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Khalil Ahmad Vs. State of U.P. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 959 of 1960
Judge
Reported inAIR1962All383
ActsConstitution of India - Articles 11 and 19; Citizenship Act, 1955 - Sections 2(1), 2(5), 5(1), 9 and 9(2); Citizenship Act, 1956; Foreigners Act, 1946 - Sections 2, 3 and 14; Foreigners (Amendment) Act, 1957; Foreigners Order, 1948; Registration of Foreigners Rules, 1939 - Rules 6 and 15; Citizenship Rules - Rule 30
AppellantKhalil Ahmad
RespondentState of U.P.
Appellant AdvocateBashir Ahmad, Adv.
Respondent AdvocateK.L. Misra, Adv. General, ;Harish Chandra Pati Tripathi and ;M.M. Chaturvedi, Advs.
Excerpt:
constitution - citizenship - articles 11 and 19 schedule 7 list i item 17 of constitution of india - parliament is competent to provide for the termination of citizenship by enacting section 9 of the citizenship act - central government is the proper authority to determine the nationality under section 9(2) read with rule 30 - held person coming from pakistan and holding pakistani passport is a foreigner under section 2(a) of foreigners act. - - we are clearly of opinion that article 19 of the constitution has no application to such a case. that case, therefore, cannot be of any help to the applicant in the present case and is clearly distinguishable. it may be safely assumed that the government is in the best position to decide the matter as the question of citizenship is, broadly.....d.p. uniyal, j.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.....
Judgment:

D.P. Uniyal, J.

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 Constitutionevery 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 beconsidered 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 January, 1950, the date of the commencement of the Constitution.

6. We are here concerned with a case where the applicant is said to have acquired citizenship of a foreign State subsequent to the coming into force of the Constitution and the question immediately arises whether a person who was a citizen of India on the 26th January, 1950 would cease to be so if he has subsequently voluntarily acquired citizenship of a foreign State.

7. In, order to resolve this question we have to examine the scope and ambit of Article 11 of the Constitution which says that notwithstanding the provisions of Articles 5 and 9 of the Constitutions the Parliament shall have the power to make any provision with respect to the acquisition and termination, of citizenship and all other makers relating to citizenship. Entry 17 of List 1 of Schedule VII empowers the Parliament to make laws relating to citizenship, naturalisation and aliens. The contents of Entry 17 have to be read in the light of the power conferred by Article 11. It was in pursuance of this power that the Parliament enacted the Citizenship Act (No. 57 of 1955). Sections 3 to 7 of this Act make provision for the acquisition of citizenship by various modes, namely, citizenship by birth, citizenship by descent, citizenship by registration, citizenship by naturalisation and citizenship by incorporation of territory. Section 8 of the Citizenship Act provides for the mode of renunciation of citizenship by an Indian citizen.

Section 9 provides as to the circumstances which may result in, the termination of citizenship. Section 9 is in these terms :

'9. (1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the common cement of this Act, voluntarily acquired, the citizenship of another country, shall, 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, unless the Central Government otherwise directs.

'(2) If any question arises as to where, when or how any person has acquired citizenship of and her 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.

8. Section 18 of the Citizenship Act gives power to the Central Government to make rules to carry out the purposes of the Act. Clause (h) of Sub-section (1) of Section 18 says such rules may provide for the authority to determine the question of acquisition of citizenship of another country, the procedure to be followed by such authority and rules of evidence relating to such cases. The Central Government have framed Rule 30 of the Citizenship Rules of 1956 specifying the authority to determine the question as to where, when or how any person has acquired the citizenship of another country. Rule 30 says :

'30. (1) If any question arises as to where, when or how a person has acquired the citizenship of another country, the authority to determine such question shall, for purposes of Section 9(2), be the Central Government.

