Syed Shah Mohammad Abdali And Another v. The State Of Bihar Opposite Party.

Ramaswami, C.J:— In this case the petitioners Syed Shah Mohammad Abdali and Akhtar Imam have obtained a rule from the High Court calling upon the respondent to show cause why the deportation order dated 7-2-1958, requiring the petitioners to leave India, should not be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution. Cause has been shown by learned Counsel on behalf of the State of Bihar.

2. Petitioner No. 1 alleges that he is an Indian citizen, having been born in village Islampur in the district of Patna, and petitioner No. 2, Akhtar Imam, is his adopted son. In May, 1948, both the petitioners had gone to Karachi to see their relation Syed Shah Mohammed Usman. Petitioner No. 1 fell seriously ill at Karachi, and after his recovery he applied to the High Commissioner for India in July, 1948, for a permanent permit to return to India. He filed another application on 6-3-1953, for a permanent permit.

3. It is alleged that on 23-5-1953, petitioner No. 1 was informed by the High Commissioner for India that he should obtain a Pakistani passport in the first instance and resubmit his application for a permit. Petitioner No. 1 accordingly applied to the Pakistan authorities for a passport and obtained a Pakistani passport No. 125572, dated 11-7-1953, and thereafter applied for a visa to the High Commissioner for India at Karachi. After obtaining the visa the petitioners came to India, and on 7-1-1954, petitioner No. 1 applied for permission to the Government of India for permanently staying in India. The application was not granted, and in 1955 the petitioner applied for an extension of his passport. On 30-9-1957, a notice was issued to the petitioners to leave India. The petitioners did not comply with the order. Eventually on 7-2-1958, the deportation order was issued by the State Government under Section 3, sub-Section 2(c) of the Foreigners Act, 1946 (Act XXXI of 1946). The case of the petitioners is that they are Indian citizens and not foreigners within the meaning of the Foreigners Act, 1946, and so the deportation order dated 7-2-1958, is unconstitutional and ultra vires.

4. In the counter-affidavit it is stated by the respondent that the petitioners are not Indian citizens but they have acquired Pakistani nationality. It is further stated that the petitioners had obtained Pakistani passport No. 125572, dated 11-7-1953, and on the basis of this passport the petitioners had applied for and obtained a ‘C’ category visa from the High Commissioner for India at Karachi.

5. The deportation order which is the subject-matter of debate in this case is annexure I to the application and is in the following terms:

DEPORTATION ORDER

6. Patna, 7-2-1958. No. C/PP-201(10) Pat/58-1549 C. Whereas Shri Syed Shah Mohd. Abdali s/o Late Abdul Kadir and his minor son Akhtar Imam. Pakistani nationals were asked in the notice served on him on 30-8-1957, to leave India by 30-9-1957.

7. And whereas the said Shri Syed Shah Mohd. Abdali and his minor son Akhtar Imam have failed to leave India by the date aforesaid.

“Now, therefore, in exercise of the powers conferred by clause (c) of sub-Section (2) of Section 3 of the Foreigners Act 1946 (XXXI of 1946), read with the Government of India, Ministry of Home Affairs Notification No. 9/2/53-P(II)(1), dated 16-7-1955, the Governor of Bihar is pleased to direct that the said Shri Syed Shah Mohd Abdali and his minor son Akhtar Imam.

(i) shall not remain in India after the expiry of 3 (three) days from the date on which this order is served on him;

(ii) shall depart from India by land route; and

(iii) shall not thereafter re-enter India.

By order of the Governor of Bihar,

sd/- Illegible,

Addl. Under Secretary to Government”

8. The question presented for determination in this case is whether the petitioners are “foreigners” within the meaning of the Foreigners Act: (Act XXXI of 1946) and whether the deportation order made by the respondent is intra vires of the Act.

9. Section 2(a) of the Foreigners Act defines a “foreigner” to mean a person who is not a citizen of India. Section 3(2)(c) of the Act States as follows:

“3. Power to make orders — The Central Government may by order make provision either, generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein.

(2) In particular and without prejudice to the generality of foregoing power, orders made under this section may provide that the foreigner—

(c) shall not remain in India or in any prescribed area therein;

xxxxx”

10. In this connection it is necessary to deal with the relevant provisions of the Citizenship Act (Act 57, of 1955). This Act provides for various modes of acquisition and termination of Indian citizenship. Sections 3, 4, 5, 6 and 7 deal with five different modes of acquiring citizenship, namely, (1) citizenship by birth, (2) citizenship by descent. (3) citizenship by registration, (4) citizenship by naturalisation, and (5) citizenship by incorporation of territory. Section 9 of the Act is important and must be reproduced in full:

“9. TERMINATION OF CITIZENSHIP. — (1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has that any time between 26-1-1950 and the commencement of this Act voluntarily acquired, the citizenship of another country snail, upon such acquisition or as the case may be, such commencement, cease to be a citizen of India:

Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise direots.

(2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.”

