Judgment

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 has appealed to this Court.

2. 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 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.

3. 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 R. 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 had not been given, 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. "

4. 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.

5. 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 commencement was deemed a citizen of India. By virtue of cl. (3) of Art. 1 the territo