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

9. Now a person who is citizen of a particular country may abandon that citizenship and acquires the citizenship of another country. In that event a question may arise whether he has relinquished the ciizenship of his country of domicile, It is obvious that this matter will need to be decided on, the basis of some rules of evidence and by such authority as may be prescribed for the purpose. It was to provide for a situation of this character that Clause 3 ofSchedule III of the Citizenship Rules was framed by the Central Government under the rule making power conferred on it by Section 18, read with Rule 30 of the Citizenship Rules.

10. The learned counsel argued that Clause 3 of Schedule III framed under Rule 30 of the Citizenship Act, was arbitrary and constituted unreasonable abridgment of the fundamental rights of a citizen. Clause 3 of Schedule III reads :

'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 citizenship of that country before that date'.

11. Under Section 9(2) of the Citizenship Act when any dispute arises as to whether a person has acquired citizenship of and her 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, Rule 30 states that the Central Government shall be the authority to determine such questions for purposes of Section 9(2) of the Act. The rules of evidence which should guide the Central Government in arriving at the conclusion as to whether a person has or has not voluntarily acquired the citizenship of another country are laid down in Schedule III. Para 4 of Schedule III reads :

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

(a) Whether 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 the country; and

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

12. Para 5 reads :

'Notwithstanding anything contained in Para 4, a citizen of India shall be deemed to have voluntarily acquired citizenship of Paskistan :

(a) if he has migrated to Pakistan with the intention of making it his permanent home; or

(b) if he has obtained any certificate of domicile for Pakistan or declared himself to be a citizen of Pakistan or of Pakistan demicile; or

(c) if he has applied for and obtained a right, title or interest in evacuee property in Pakistan; or

(d) if he has obtained a temporary permit for entry into India from Pakistan'.

13. The learned Advocate-General pointed out that the question of acquisition of citizenship of another country is a question of status and that Article 11 of the Constitution gave very wide powers to Parliament for making the law with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. The power thus given to Parliament was not controlled by any provision of the Constitution. Article 11 expressly provided that notwithstanding any provision in Part II of the Constitution, theParliament shall have the power to make law for the acquisition and termination of citizenship. It cannot therefore, be in doubt that Parliament was competent to provide for the termination of citizenship by enacting Section 9 of the Citizenship Act. As we have mentioned earlier, Item 17 of List 1 of Schedule VII embraces the power conferred on the Parliament to make law relating to citizenship, naturalisation and aliens. It follows, therefore, that the Parliament is also competent to make rules of evidence for purposes of determining whether a person has ceased to be an Indian citizen or not.

14. Schedule III of the Citizenship Rules lays down the rules of evidence in regard to this matter. If a person is not a citizen of India he cannot call in aid the provisions of Part III of the Constitution. Article 19 applies only to the case of Indian citizen and if a person's nationality is in dispute be cannot claim protection of the fundamental rights, for it would be a contradiction in terms to hold that a person though not a citizen of India is nevertheless entitled to all the privileges and rights available to an Indian citizen. If a question arises whether the person concerned has acquired the citizenship of another country, that question has got to be resolved with the assistance of the rules of evidence contained in Clause 3 of Schedule III of the Citizenship Rules. We are clearly of opinion that Article 19 of the Constitution has no application to such a case. We are supported in this view by the Bombay High Court in State v. Sharifbhai Jamalbhai : AIR1959Bom192 and Dawood Ali Arif v. Deputy Commissioner of Police : AIR1958Cal565 . We were referred to the case of Sharafat Ali Khan v. State of Uttar Pradesh : AIR1960All637 . In that case, Broome, J. held that Clause 3 of Schedule III of the Citizenship Rules appears to give rise to arbitrary and unreasonable abridgment of the fundamental rights guaranteed to all Indian citizens and is, therefore, by virtue of Article 13(2) of the Constitution, null and void. He relied On the view adopted by the Andhra Pradesh High Court in Mahomed Khan v. Government of Andhra Pradesh, AIR 1957 Andh Pra 1047.