Section 18 of the Act empowers the Central Government, by notification in the official Gazette, to make rules to carry out the purposes of the Act, and under sub-s. 2(h) of S. 18 the Central Government is empowered to make rules providing for the authority to determine the question of acquisition of citizenship of another country, the procedure to be followed by such authority and the rules of evidence relating to such cases.

11. In exercise of the powers conferred by Section 18 of the Citizenship Act (Act 57 of 1955) the Government of India enacted the Citizenship Rules, 1956. These rules provide for the form of application far registration, form of application for naturlisation and matters appertaining to declarations of resumption and renunciation of citizenship. Rule 30 of the Citizenship Rules is important and it reads as follows:

“30. AUTHORITY TO DETERMINE ACQUISITION OF CITIZENSHIP OF ANOTHER COUNTRY.—(1) If any question arises as to whether when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purposes of S. 9(2), be the Central Government.

(2) The Central Government shall in determining any such question have due regard to the rules of evidence specified in Schedule III.”

Clause 1 of Schedule III provides:

“Where it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require him to prove within such period as may be fixed by it in this behalf, that he has not voluntarily acquired the citizenship of that country; and the burden of proving that he has not so acquired such citizenship shall be on him.”

Clause 2 of Schedule III states as follows:

“2. For the purpose of determining any question relating to the acquisition by an Indian citizen of the citizenship of any other country the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of that country and act on any report or information received in pursuance of such reference.”

Clause 3 of Schedule III states as follows:

“3. The fact that a citizen of India 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.”

Clause 4 of Schedule III enumerates the circumstances which may be taken into consideration in determining whether a citizen of India has or has not voluntarily acquired the citizenship of any other country. Clause 4 reads as follows:

“4. In determining whether a citizen of India has or has not voluntarily acquired the citizenship of any other country, the Central Government may take the following circumstances into consideration, namely:

(a) where the person has migrated to that country with the intention of making it his permanent home;

(b) whether he has in fact taken up permanent residence in that country; and

(c) any other circumstances relevant to the purpose.”

Clause 5 of Schedule III provides that “a citizen of India shall be deemed to have voluntarily acquired the citizenship of Pakistan, …… (d) if he has obtained a temporary permit for entry into India from Pakistan.”

It was submitted by learned counsel on behalf of the petitioners in the first place that neither the Act nor the Rules provide the proper machinery for determining the disputed question of nationality and that the guarantee under Articles 14 and 19 of the Constitution has been violated. I do not think there is any substance in this argument. It is not correct to say that the Parliament has entrusted an arbitrary power to the Central Government for depriving citizenship rights of any person or class of persons. The power granted to the Central Government is not an unregulated or any arbitrary power. The reason is that the Act itself lays down the circumstance under which a person loses his citizenship, namely, when he voluntarily acquires the citizenship of another country. The modes of such voluntary acquisition of citizenship have been set out in S. 9 of the Act.

12. It is plain that the power delegated to the Central Government is circumscribed by providing safeguards. In other words, the Act itself enumerates the principles in the light of which the power is to be exercised, and what is delegated to the Central Government is only the power to bring into existence the machinery for carrying out the object of the Act. I am, therefore, of the opinion that Section 9 of the Citizenship Act does not violate the provisions of either Article 14 or Article 19 of the Constitution, and there is no question of any violation of these fundamental rights even on the assumption that the petitioners are Indian citizens.

13. I pass on to the next contention of the petitioners that Clause 3 of Schedule III of the Citizenship Rules is ultra vires of the Citizenship Act. It was submitted that Clause 3 provides that the fact that a citizen of India 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 data. It was argued that this rule was tantamount to an unreasonable restriction on the fundamental right of the petitioners under Article 19 of the Constitution, because the rule deprived the petitioners of any kind of inquiry before adjudicating that they have lost the rights of an Indian citizenship and acquired the citizenship of another country.

14. In support of this proposition learned counsel relied upon the decision of the Andhra Pradesh High Court in Mamomed Khan v. Govt of Andhra Pradesh, AIR 1957 Andh Pra 1047. Counsel appearing on behalf of the respondent, however, submitted that the decision of the Andhra Pradesh High Court is not correct. I feel doubt about the correctness of the decision of the Andhra Pradesh High Court. I do not, however, think it is necessary in this case to express a concluded opinion on this point. I shall assume in favour of the petitioners that Clause 3 of Schedule III of the Citizenship Rules is unconstitutional; even so I am of opinion that the circumstance that the petitioners applied for and obtained a Pakistani passport No. 125572, dated 11-7-1953, and further they obtained on the basis of this Pakistani passport a ‘C’ category visa from the High Commissioner for India, is prima facie evidence that they had acquired Pakistani citizenship.

15. It was contended on behalf of the petitioners that neither the passport nor the procurement of A ‘C’ category visa is legal evidence to prove that the petitioners had acquired Pakistani citizenship. I am unable to accept this argument as correct. I am of the view that the Pakistani passport and the procurement of a ‘C’ category visa furnish prima facie evidence that the petitioners had acquired Pakistani citizenship. The legal notion of a passport is explained by Lord Alverstone in R. v. Brailsford, (1905) 2 KB 730 at page 745 as follows:

“It will be well to consider what a passport really is. It is a document issued in the name of the Sovereign on the responsibility of a Minister of the Grown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office in an official document vouches the respectability of the person named.”

