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IN THE HIGH COURT OF ALLAHABAD
D. P. Uniyal and T. Ramabhadran, JJ.
KHALIL AHMAD - Appellant
Versus
STATE OF U.P. - Respondents
Criminal Revn. 959 Of 1960
Decided On : 05/12/1961
CITIZENSHIP - FOREIGNERS ACT - PAKISTAN CITIZENSHIP ACT - FOREIGNERS ORDER - REGISTRATION OF FOREIGNERS RULES - INTERPRETATION - APPLICABILITY - VALIDITY - CENTRAL GOVERNMENT'S POWER TO DETERMINE CITIZENSHIP - RULES OF EVIDENCE - PASSPORT AS CONCLUSIVE PROOF OF VOLUNTARY ACQUISITION OF CITIZENSHIP - APPLICANT'S STATUS AS NATURAL BORN BRITISH SUBJECT - EFFECT OF INDIAN INDEPENDENCE ACT - PAKISTANI PASSPORT AS EVIDENCE OF ALLEGIANCE TO PAKISTAN GOVERNMENT - VALIDITY OF FOREIGNERS ORDER AND REGISTRATION OF FOREIGNERS RULES - REQUIREMENT OF PERMIT FOR FOREIGNERS - APPLICANT'S CONVICTION UNDER SECTION 14 OF FOREIGNERS ACT - IMPROPER WITHOUT CENTRAL GOVERNMENT'S DECISION ON CITIZENSHIP.
Fact of the Case:
The applicant, born in India of Indian parents, left for Pakistan in 1950 after the Constitution came into force. He arrived in India in 1957 on a Pakistani passport and visa, but did not obtain a permit from the civil authorities and continued to stay in India beyond the expiry of the visa. He was convicted under Section 14 of the Foreigners Act for breach of the Foreigners Order.
Finding of the Court:
The court held that the question of citizenship could only be decided by the Central Government under Section 9(2) of the Citizenship Act and that the applicant could not be prosecuted without a decision from the Central Government. The court also held that the rules of evidence in Clause 3 of Schedule III of the Citizenship Rules were not violative of Article 19 of the Constitution and that the Central Government had the power to determine citizenship in accordance with those rules. Furthermore, the court found that a foreigner who did not obtain a permit as required by Paragraph 7 of the Foreigners Order rendered themselves liable under Section 14 of the Foreigners Act.
Issues: 1. Whether the question of citizenship can be decided by the Central Government or by the law courts? 2. What is the effect of clause (iii) of Schedule III of the Citizenship Rules of 1956? 3. Does a person contravene Section 14 of the Foreigners Act if he does not obtain a permit and stays in India beyond the date mentioned in the visa?
Ratio Decidendi: 1. The court held that the question of citizenship could only be decided by the Central Government under Section 9(2) of the Citizenship Act and that the applicant could not be prosecuted without a decision from the Central Government. 2. The court held that the rules of evidence in Clause 3 of Schedule III of the Citizenship Rules were not violative of Article 19 of the Constitution and that the Central Government had the power to determine citizenship in accordance with those rules. 3. The court found that a foreigner who did not obtain a permit as required by Paragraph 7 of the Foreigners Order rendered themselves liable under Section 14 of the Foreigners Act.
Final Decision: The court answered the questions referred to it as follows: 1. The question of citizenship can only be decided by the Central Government in accordance with Section 9(2) of the Citizenship Act. 2. The rules of evidence framed in Clause 3 of Schedule III of the Citizenship Rules, 1956 are not violative of Article 19 of the Constitution and the Central Government has power to determine the question of citizenship in accordance with those rules. 3. If a foreigner does not obtain a permit as required by Paragraph 7 of the Foreigners Order, 1948 he renders himself liable under Section 14 of the Foreigners Act.
( 1 ) THE following questions have been referred to us for decision : (1) Whether the question of citizenship can be decided by the Central Government or by the law courts ? (2) What is the effect of clause (iii) of Schedule III of the Citizenship Rules of 1956? (3) Does a person contravene Section 14 of the Foreigners Act if he does not obtain a permit and stays in India beyond the date mentioned in the visa?
( 2 ) THE above reference; has arisen out of a revision petition filed by Khalil Ahmad against his conviction and sentence under Section 14 of the Foreigners Act, 1946. The applicant was born in india of Indian parents who were domiciled in the country. He left India for Pakistan in March, 1950 after the Constitution had come into force. Thereafter he arrived in India under a Pakistani passport No. 09531 dated 9-1-1953 bearing Indian, visa No. 546 of Category c dated 3-1-1957 issued by the Indian High Commissioner in Pakistan at Karachi. The visa was valid up till the 25th April, 1957. The applicant entered India on the 25th January 1957 on the basis of the passport and the visa mentioned above. He, however, did not obtain any permit from the civil authorities and continued to stay in India even after the expiry of the period mentioned in the visa. He was, therefore, prosecuted for breach of Para 7 of the Foreigners Order 1948 and convicted under section 14 of the Foreigners Act. He preferred am appeal from his conviction and sentence to the sessions Judge of Bareilly which was dismissed. Thereupon he moved this Court by means of a revision application and contended that he was not a foreigner within the meaning of the fo-reigners Act. His case was that he was an Indian citizen at the time when he went to Pakistan within the meaning of Article 5 of the Constitution.
( 3 ) IN order to appreciate the arguments of the learned counsel it is necessary to set out the various provisions of the Constitution bearing on this matter.
( 4 ) ARTICLE 5 defines the persons who constitute citizens of Jndia at the commencement of the constitution. Article 5 is in these terms:
"at the commencement of this Constitution every person who has his domicile in the territory of india and (a) who wasborn in the territory of India ; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India, for not less than five years immediately preceding such commencement, shall be a citizen of India". Article 7 says that if a person had gone from the territory of India to the territory now included in Pakistan after 1st March, 1947 with the intention of migrating from India to Pakistan, he would lose his citizenship of India which might have accrued to him by reason of Article 5 of the constitution. Thus Articles 5 and 7 have to be read together. Article 7 is really in the nature of a proviso to Article 5. Article 9 is of some importance and reads thus : "no person shall be 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 11 is as follows : "nothing in the foregoing provisions of this Part (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".
( 5 ) IT would appear that the purport of Article 9 is that if a person has voluntarily acquired the citizenship of any Foreign State he would not be considered or deemed to be a citizen of India by birth or by reason of domicile. Article 9 refers to the voluntary acquisition of the citizenship of any foreign State before the commencement of the Constitution and not after the coming into force of the Constitution. In other words, a person of Indian domicile would be deemed to be a foreigner if he has acquired the citizenship of a foreign State before the 26th J
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