15. We may point out that the view expressed by the Andhra Pradesh High Court in Mahommad Khan's case AIR 1957 Andh Pra 1047 has been dissented from by the Madras, Rajasthan, Calcutta and Bombay High Courts, vide Mohamed Usman v. State of Madras : AIR1961Mad129 ; : AIR1959Bom192 ; Ghaurul Hassah v. State of Rajasthan and : AIR1958Cal565 .

16. It seems to us that in Sharafat Ali Khan's case : AIR1960All637 Broome J. proceeded on the presumption that the person concerned was an Indian citizen and, as such, entitled to the protection guaranteed under Article 19 of the Constitution. It was admitted in that case that the person concerned was a minor when he went to Pakistan and, as such, had no legal capacity to acquire domicile different to that of his guardian. On that finding it couldlegitimately be held that he had not lost his Indian nationality. That case, therefore, cannot be of any help to the applicant in the present case and is clearly distinguishable.

17. It was next contended that under Section 9(2) read with Rule 30 of the Citizenship Rules the proper authority to determine the question as to nationality of the applicant was the Central Government and that the applicant could not have been prosecuted without first obtaining the decision of the Central Government under Section 9(2) of the Citizenship Act. In our view the objection raised by the applicant is sound.

18. Schedule III of the Citizenship Rules lays down rules of evidence which should guide the Central Government in determining the question whether a person has voluntarily acquired citizenship of another country. It may be safely assumed that the Government is in the best position to decide the matter as the question of citizenship is, broadly speaking, political in nature. Consequently the prosecution of the applicant appears to us to be premature and unjustified. The Central Government have not yet made any decision as to his citizenship and he could not, therefore, be convicted on the ground that he is a 'foreigner'.

19. It was further contended that the Government of India had not recognised the citizenship or nationality law of Pakistan as being an enactment in force in that country and that, therefore, the applicant could not be declared as a citizen of Pakistan. Reliance was sought to be placed on the terms 'citizen' and 'nationality law' as defined in Section 2 of the Citizenship Act and it was said that he could not be held to be a citizen of Pakistan.

20. Clauses (b) and (c) of Section 2(1) of the Citizenship Act are as follows :

'(b) 'Citizen' in relation to a country specified in the First Schedule means a person who under the citizenship or nationality law for the time being in force in that country is a citizen or national of that country.

'(c) 'Citizenship' or 'Nationality law' in relation to a country specified in the First Schedule means an enactment of the legislature of that country which at the request of the Government of that country the Central Government may by notification in the official gazette have declared to be an enactment making provision for the citizenship or nationality of that country'.

21. It was pointed out that the Central Government had not issued any notification in the official gazet'e declaring the Pakistan Citizenship Act 1951 to be an enactment making provision for the citizenship or nationality of Pakistan and that, therefore, the applicant could not be said to have voluntarily acquired the citizenship of Pakistan.

22. There is an obvious fallacy in the argument. The definition of 'citizen' or 'citizenship or nationality law' given in Section 2(1)(b) and (c) of the Citizenship Act, is for the purpose of placing a restriction on the foreigner who wants to get himself registered as an Indiancitizen. This is made clear by the proviso added to Section 5 of the Citizenship Act which runs as fallows :

'5. (1) Subject to the provisional of this section and such conditions and restriction as may be prescribed, the prescribed authority, may on application made in this behalf register as a citizen of India any person who is act already such citizen by virtue of the Constitution or by virtue of any of the other provisions of this Act, and belongs to any of the following categories :

(a) ....................

(b) ....................

(c) ....................

(d) ....................

(e) Persons of full age and capacity who are citizens of a country specified in the First Schedule.

Provide that in prescribing the conditions and restrictions subject to which persons of any such country may be registered as citizen of India under this clause, the Central Government shall have due regard to the conditions subject to which citizens of India, may be by law or practice of that country, become citizens of that country by registration'.