16. The definition given by Lord Alverstone was adopted by the House of Lords in Joyce v. Director of Public Prosecutions, 1946 AC 347.

The position in American law is not different:

“A passport is the accepted international evidence of nationality; in its usual form, it certifies that the person described in it is a citizen or subject of the country by whose authority it is issued, and requests for him permission to come and go, as well as lawful aid and protection.”

(Moore's Digest, III, 856).

The nature of an American passport has been described as follows:

“The American passport is a document of identity and nationality issued to persons owing allegiance to the United States and intending to travel or sojourn in foreign countries. It indicates that it is the right of the bearer to receive the protection and good offices of American diplomatic and consular officers abroad and requests on the part of the Government of the United States that the officials of foreign Governments permit the bearer to travel or sojourn in their territories and in case of need to give him all lawful aid and protection. It has no other purpose.”

(Hackworth's Digest of International Law, Vol. III at page 435).

With regard to the evidentiary value of the passport, I should refer to the following passage from Hyde: International Law at page 1197:

“EVIDENTIAL FORCE. On the theory that a State is the sole and ultimate judge of the ‘citizenship of its own dependents, and is, in its sovereign capacity, competent to certify to the fact,’ the United States demands that an American passport be respected abroad as prima facie evidence of the citizenship of the bearer. Thus the Department of State asserts that it is not, in the first instance, incumbent upon the bearer to prove his citizenship by extraneous evidence at the will of the country of sojourn, nor upon the United States to support its official attestation of the fact of citizenship by collateral proof. In case a foreign Government has reason to believe that a passport has been fraudulently issued, or is held by a person other than the one to whom it was issued or that the holder was fraudulently naturalized within the United States, it is declared that the mattes should be brought to the attention of the American diplomatic officer accredited to the State making complaint, who will render the necessary assistance (if need be in conjunction with the Department of State) in examining the authenticity of the document.’

To the same effect is the observation of Dr. Weis in his treatise on “Nationality and Statelessness in International Law” at page 225:

“A passport is considered in Great Britain and the United States to be prima facie evidence of the national status of the holder, but it is not conclusive evidence. The United States has on many occasions insisted that foreign authorities were not entitled ta ‘ignore an American passport’, i.e to refuse to regard it as sufficient proof of the holder's nationality. The Mexican Government's disregard of the proof of nationality afforded by an American passport was considered by Mr. Evarts, Secretary of State:

….. as wanting in proper courtesy to the Government of a friendly power.’

On another occasion, the United States asserted:

‘…. the universally admitted doctrine that a State is the sole ultimate Judge of the citizenship of ifs own dependents, and is in its sovereign capacity, competent to certify to the fact’.”

17. In the present case I am of the opinion that the Pakistani passport obtained by the petitioners and also the procurement of category ‘C’ visa from the High Commissioner for India furnish prima facie evidence that the petitioners are Pakistani citizens and that they have renounced Indian citizenship. As I have already said, the petitioners applied for and obtained Pakistani passport No. 125572, dated 11-7-1953, and on the basis of that passport the petitioners also obtained a ‘C’ category visa from the High Commissioner for India on 14-12-1953. In this context it is necessary to understand what is the nature of the ‘C’ category visa. Such a visa is granted to Pakistan nationals who are not eligible for, or who do not require, visas of categories A, B, D, E and F or transit visas, but who wish to visit India.

18. The category ‘C’ visa is valid for specified places in India and for a single journey of specified duration not exceeding three months. A holder of this visa will enter India through a checkpost and will register himself at once at the checkpost, and within twenty-four hours of his arrival at the specified place or places in India and 24 hours before his departure will report in writing to the Superintendent of Police or the nearest police station in the jurisdiction of which the place or places specified in the visa lie. It is clear, therefore, that there is prima facie evidence to show that the petitioners are foreigners within the meaning of the Foreigners Act (Act XXXI of 1946) and the deportation order by the State of Bihar, dated 7-2-1958, is not vitiated by any error of law or lack of jurisdiction.

19. I wish, however, to make it clear that it is open to the petitioners to convince the Tribunal constituted under the Citizenship Act, namely, the Government of India, that they have not voluntarily acquired the citizenship of Pakistan. If the petitioners make such a claim before the Tribunal and dispute the allegation that they have acquired Pakistani citizenship, then the matter will have to be considered and determined by the Central Government under R. 30 of the Citizenship Rules. But as the matter stands at present I hold that there is prima facie evidence that the petitioners had acquired Pakistani citizenship and are, therefore, “foreigners” within the meaning of the Foreigners Act.

20. In my opinion, the petitioners have not made out a case for grant of a writ under Article 226 of the Constitution. This application accordingly fails, but in the circumstances of the case I do not propose to make any order as to costs.

21. Kanhaiya Singh, J.:— I agree.

JC/H.G.P

22. Petition dismissed.