M.N. Shukla, J.
1. By this petition under Section 491 of the Code of Criminal Procedure read with Article 226 of the Constitution of India the petitioner challenges the validity of his detention in the district jail at Azamgarh.
2. The petitioner alleged that he was born in 1936 in village Kamrai in Pakhtoonistaa (now situate in Pakistan), his father and family settled down in Calcutta in 1946, his father died in 1948 on 1st January 1966 the petitioner was enrolled as a member of the All India Pakhtoon Jirga-e-Hind, he came from Calcutta to Kanpur in 1971 and thereafter shifted to Azamgarh where he set up business as a cloth dealer and staved with one Sher Khan. He had some Quarrel with Sher Khan and consequently, it is alleged, the latter got him implicated with the result that the petitioner was arrested on 16th August 1972 under Section 5/8 of the Foreigners (Internment) Order, 1962 (hereinafter referred to as the Order). Tlence. the petitioner filed this petition in the High Court on 28th August, 1972.
3. The allegations made by the petitioner were not accepted by the respondents and in the counter affidavit it was stated that the petitioner was born in 1936 in Pakhtooni-stan, that he for the first time, surreptitiously inflitrated into India in 1965. he stayed in Calcutta (West Bengal) till Januarv 1967, thereafter he came to Kanpur where he staved upto. May 1971 with Abdul Ghani Khan and then came to Azamgarh. It was alleged that the petitioner was a foreign national and consequently he was rightly arrested and detained under the provisions of the Foreigners (Internment) Order, 1962.
4. The petitioner's contention is that he is not a foreigner nor a national of Pakistan but he is a citizen of India and the provisions of the Order were not applicable to him and hence his detention is illegal.
5. The Foreigners (Internment) Order. 1962 was framed in exercise of the powers conferred by Sections 3, 4 and 8 of the Foreigners, Act. 1946 (31 of 1946) read with the Foreigners Law (Application and Amendment) Ordinance, 1962.
6. In order to examine the contentions raised on behalf of the petitioner it is necessary to refer to the relevant provisions of the Foreigners (Internment) Order, 1962. paragraph 3 as amended reads:
3. Application of Chapter: The chapter shall apply to and in relation to any national of Pakistan and to any other Foreigner who is, and any person who or either of whose parents, or any of whose grand parents was at any time a citizen or subject of any country at war with or committing external aggression against India or of any other country assisting the country at war with or committing such aggression against India.
7. Paragraph 4 provides for the establishment of Internment camps and for the appointment of a Commandant of every such camp.
8. Paragraph 5 reads:
5. Arrest and internment of certain persons:
(1) The Civil Authority for any area may arrest or cause to be arrested any person to whom this chapter applies in that area:
Provided that nothing in this sub-paragraph shall, except by an express direction of the Central Government apply to. or in relation to any such person employed in a diplomatic or consular mission in India.(2) Every person arrested under the provisions of sub-para (1) shall be surrendered as soon as may be, to the Commandant of an Internment camp.
(3) Every such person surrendered to the Commandant of an Internment Camp in pursuance of sub-para (2) shall be confined in an Internment Camp until otherwise directed by the Central Government.
9. Paragraph 6 reads:
6. Temporary detention of internees: The Civil Authority, shall, pending the surrender of an .internee to the Commandant of an Internment Camp detain or confine such internee in such manner and at such place as may to such authority appear suitable:Provided that the manner of -such detention or confinement shall not be more rigorous than the manner in which an arrested person detained or confined while in Police custody under the provisions of the Code of Criminal Procedure.
10. The term 'Foreigner' has not been defined in the Order. It will therefore, have the same meaning as assigned to it under the Foreigners Act, 1946- According to Section 2(a) of the Foreigners Act 'Foreigner' means a person who 'is not a citizen of India.'
11. Article 5 of the Constitution defines citizenship at the commencement of the Constitution. It reads as under:
5. At the commencement of this Constitution every person who has his domicile in the territory of India and
(a) who was born in the territory of India:
(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.