23. The first Schedule has been framed for the purpose of Section 5(1)(c) of the Citizenship Act and it is in this context that Clauses (b) and (c) of Section 2 have to be interpreted. The proviso to Section 5(1) of the Citizenship Act makes it abundantly clear that the intention of the legislature was that persons of a country mentioned in Schedule I would be qualified to be registered as citizens of India if there was a corresponding law in that country permitting citizens of India to become citizens of that country by registration. It was to give effect to the principle of reciprocity that the definition of the words ''citizen' and 'citizenship or nationality law'' was expressed in those terms.

24. The learned counsel cited the case of Aslam Khan v. Fazal Haq Khan : AIR1959All79 in support of his argument that the Pakistan Citizenship Act, 1951 does net satisfy the requirements of citizenship or nationally law laid down in the definition in Section 2(1)(c) of the Citizenship Act. In that case it was observed by the learned Judges that the Central Government had not notified in the official gazette declaring the Pakistan Citizenship Act to be an enactment making provision for the citizenship or nationality of Pakistan, From this it was concluded by the learned Judges that a person coming to India from Pakistan on the basis of a passport and visa could not be recognised as a citizen of Pakistan as in their view there was no law relating to the acquisition of citizenship of Pakistan so for as the Indian Government was concerned. With great respect We fail to appreciate the reasoning on which the decision in Aslam Khan's case : AIR1959All79 was based. It appears that the abention of the Court was not invited to the fact that the First Schedule has been framed for the purpose of implementing the provisions of Section 5(1) of the Citizenship Act. It seems to us that the observations made in Aslam Khan's case : AIR1959All79 are too wide of the mark, and we respectfully dissent from the view expressed therein.

25. It was next urged that the applicant was a 'natural born British subject' as defined in Sub-section (1)(b) of Section 1 of the British Nationality and Status of Aliens Act, 1914 (4 and 5 Geo V Ch. XVII) and that the mere fact that he had obtained a passport from Pakistan for entering India could not make him a foreigner.

26. It becomes necessary to examine the validity of this argument by reference to certain provisions of the Foreigners Act as amended from time to time. The word 'foreigner' was cleaned by Section 2(a) of the Foreigners Act (XXXI of 1946) as amended by Act XXXVIII of 1947, as follows :

'Foreigner' means a person who-

(i) is not a natural born British subject, as defined in Sub-sections (1) and (2) of Section 1 of the British Nationally and Status of Aliens Act 1914, or

(ii) has not been granted a certificate of naturalisation as a British subject under any law for the time being in force in India, or

(iii) is not the ruler or subject of an acceding state, or

(iv) is not a native of the Assam tribal areas:

Provided that any British subject, who under any law for the time being in force in India ceases to be a British subject, shall be deemed to be a foreigner'.

27. It is not in dispute that the applicant was born in India during British suzerainty and was, as such, a natural born British subject. The definition of the word 'Foreigner' was amended by the Adaptation of Laws Order, 1950 when the Constitution of India came into operation and, Clauses (iii) and (iv) of the proviso of the original definition were deleted. In their place a new clause was added to the following effect :

'Is not a citizen of India.'

In spite of his amendment by the Adaptation of Laws Order natural born British Subjects and persons holding certificates of naturalisation as British subjects under any law for the time being in force were not regarded as foreigners. The position was, however, fundamentally altered when in the year 1957 Section 2(a) of the Foreigners Act 1946 was amended by Act XI of 1957 and the word 'foreigner' was defined as 'a person who is not a citizen of India'. This amendment came into force with effect from 18-11-57. It is thus clear that persons who before the date on which Act XI of 1957 came into force, were entitled as natural born British subjects to claim that they were not foreigners were deemed to be foreigners unless it was proved that they were citizens of India.

