enquiry of the nature claimed  by the appellant. Before dealing with the arguments raised by counsel for  the appellant   in  this  appeal,  certain  constitutional   and legislative  provisions which have a bearing thereon may  be set  out.  Part II of the Constitution deals with the  topic of citizenship.  By Art. 5 a person who at the  commencement of  the  Constitution had his domicile in the  territory  of India and who was born in the territory of India, or  either of whose parents was born in the territory  of India, or who had  been ordinarily resident in the territory of India  for not less than five years immediately preceding such 887 commencement  was deemed a citizen of India.  By  virtue  of cl.  (3) of Art.  1 the territory of India is  comprised  of the States, the Union territories and such other territories as may be acquired.  Article 6 deals with the acquisition of

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rights of citizenship of persons who have migrated to  India from  Pakistan,  and  Art.  7  deals  with  the  rights   of citizenship  of migrants to Pakistan.  Article 8 deals  with the  rights  of  citizenship of certain  persons  of  Indian origin residing outside India.  Article 9 provides :               "No  person  shall be a citizen  of  India  by               virtue  of  article 5, or be deemed  to  be  a               citizen  of  India by virtue of article  6  or               article 8, if he has voluntarily acquired  the               citizenship of any foreign State." Article 10 provides that every person who is or is deemed to be a citizen of India under any of the foregoing  provisions shall, subject to the provisions of any law that may be made by  Parliament,  continue to be such citizen.   By  Art.  11 Parliament  is authorised to make provision with respect  to the acquisition and termination of citizenship and all other matters  relating  to  citizenship.   Article  367  cl.  (3) defined a "foreign State" as any State other than India, but the President was by the proviso thereto authorised, subject to the provisions of any law made by Parliament, to  declare by  order  any  State not to be a  foreign  State  for  such purposes as may be specified in the order.  By a declaration made  under  the  Constitution (Declaration  as  to  foreign States)  Order, 1950, it was declared that, subject  to  the provisions  of  any law made by  Parliament,  every  country within  the Commonwealth was not to be a foreign  State  for the  purpose of Art. 9 of the Constitution.  Pakistan  could not  therefore  be  regarded  as  a  foreign  State,   until legislation  was enacted by Parliament to the contrary.   In 1955  the Parliament enacted the Citizenship Act 57 of  1955 to  provide  for the acquisition and termination  of  Indian citizenship.    The   Act  made  detailed   provisions   for acquisition   of  citizenship  by  birth,  by  descent,   by registration,  by  naturalisation and  by  incorporation  of territory  in  ss.  3 to 7 of the Act.  In ss. 8,  9  &  1.0 provision   was  made  for  renunciation,  termination   and deprivation of citizenship.  By s. 9 it was enacted that :               "(1)    Any   citizen   of   India   who    by               naturalisation,   registration  or   otherwise               voluntarily  acquires  or  has  at  any   time               between  the 26th January, 1950 and, the  com-               mencement  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               Sup./65-11               888               "Provided  that  nothing in  this  sub-section               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 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." By  S. 18(1) the Central Government was authorised  to  make rules, Inter alia, for setting up the authority to determine the  question  of  acquisition  of  citizenship  of  another country, and the procedure to be followed by such  authority

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and  rules of evidence relating to such cases.  In  exercise of the authority under s. 18(1) the Citizenship Rules,  1956 were  framed  by the Central Government and they  came  into force on July 7, 1956.  By Rule 30, it was provided :               "(1)  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  section  9(2),  be  the  Central               Government.               (2)The   Central   Government   shall    in               determining any such question have due  regard               to the rules of evidence specified in Schedule               HI."               Schedule III set out the rules referred to  in               Rule 30 (2).  Clauses 1, 2 and 3 are material               "1. Where it appears to the Central Government               that  a  citizen  of  India  has   voluntarily               acquired the citizenship of any other country,               it may require him to prove within such period               as may be fixed by it in this behalf, that  he               has not voluntarily acquired the  citizenship.               of that country and the burden of proving that               he has not so acquired such citizenship  shall               be on him.               "2.   For  the  purpose  of  determining   any               question  relating  to the acquisition  by  an               Indian citizen of the citizenship of any               other country, the Central Government may make               such reference as it thinks fit in respect  of               that  question  or  of  any  matter   relating               thereto, to its Embassy in that country or  to               the Government of               889               that   country  and  act  on  any  report   or               information  received  in  pursuance  of  such               reference.               "3.  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." Acquisition  of citizenship at the commencement of the  Con- stitution  was governed by Arts. 5, 6 and 7. If, however,  a person  had  voluntarily acquired citizenship of  a  foreign State he could not claim the status of a citizen under  Art. 5,  and he could not be deemed to be a citizen by virtue  of Art.  6  or  Art. 8. Article 10 continues,  subject  to  the provisions of any law to be made by Parliament, the right of citizenship  acquired  or deemed to be  acquired  under  the foregoing   Articles.    Power  of   Parliament   to   enact legislation   to   make  provision  with  respect   to   the acquisition and termination of citizenship is as a matter of abundant caution affirmed by Art.  11. The Parliament by  s. 9  of  the  Citizenship Act, 1955 legislated  in  regard  to determination of citizenship and provided, inter alia,  that a person who has voluntarily acquired since January 26, 1950 or acquires after the commencement of the Act citizenship of another  country, shall cease to be a citizen of India,  and that  if  any question arises as to whether  citizenship  of another country has been acquired by a person, the  question must  be  determined by the authority, in  such  manner  and having  regard  to  such  rules  of  evidence,  as  may   be prescribed in that behalf.

