Syed Abrarul Hassan: Habib Hidayatullah vs Union Of India

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1962 Supreme(SC) 69

SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, A.K. SARKAR, K.N. WANCHOO, K.C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR JJ.
1. Izhar Ahmad Khan (in Petn. No. 101 of 59), 2. Syed Abrarul Hassan (in Petn. No. 136 of 59) and 3. Habib Hidayatullah (in Petn. No. 88 of 61) Petitioners
Versus
Union of India and others (in all the three petitions), Respondents.
Petns. Nos. 101 and 136 of 1959 and 88 of 1961.
16th February, 1962
Advocates appeared
Mr. Veda Vyasa, senior Advocate (Mr. Naunit Lal, Advocate, with him), for Petitioner.
In Petn. No. 101 of 59.
M/s. B. R. L. Iyengar and T. M. Sen, Advocates, for Respondent No. 1.
In Petn. No. l36 of 59.
M/s. Dipak Datta Choudhri and T. M. Sen, Advocates, for Respondent (No. l).
In Petns. Nos. 101 and 136 of 59.
M/s.B. K.B. Naidu and I. N. Shroff, Advocates, for Respondents (Nos. 2 and 3).
In Petn No. 88 of 61.
M/s. Daniel, A. Latifi and Sardar Bahadur, Advocates, for Petitioner.
In Petn. No. 88 of 61.
Mr. A. V. Viswanatha Sastri, Senior Advocate. 1055
(M/s.K. B. Mehta and R. H. Dhebar, Advocates, with him), for Respondent No. 1.
In Petn. No. 88 of 61.
M/s. B. R. L. Iyengar and R. H. Dhebar, Advocates, for Respondent No. 2

Advocates:
A.LATIFI SARDAR BAHADUR, A.V.VISHWANATHA SASTRI, B.B.IYENGAR, B.K.B.Naidu, B.R.L.Iyengar, DANIAL LATIF, DIPAK DATTA CHAUDHURI, K.B.MEHTA, N.Shroff, NAUNIT LAL, R.H.Dhebar, T.M.SEN, Veda Vyasa

Headnote:VALIDITY OF PROVISIONS OF THIS SECTION - RULES PRESCRIBING IRREBUTTABLE PRESUMPTIONS WHERE A PERSON RETURNS TO INDIA ON A VISA OF PAKISTAN OBJECT OF ARTICLE 11—SOVEREIGN RIGHT OF PARLIAMENT ON CITIZENSHIP—ALL CONNECTED MATTERS NOT IMPAIRed BY REST OF PROVISIONS OF PART II - CITIZENSHIP TERMINATED CANNOT CLAIM RIGHTS UNDER ARTICLE 19 - CITIZENSHIP ITSELF NOT A FUNDAMENTAL RIGHT - CITIZENSHIP TERMINATED CANNOT CLAIM RIGHTS UNDER ARTICLE 19 - CITIZENSHIP—ITSELF NOT A FUNDAMENTAL RIGHT - CITIZENSHIP TERMINATED CANNOT CLAIM RIGHTS UNDER ARTICLE 19 - CITIZENSHIP—ITSELF NOT A FUNDAMENTAL RIGHT - PASSPORT AS PROOF OF THE HOLDER OF NATIONALITY — AMERICAN AND BRITISH LAW - WHERE A PERSON ENTERS INDIA ON A PASSPORT OBTAINED FROM THE PAKISTAN GOVERNMENT ON A DECLARATION THAT HE IS A PAKISTANI CITIZEN — HELD PRIMA FACIE HE IS A CITIZEN OF PAKISTAN AND THAT COUNTRY WOULD BE ENTITLED TO CLAIM THE APPLICANT AS ITS OWN CITIZEN - CITIZENSHIP ACT 1955, SECTION 9(2) - RULES PRESCRIBING IRREBUTTABLE PRESUMPTIONS WHERE A PERSON RETURNS TO INDIA ON A VISA OF PAKISTAN OBJECT OF ARTICLE 11—SOVEREIGN RIGHT OF PARLIAMENT ON CITIZENSHIP—ALL CONNECTED MATTERS NOT IMPAIRed BY REST OF PROVISIONS OF PART II - CITIZENSHIP TERMINATED CANNOT CLAIM RIGHTS UNDER ARTICLE 19 - CITIZENSHIP—ITSELF NOT A FUNDAMENTAL RIGHT
       -held, if citizenship is validly terminated by statute, person cannot claim fundamental right under Article 19.
       -held, status of citizenship on which fundamental rights rest., is itself not a fundamental right.
       -held, if citizenship is validly terminated by statute, person cannot claim fundamental right under Article 19.
       -held, status of citizenship on which fundamental rights rest, is itself not a fundamental right.
       -held, if citizenship is validly terminated by statute, person cannot claim fundamental right under Article 19.
       -held, status of citizenship on which fundamental rights rest., is itself not a fundamental right.
       -held, if citizenship is validity terminated by statute, a person cannot claim fundamental right under Article 19.
       -held, status of citizenship on which fundamental rights rest, is itself not a fundamental right.
       -held, in the light of principles of the Act, it cannot be said that there was no abdication of essential legislative functions to the rule-making authority.
       -held, if citizenship is validly terminated by statute, person cannot claim fundamental right under Article 19.
       -held, status of citizenship on which fundamental rights rest., is itself not a fundamental right.

Judgment

GAJENDRAGADKAR, J.: (Majority judgment: on behalf of himself, Wanchoo and Rajagopala Ayyangar JJ,) 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 (I ) (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 Citizenship 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 the material facts on which the three petitions are based.

2. 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 was 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 S. 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, Iqbal Ahmad moved the Court of the Judicial 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 finding in his favour. He, however, observed that the petitioner was in Pakistan in May and June, 1952, and he came to the conclusion that since he had contravened the provisions of S. 3 of the Influx from Pakistan (Central) Act, he was liable to be removed physically from India under S. 7 of the said Act.

3. Having gone to Pakistan much against his will, the petitioner tried to obtain the help of the High Commissioner of India for returning to 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, S. 7 of the Influx Act was declared void by this Court. In consequence, the petitioner began to press his application for permanent settlement in India and along 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 Superintended 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 S. 3 (2) (c) 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 originally filed by him, the petitioner s contention was that be was not a foreigner within the meaning of the Foreigners Act and be challenged the validity of be relevant operative sections of the said Act.

4. After notice was served on the Union of India be State of Madhya Pradesh and he District Superintendent

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