28. It has not been challenged that the Parliament has plenary powers and could amend the law so as to declare a natural born British subject a foreigner if he was not a citizen of India. It would, therefore, follow that after thecoming into force of the Foreigners Act (XI of 1957) a person who is not a citizen of India would be deemed to be a foreigner. It is said that the status of the applicant as a natural born British Subject could not be affected by the Foreigners Amendment Act of 1957. The argument is wholly without substance. As from the 15th day of August, 1947 when two independent dominions of India and Pakistan were brought into existence by the Indian Independence Act, the suzerainty of the British Crown came to an end.

Section 7(1)(a) of the Independence Act reads :

''His Majesty's Government in the United Kingdom have no responsibility as respects the Government of any of the territories which immediately before that date were included in British India'.

Proviso (b) of Sub-section (2) of Section 8 of that Act says that:

'nothing in this sub-section shall be construed as continuing in forces of an order after the appointed date any form of control by His Majesty's Government in the United Kingdom over the powers of the new Dominion or any provinces or other parts thereof.'

29. Thus India ceased to be a 'Dependency' of the British Empire by the passing of the Indian Independence Act, 1947 and all control by His Majesty's government in the United Kingdom over the powers of the new dominion of India came to an end. It is well established that when a sovereign power cedes a territory by treaty or otherwise to another State the inhabitants of the ceded territory cannot retain the allegiance and nationality of their former ruler.

30. The case of Emperor v. Jagardeo Ramsumer, AIR 1925 Bom 489 illustrates the point made above. There a certain territory in which the applicant of that case resided was ceded to the Maharaja of Banaras by the British Government. The applicant came to live in Bombay in connection with his business. He contended that he was a 'natural bom British subject' and, as such, was not a 'foreigner' under the Foreigners Act (III of 1864) as amended by Act III of 1915. This contention was repelled by the Bombay High Court and it was held that a relinquishment of the government of a territory was not only relinquishment of the right to the soil or territory but also of the rights over the inhabitants of the country. It was held that :

''When a sovereign by treaty relinquishes his claim to the allegiance of the inhabitants of specified territories, it becomes a question of fact whether a particular individual remained after the cession an inhabitant of the specified territory and became thereby a citizen of the State into which it passed as an integral part. In no case has it been held that any inhabitant of the ceded or separated territory has the right to remain an inhabitant of it, and at the same time to retain the allegiance and nationally of the State which ceded or permitted the separation.'

31. It is evident that when the British Crown relinquished the government of the territory of India and created two separate dominions of India and Pakistan, persons residing in the respective Dominions ceased to retain the allegiance and nationality of the British Crown which had transferred all its rights over the territory of India to the said two Dominions. It follows, therefore, that the applicant could not claim to be a natural born British subject as from the 15th of August, 1947.

32. It was also contended that the Pakistani passport on the basis of which he entered India was not a document of tile and, as such, could not affect his original status as an Indian citizen. It was said that the mere fact that the applicant had obtained a Pakistani passport should not be considered as evidence of his having voluntarily acquired citizenship of Pakistan. Now it seams to us clear that under the Pakistan Citizenship Act 1951, the Pakistan Government would not have issued a passport to the applicant unless they were satisfied that he was a Pakistani citizen. This aspect of the case is important because a citizen of India living in Pakistan did not have to obtain a Pakistani passport and a visa to visit India while a Pakistani national would have to do so. In this view of the matter the issue of a Pakistani passport would be presumptive evidence of the fact that the holder thereof owed allegiance to the Pakistan Government.

33. In Joyce v. Public Prosecutions Director, 1946 AC 347 an American citizen who had resided, in British territory for a number of years applied for and obtained a British passport describing himself as a British subject by birth and stating that he required it for the purpose of holiday touring in Germany and other European countries. During the continuance of the passport issued to him the Second World War broke out and he helped the Nazi Government in delivering broadcast talks in English hostile to Great Britain. He was prosecuted and convicted of reason. It was contended on his behalf that he was an American citizen and, as such, the passport issued to him did not affect his status as an American citizen and that he could not be prosecuted and convicted for treason on the footing that he was a British citizen.