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This Court has pronounced upon the legislative competence of the Parliament to enact s. 9 of the Citizenship Act, 1955 in Izhar  Ahmad  Khan v. Union of India(1).  In the  same  case challenge  to  the validity of Rule 3 of Sch.   III  to  the Rules  framed  under  the Citizenship  Act,  1955  was  also negatived.   Mr. Ram Reddy for the appellant contended  that as certain important aspects of the plea of invalidity  were not presented before the Court at the hearing of Izhar Ahmad Khan’s  case(1),  we should again proceed  to  consider  the challenge to the validity of Rule 3 of Sch.  HI and s. 9  of the  Citizenship  Act limited to those  arguments.   We  are unable, however, to countenance the submission.  This  Court has  held  on the arguments presented before  the  Court  in lzhar Ahmad Khan’s case(1) that s. 9 of the Act was  validly enacted by the Parliament, and that Rule 3 of Sch.  III  was competently  made by the Central Government in  exercise  of the (1)  [1962] Supp. 3 S.C.R. 235. 890 powers conferred by s. 18 of the Citizenship Act.   Assuming that certain aspects of the question were not brought to the notice of the Court, we see no grounds for entering upon re- examination of the question.  It may be pointed out that the judgment  of  the Court in Izhar Ahmad  Khan’s  case(1)  was followed  by this Court in the Government of Andhra  Pradesh v. Syed Mohd.  Khan(2). The question which survives for determination is whether the appellant  ran  challenge the validity of the order  of  the Commissioner  of  Police pursuant to the order made  by  the Central  Government  under s. 9 (2) of the Act on  the  plea that he had not " voluntarily obtained" a passport from  the High Commissioner for Pakistan in India.  In the petition as originally filed, the Union of India was not impleaded as  a party-respondent  and  on the state of authorities  then  in force the appellant could not implead the Union of India  as a party-respondent to the petition filed by him in the  High Court of Madras.  When this appeal was beard on December  7, 1964,  notice was issued calling upon the Union  to  produce the orders and proceedings under S. 9(2) of the  Citizenship Act relating to the case of the appellant.  Pursuant to  the direction  the  relevant  proceedings and  order  have  been produced  and  an  affidavit has been  filed  by  the  Under Secretary in the Ministry of Home Affairs.  It is now common ground  that in the inquiry contemplated by Rule 30  of  the Citizenship  Rules,  no  opportunity  was  afforded  to  the appellant  to  prove his case that he had not  obtained  the passport   voluntarily  from  the  High   Commissioner   for Pakistan.  Section   9(1)   of  the  Citizenship  Act   provides   for termination  of citizenship of an Indian citizen if  he  has (subject   to  the  proviso  which  is  not   material)   by naturalisation,   registration  or  otherwise,   voluntarily acquired  citizenship  of another country.  Subject  to  the exception   in   the   proviso   therefore   naturalisation, registration  or  acquisition  of  citizenship  of   another country  operates  to terminate the  citizenship  of  India. Acquisition  of citizenship of another country to  determine Indian citizenship must however be voluntary.  By sub-s. (2) provision  is made for setting up an authority to  determine the  question  where, when and how  citizenship  of  another country  has  been  acquired, and by  Rule  30  the  Central Government is designated as the authority which is  invested with.  power to determine the question in such  manner,  and having   regard  to  such  rules  of  evidence  as  may   be prescribed.   Provision for prescribing rules  of  evidence,

