( 1 ) THIS is an application by one Sharafat Ali Khan under Article 226 of the Constitution for the issue of a writ of mandamus to compel the State of Uttar Pradesh and the District Magistrate and the Superintendent of Police of Rampur to refrain from restricting or interfering with his right as an Indian citizen to move freely throughout the territory of India by arresting or deporting him.

( 2 ) THE facts of the case are as follows. The petitioner was born on 15th January 1938 in a village in the district of Rampur. In 1955, when he was still a minor, he went with his maternal uncle to karachi, but his parents all along remained in India and have never set foot in Pakistan. In March 1956, only a couple of months after the petitioner had attained majority, his lather was murdered in Rampur, and he naturally felt impelled to return to India at once to take care of his widowed mother and his younger brother and sisters. With this object in view he secured a Pakistan passport on 16-3-1956. obtained a visa there-on from the Indian High Commissioner in Karachi 22-3-1956 and returned to India by rail on 27-3-1956. On 31-8-1957 he was served with a notice (dated 23-8-1957) from the superintendent of Police, Rampur, asking him to leave India within 30 days or to face prosecution under Section 14 of the Foreigners Act.

( 3 ) THESE basic facts are not denied in the counter-affidavit filed on behalf of the State, with this modification that according to the opposite parties the petitioner went to Pakistan in 1948 (when he was 10 years old) instead of 1955, as he alleges. This variation, however, is immaterial and does not affect the merits of the case, for whether the petitioner went to Pakistan in 1948 or in 1955, in either case he was a minor at the time when he went. His guardian (his father) remained in India and retained his Indian domicile and nationality; and during minority the petitioner had no legal capacity to acquire a domicile different from that of the guardian and could not in law migrate (as has been held by this Court in a similar case, Mst. Allah Bandi v. Govt. of Union of india, AIR 1954 All 456.

( 4 ) IT is clear therefore that the petitioner could not lose or abandon his Indian citizenship or acquire Pakistan nationality so long as he remained a minor, i. e. , up to 15-1-1956, in the absence of any action on the part of his guardian. On behalf of the State, however, it is contended that after attaining majority the petitioner must be deemed to have acquired Pakistan nationality by his own voluntary act in applying for a Pakistan passport in March 1956, and that consequently he has forfeited his Indian citizenship under Section 9 (1) of the Citizenship Act, In this connection reliance is placed on the provisions of Clause 3 of Schedule III of the Citizenship rules, 1956, which runs as follows;

"the fact that a citizen 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. "

Mere acquisition of a foreign passport would normally be considered sufficient only to raise a re-buttable presumption of voluntary acquisition of foreign citizenship, but under Clause 3 of schedule III must be taken as conclusive irrebuttable proof. This abnormal rule of evidence however can be considered to be binding only on the Central Government, as is clear from the wording of Rule 30 (2) of the aforesaid Rules; and in my opinion this Court is in no way bound to decide questions of voluntary acquisition of foreign citizenship in this arbitrary fashion. A similar view has been expressed by Mathur J. in Ali Sher v. The State, 1959 All LJ 833: (AIR 1960 All 431 ).

( 5 ) FURTHERMORE Clause 3 of Schedule III of the Citizenship Rules appears to give rise to an arbitrary and unreasonable abridgment of the fundamental rights guaranteed to all Indian citizens and is therefore by virtue of Article 13 (2) of t