Lord Jowitt, the Lord Chancellor, repelled the contention and observed as follows ;

'The essential fact is that he got the passport and I now examine this fact. The actual passport issued to the appellant has not been produced, but its contents have been duly proved. The terms of a passport are; familiar. It is thus described by Lord Alerstone, C. J. in R. v. Brailsford, (1905) 2 KB 730 : 'It is a document issued in, the name of the sovereign on the responsibility of a Minister of the Crown 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.'

By its terms it requests and requires in the name of His Majesty all those whom it may concernto allow the bearer to pass freely without let and hindrance and to afford him every assistance and protection of which he may stand in need''. The Lord Chancellor pointed out that :

''In these circumstances I am clearly of opinion that so long as he holds the passport ............if he is adherent to the King's enemiesin the realm or elsewhere is itself an act of treason. There is one other aspect of this part of the case with which I must deal. It is said that there is nothing to prevent an alien from with drawing from his allegiance when he leaves the realm. I do not dissent from this as a general proposition. It is possible that he was do so even though he has obtained a passport. But that is a hypothetical case. Here there was no suggestion, that the appellant had surrendered his passport or taken any either over steps to withdraw from his allegiance'.

34. The observations of the House of Lords quoted above fully apply to the present case. The applicant here had not surrendered his passport nor taken any overt stop to withdraw from his allegiance to the Pakistan Government. If he was so minded he could have applied for being registered as am Indian citizen. He, however, chose to sojourn in India on the basis of the Pakistani passport and at no time directly or indirectly indicated his intention to renounce his Pakistani citizenship. We are, therefore, of opinion that the applicant by obtaining a Pakistani passport had declared his allegiance to the Pakistan Government and could be considered as a foreigner.

35. Lastly, it was contended that Para 7 of the Foreigners Order made in pursuance of Section 3 of the Foreigners Act was a piece of delegated legislations and was, therefore, invalid. It is said that the Parliament had delegated unbridled and unguided power to the Central Government.

36. In order to appreciate this contention it is necessary to refer to Section 3 of the Foreigners Act which says that the Central Government may by order make provision either generally or with respect to all foreigners or with respect to any particular foreigner, for prohibiting, regulating or restricting entry of foreigners into India, or their departure therefrom or their presence or continued presence therein. In Sub-section (2) of Section 3 if is laid down that orders made under this section may provide, inter alia, that the foreigner shall not depart from India or shall depart only at such times and by such route and subject to the observance of such conditions of departure as may be prescribed, and further that he shall not remain in India, or in any prescribed area therein, and shall comply with such conditions as may be prescribed or specified imposing any restrictions on his movement, etc. It would thus appear that the legislature has clearly specified the matters in respect of which orders may be made under this section by the Central Government. It cannot, therefore, be said that an unguided power has been conferred on the Central Government. It is only a piece of conditional legislation; and, consequently the power conferred on the Central Government cannot be said to be in excess of Section 3 of the Act.

37. Para 7 of the Foreigners Order, 1948 stands as follows :

''Restriction on sojourn in India : Every foreigner who enters India on the authority of a visa issued in pursuance of the Indian Passports Act, 1920 (XXXIV of 1920) shall obtain from the Registration Officer having jurisdiction either at the place at which the said foreigner enters India, or if he enters India otherwise than on the authority of transit visa or passport as defined in the Registration of Foreigners Act, 1939 at the place in which he resides in India, a permit indicating the period during which he is authorised to remain in India, and shall, unless the period stated in the permit is extended by the Central Government, depart from India before the expiry of the said period'.

Section 14 of the Foreigners Act provides that persons contravening the provisions of the Act or of any order made thereunder or any direction given in pursuance of the Act or such Order, would be liable to be punished with imprisonment for a term which may extend to five years. Paragraph 7 of the Foreigners Order has been made to regulate and restrict the movements of foreigners sojourning in India, in the interest of the Security of the State and also to safeguard the personal safety of the foreigner concerned. We find no force in the contention that para 7 of the Foreigners Order is invalid.