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having  regard  to  which the  question  of  acquisition  of citizenship of another country has to be (1) [1962] Supp. 3 S.C.R. 235. (2) [1962] Supp. 3 S.C.R. 288. 891 determined,  clearly indicates that the order is not  to  be made  on  the  mere satisfaction of  the  authority  without enquiry, that the citizen concerned has obtained a  passport of another country.  The question as to whether when and how foreign  citizenship has been acquired has to be  determined having  regard  to  the rules of  evidence  prescribed,  and termination  of Indian citizenship being the consequence  of voluntary acquisition of foreign citizenship, the  authority has also to determine that such latter citizenship has  been voluntarily   acquired.   Determination  of   the   question postulates an approach as in a quasi-judicial enquiry :  the citizen concerned must be given due notice of the nature  of the  action  which  in the view of  the  authority  involves termination   of   Indian   citizenship,   and    reasonable opportunity must be afforded to the citizen to convince  the authority  that  what is alleged against him  is  not  true. What  the scope and extent of the enquiry to be made by  the authority  on a plea raised by the citizen concerned  should be, depends upon the circumstances of each case. Paragraph 1 of Sch.  III which raises a rebuttable  presump- tion,  when  it  appears to the Central  Government  that  a citizen has voluntarily acquired foreign citizenship,  casts the  burden  of  proof upon the  citizen  to  disprove  such acquisition,  and Paragraph 2 which authorises  the  Central Government to make enquiries for the purpose of  determining the  question  raised, strongly support the  view  that  the Central Government must arrive at a decision that the Indian citizen has voluntarily acquired foreign citizenship, before action  can  be taken against him on the  footing  that  his citizenship is terminated.  Paragraph 3 raises a  conclusive presumption  that  a  citizen of India who  has  obtained  a passport from a foreign country on any date, has before that date voluntarily acquired citizenship of that other  county. By the application of the rule in Paragraph 3 the  authority must regard obtaining of a foreign passport on a  particular date  as  conclusive  proof  that  the  Indian  citizen  has voluntarily  acquired citizenship of another country  before that date.  But obtaining of a passport of a foreign country cannot in all cases merely mean receiving the passport.   If a plea is raised by the citizen that he had not  voluntarily obtained  the  passport,  the citizen must  be  afforded  an opportunity to prove that fact.  Cases may be visualized  in which  on account of force a person may be compelled  or  on account  of  fraud or misrepresentation be may  be  induced, without   any  intention  of  renunciation  of  his   Indian citizenship,  to obtain a passport from a  foreign  country. It  would  be difficult to say that such a passport  is  one which has been "obtained" within the 892 sumption  must  arise  that  he  has  acquired   voluntarily citizenship of that country. We  are  not  concerned  in this  case  with  the  truth  or otherwise  of  the  plea  raised by  the  appellant  in  his petition  before  the High Court that he  was  compelled  to obtain the passport from the High Commissioner for Pakistan. Balakrishna  Ayyar,  J.,  observed  that  the  plea  of  the appellant was not bona fide.  But it is not the function  of the courts to determine the question whether the plea raised is true or not : it is for the authority invested with power under  s. 9(2) to determine that question if it  is  raised.

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The High Court in appeal was of the view that s. 9 laid down an  objective test and once it was found that  the  passport was  obtained  in  fact by an Indian  citizen  from  another country,  the law determined the legal consequences of  that conduct  and  no question of his  "intent  or  understanding arose".   We  are  unable  to  agree  with  that  view.   If voluntary  acquisition  of citizenship  of  another  country determines Indian citizenship within the meaning of s. 9(1), and  by virtue of Paragraph 3 of Sch.  III of the,  Citizen- ship Rules a conclusive presumption of voluntary acquisition of  citizenship  is  to be raised from the  obtaining  of  a passport from the Government of any other country, it  would be implicit that the obtaining of a passport was the  result of the exercise of free volition by the citizen.  This  view is strengthened by the scheme of s. 9 (2) read with Rule  30 which  contemplates  an enquiry by an  authority  prescribed under  sub-s. (2) for determination of the question  whether citizenship  of  another  country has been  acquired  by  an Indian citizen. Counsel for the State of Madras submitted that the  question whether  the  passport  was  voluntarily  obtained  must  be decided  by  the foreign country,  representative  of  which issues  the passport, and mere issue of a  foreign  passport must always be regarded as decisive of the question that the passport  was voluntarily obtained.  But s. 9(2)  read  with Rule  30  confers  the power  to  determine  whether  Indian citizenship is terminated upon the specified authority,  and in  exercising  that power the authority is  guided  by  the statutory rules of evidence.  It would be impossible to hold that  termination of Indian citizenship depends upon  action of a foreign country in issuing the passport. We  are  therefore of the view that the High  Court  was  in error  in  holding that the decision of  the  Government  of India  without  giving an opportunity to  the  appellant  to prove  his case that he had been compelled by the police  to obtain a passport from the                             893 High  Commissioner  for Pakistan will sustain the  order  of deportation  against  the appellant.  It will of  course  be open  to  the Central Government to  determine  whether  the appellant  has lost the citizenship of India by  voluntarily acquiring  the  citizenship  of  Pakistan  by  obtaining   a passport from the High Commissioner, for Pakistan, or in any other  manner.   But  the  determination  must  be  made  in accordance with law. The  appeal is allowed, and it is ordered that the order  of deportation  passed  by the Commissioner of  Police,  Madras shall   not  be  enforced  until  the   Central   Government determines the status of the appellant according to law.  No order as to costs. Appeal allowed. 894