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IN THE HIGH COURT OF ALLAHABAD
V. Bhargava and J. N. Takru, JJ.
ASLAM KHAN - Appellant
Versus
FAZAL HAQUE KHAN - Respondents
First Appeal 110 Of 1958
Decided On : 07/21/1958
ELECTION LAW - CITIZENSHIP - REGISTRATION AS CITIZEN OF INDIA - VALIDITY - CONDITIONS FOR REGISTRATION - INTERPRETATION OF SECTION 5 OF THE CITIZENSHIP ACT, 1955 - EFFECT OF MIGRATION TO PAKISTAN ON CITIZENSHIP - APPLICABILITY OF ARTICLE 7 OF THE CONSTITUTION - DISTINCTION BETWEEN CITIZENSHIP AND NATIONALITY - MEANING OF CITIZEN IN RELATION TO A COUNTRY SPECIFIED IN THE FIRST SCHEDULE - REQUIREMENT OF NOTIFICATION BY THE CENTRAL GOVERNMENT DECLARING AN ENACTMENT OF A FOREIGN COUNTRY AS AN ENACTMENT MAKING PROVISION FOR CITIZENSHIP OR NATIONALITY OF THAT COUNTRY - EFFECT OF ABSENCE OF SUCH NOTIFICATION - INTERPRETATION OF SECTION 2(1)(B) AND 2(1)(C) OF THE CITIZENSHIP ACT, 1955.
Fact of the Case:
The appellant, Aslam Khan, was elected to the U.P. Legislative Assembly in the general elections held in February and March 1957. His election was challenged by respondent Fazal Haque Khan on the ground that the appellant was not a citizen of India and was, therefore, disqualified for being chosen as a member of the U.P. Legislative Assembly under Articles 173 and 191(1)(d) of the Constitution. The Election Tribunal held that the appellant was not a citizen of India and set aside his election.
Finding of the Court:
The court held that the appellant was not a citizen of India at the time of his election because he had migrated to Pakistan after the first day of March 1947 and had not acquired Indian citizenship by registration or naturalization under the Citizenship Act, 1955. The court further held that the appellant's case fell under Section 5(1)(a) of the Citizenship Act, 1955, and not under Section 5(1)(e) of that Act, and that he was, therefore, entitled to be registered as a citizen of India by the Collector of Rampur.
Issues: 1. Whether the appellant was a citizen of India at the time of his election. 2. Whether the appellant's case fell under Section 5(1)(a) or Section 5(1)(e) of the Citizenship Act, 1955. 3. Whether the appellant was entitled to be registered as a citizen of India by the Collector of Rampur.
Ratio Decidendi: 1. The court held that the appellant was not a citizen of India at the time of his election because he had migrated to Pakistan after the first day of March 1947 and had not acquired Indian citizenship by registration or naturalization under the Citizenship Act, 1955. The court relied on Article 7 of the Constitution, which provides that a person who has migrated from India to Pakistan after the first day of March 1947 shall not be deemed to be a citizen of India. The court also held that the appellant's case fell under Section 5(1)(a) of the Citizenship Act, 1955, and not under Section 5(1)(e) of that Act, because the appellant was not a citizen of Pakistan at the time of his registration. The court further held that the appellant was entitled to be registered as a citizen of India by the Collector of Rampur because he satisfied all the requirements of Section 5(1)(a) of the Citizenship Act, 1955.
Final Decision: The court allowed the appeal, set aside the order of the Election Tribunal, and dismissed the election petition filed by respondent Fazal Haque Khan with costs.
( 1 ) THE appellant, Aslam Khan, respondents Fazal Haque Khan, Abdul Hadi Khan and Sita Ram and one Tribeni Sahai Misra were candidates for election to the U. P. Legislative Assembly in the general elections held in February and March, 1957, from No, 60, Rampur constituency. All the live candidates filed nomination papers on 31-1-1957, and, after scrutiny, they were declared duly nominated on 1-2-1957. Tribeni Sahai Misra, who is not a party to this appeal, withdrew his candidature within the time permitted by law. The polling in the constituency took place on 22-2-1957, and the counting on 1-3-1957. The same day the result was announced and Aslam Khan appellant was declared duly elected. Thereupon Fazal Huque Khan respondent No. 1 filed an election petition before the Election commission challenging the election of Aslam Khan appellant. The election petition was sent for trial to the Election Tribunal, Rampur. The main ground, on which the election was challenged, was that Aslam Khan appellant was not a citizen of India and, consequently, under article 173 of the Constitution he was not qualified to be chosen to fill a seat in the Legislature of Uttar Pradesh and, further, for the same reason, he was disqualified for being chosen as, and for being, a member of U. P. Legislative Assembly under Article 191 (1) (d) of the Constitution. The election was also challenged on various other grounds, including commission of corrupt practices, falling under various Sub-sections of Section 123 of the Representation of the People act, 1951, as amended upto-date. The Election Tribunal held on all points in favour of the appellant except on the question of the appellant being a citizen of India. The finding recorded by the Election Tribunal was that the appellant was not a citizen of India, so that both Articles 173 and 191 applied and the election of the appellant was liable to be set aside. It is against this decision that the appellant has come up in appeal to this Court.
( 2 ) THE principal point we have to deal with in this appeal, consequently, is whether the appellant was or was not a citizen of India on the relevant dates when the election took place and he was declared duly elected to the U. P. legislature. In considering the question of citizenship, we have to take into account the provisions contained in the Constitution and the provisions of the citizenship Act, 1955. Prior to the commencement of the Constitution, persons residing in the territory of India were British subjects. The citizenship of India came into existence, for the first time, under the Constitution when India became a republic. Article 5 of the Constitution recognised as a citizen of India every person who had his domicile in the territory of Indian and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who had been ordinary resident in the territory of India for not less than five years immediately preceding such commencement. Aslam Khan appellant had his original domicile in the territory of India and he was also born in the territory of India; both his parents were also born in the territory of India. Consequently, if Article 5 of the Constitution could have been applied to him, he would have been a citizen of India under this provision. The Constitution in Article 7, however, made an exception and laid down that
"notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory new included in Pakistan shall not be deemed to be a citizen of India. "
It is the admitted case of the parties that the appellant had left India after the first day of March 1947. It appears that the appellant in the year 1947, was in Government service. He had the choice of option of India or Pakistan and he opted for Pakistan. In pursuance of this option exercised by him, he actually went to Pakistan and served un
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