38. It was also suggested that Rule 6 of the Registration of Foreigners Rules, 1939 does not provide for obtaining a permit by a foreigner from the Registration Officer. Section 2(b) of the Registration, of Foreigners Rules, 1939 defines 'certificate of registration' as meaning a certificate of registration issued in pursuance of Rule 6. Clause (g) of that section defines ''Register is required to inform the Registration Officer appointed by the Central Government under Rule 3.

39. Rule 6(1)(a) of the Registration of Foreigners Rules, 1939 says that a registration report shall be presented by a foreigner who is present in India on the date on which these Rules come into force, within fifteen days of the said date, to the Registration Officer of the district in which his address in India is situated; and if on the said date, and for a period, of fourteen days thereafter, the foreigner is absent from that district, to the Registration Officer of the District in which the foreigner is for the time being present. Sub-rule (2) of Rule 6 says that every foreigner presenting a registration report shall furnish to the Registration Officer such information as may be in his possession' for the purpose of satisfying the said officer as to the accuracy of the particulars specified therein and shall, on being required so to do, sign the registration report in the presence, of the said officer and shall thereupon he entitled to receive from the said officer a certificate of registration in part III of Form A, or Part II of Form D, as the case may be.

40. The certificate of registration Issued to a foreigner in Part III of Form A requires that when he is about to depart from India he shall produce his certificate of registration before the Registration Officer of the district in which his registered address is situated, and obtain from him an endorsement to the effectthat the departure report has been made, and also surrender his certificate so endorsed to the Registration Officer of the place from which, he proposes to leave India.

41. Rule 5 of the Registration of Foreigners Rules makes it incumbent on every foreigner entering India to present in person to the appropriate Registration Officer prescribed by Rule 6 a Registration Report of his arrival or presence, as the case may be, in India.

42. The foregoing provisions of the Registration of Foreigners Rules leave no room for doubt that under the Registration of Foreigners Act and the rules framed thereunder, a foreigner is required to inform the Registration Officer of his presence in, India and obtain a certificate of registration from that officer, in accordance with Rule 6. He is further required to surrender his certificate of registration immediately before his departure from India in accordance with Rule 15 and obtain an endorsement from the Registration Officer to that effect. The purpose for which the certificate of registration is issued in respect of a foreigner is to regulate his movements within the district in which the registration certificate was granted, and also to restrict his stay within the period specified in the visa issued to him.

43. It is true that there is no specific rule for obtaining a 'permit' by a foreigner from the Registration Officer, but it may be implied from the fact that every foreigner entering India is required to present in person to the Registration Officer a registration report of his arrival in India, on the basis of which he is granted a certificate of registration duly endorsed by the Registration Officer. This certificate of registration is nothing else than a 'permit'' issued to the foreigner indicating the date of his arrival and the period during which he is permitted to stay in the country. If a foreigner contravenes any of the directions contained in the certificate of registration he renders himself liable to the penalties prescribed in Section 14 of the Foreigners Act. It seems to us clear that Para 7 of the Foreigners' Order is violated by a foreigner if he does not comply with the conditions mentioned in the certificate of registration and fails to depart from India within the period mentioned in the said certificate.

44. Our answer to question No. 1, therefore, is that the question of citizenship can only be decided by the Central Government in accordance with Section 9(2) of the Citizenship Act We further, hold that there being no decision of the Central Government in the present case that the applicant was not a citizen of India, he could not be prosecuted and convicted under Section 14 of the Foreigners Act.

45. Our answer to the second question is that 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.

46. Our answer to the third question is that if a foreinger does not obtain a permit as required by Para 7 of the Foreigners Order, 1948he renders himself liable under Section 14 of the Foreigners Act.

47. The case shall be returned to the court concerned with the above opinion.


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