Judgement

WANCHOO, J. : The main question that arises in this appeal on a certificate granted by the High Court of Kerala is the interpretation of the word "migrated" in Art. 7 of the Constitution. Aboobacker on whose behalf the writ petition from which this appeal has arisen was filed in the High Court was born on March 5, 1936 in the district of Kozhikode of presents who were both Indian citizens. Aboobacker left India sometime in 1948 and went to Karachi in Pakistan when he was a boy of 12 years of age. He remained in Pakistan till 1954. On March 10, 1954, he obtained a Pakistani passport and came to district Kozhikode in India on visa granted to him in September 1954. On November 1, 1954, he again left for Pakistan. In 1956 he came to India again with the same passport but on a fresh visa obtained in April 1956. He remained in India till June 1956 when he returned again to Pakistan. In the passport Abookacker s father who was dead by then was described as an Indian and Aboobacker s own nationality was given as a Pakistani and the approximate date of migration was mentioned as 1948. There was no record in Kozhikode after June 1956 as to the whereabouts of Aboobacker; but in October 1964 he was found living in the district of Kozhikode and did not have any valid travel documents. Consequently he was arrested and as case under the Indian Passport Rules 1950 was registered against him. He was released on bail thereafter and the matter was reported to the State Government. On this report the State Government passed an order on November 5, 1964 under the Foreigners Act (NO. 31 of 1946) requiring him not to remain in India. As Aboobacker was unwilling to comply with the order he was arrested and detained.

2. On November 16, 1964, a writ petition was filed on behalf of Aboobacker by the appellant in the High Court, and the contention raised therein was that Aboobacker was an Indian citizen and therefore the order passed against him under the Foreigners Act was illegal. It was prayed that the order should be quashed and Aboobacker released.

3. The petition was opposed on behalf of the State and on the facts which we have set out above and which are not in dispute now, the contention of the State was that Aboobacker ceased to be a citizen of India when the Constitution came into force by virtue of Art. 7 thereof and the consequence the order directing him to leave India under the Foreigners Act was legal and proper.

4. The main contention raised before the High Court on behalf of Aboobacker was that Art. 7 had no application in this case because migration contemplated in that Article must be with the intention to leave India permanently and settle finally in Pakistan and that as Aboobacker was a minor at the time he left India he could not be imputed with any such intention, and in any case he had no such intention because he had simply gone to Karachi in search of livelihood as he was poor. On the other hand, it was contended on behalf of the State that no such intention was necessary and that migration under Art. 7 of the Constitution simply meant the physical act of going form India to Pakistan and if any person did so whether he was minor or a major he would be covered by Art. 7 of the Constitution. Reliance was placed in the High Court on behalf of Aboobacker on a decision of this Court in Smt. Shanno Devi v. Mangal Sain, AIR 1961 SC 58. The High Court seems to have held that even if any such intention was necessary there was sufficient indication to prove that Aboobacker had such intention. The High Court did not accept the extreme argument on behalf of Aboobacker that a minor could never have any such intention. It therefore held that Aboobacker had migrated to Pakistan within the meaning of Art. 7 and was thus a foreigner within the meaning of that word in the Foreigners Act and the State Government was justified in ordering him not to remain in India, and as he was unwilling to comply with that order his arrest for the purpos