12. It is clear from the petitioner's own allegations that he does not satisfy any of. .the three conditions mentioned in Article 5. Admittedly neither he nor his parents was born in the territory of India-It is also not established that he had been ordinarily a resident of India for not less than five years immediately preceding the 26th of January 1950. The averments made in the petition are that he. his father and the rest of the family settled down in Calcutta in 1946 and staved there till 1971. It is surprising that not a shred of evidence has been filed by the petitioner to prove his stay in this country during the period 1946 to 26th January, 1950. Had it been a fact that hp staved in Calcutta in those years it would have been quite easy for him to adduce incontestable evidence to prove that fact- The only document filed by him is an identity form for members of Pakhtoon Jirga-e-Hind (Annexure A of rejoinder affidavit) wherein his nationality is described as Pakhtoon and the date of his arrival in India is mentioned as since 1946. That is obviously, the petitioner's own admission in his favour and no importance can be attached to it. It would have been quite easy for him to give a wrong date with ulterior motive on-the 1st January, 1966 when he got himself enrolled as a member of that organisation. In the absence of any other corroborative evidence we cannot rely on this. It is thus| clear that the petitioner does not satisfy the ingredients of Article 5 of the Constitution and was not a citizen of India at the commencement of the Constitution. He does not claim to have acquired Indian Citizenship in any other manner. It therefore follows that he is a 'foreigner' and paragraph 3 of the Order makes the provisions of Chapter 2 of the Foreigners. Act applicable to him. It may be noted that the Civil Authority has filed an affidavit stating that paragraph 8 of the Foreigners (Internment) Order was mentioned by inadvertent mistake in the order of detention and that the petitioner was detained only under the provisions of paragraph 5 of the Internment Order.
13. The learned Counsel for the-petitioner raised the plea that in order to attract the provisions of the Internment Order it was not enough that the petitioner1 should be a mere foreigner. He must also satisfy the other conditions pertaining to a foreigner as contemplated by paragraph 3. In other words he must be a person who or either of whose parents or any of whose grandparents was at any time a citizen or subject of any country at war with or committing external aggression-against India or of any other country assisting the country at war with or committing such aggression against India. Since there was nothing on record to prove-that the petitioner answered the above-description he could not be deemed to be the kind of foreigner against whom action could be taken under paragraph 3 of the Order, In our opinion this argument suffers from a fallacy. The use of the words 'other' preceding 'foreigner' is significant. This indicates that the word 'foreigner' in paragraph 3 is used in a comprehensive sense and also includes a national of Pakistan and may be distinguished from other species of foreigners. On a correct construction of paragraph 3 it appears that the other conditions enumerated therein, namely that he or his Parents etc. being at war with India etc- govern only the other foreigners and not that class of foreigners which is comprised of Pakistani nationals alone. Bearing in mind the wide amplitude in which the term 'foreigner has been used in paragraph 3 it seems that any national of Pakistan is 'ipso facto' a 'foreigner' for the purposes of the Order and the other conditions to which we have adverted need not be satisfied. It is only when a foreigner other than a national of Pakistan is .being examined that it becomes necessary for him to fulfil the requirements of his or his parents etc. being at war with India. A national of Pakistan is a foreigner simpliciter, if one may use that expression and the latter part of paragraph 3 does not govern the said foreigner. Therefore, if the Petitioner was a national of Pakistan he came within the ambit of the Order and no other condition was required to be established against him before he could be arrested under paragraph 5-
14. The next contention of the petitioner was that he was not a national of Pakistan. His consistent stand was that he was a Pakhtoon national and therefore paragraph 3 of the Internment Order was not applicable to him. He also relied on his description as Pakhtoon national in the identity form of the members of Jirga-e-Hind. Our attention was drawn to the impugned order of detention dated 16-8-1972 (Annexure 3 of the counter affidavit1) wherein also the Civil Authority had described the petitioner as 'a Pakhtoon national'. This argument is ingenious but untenable. It is contrary to the principles of International Law and the petitioner by merely styling himself as such or even the Civil Authority by loosely or under some misapprehension describing him in that fashion cannot alter the legal status of the petitioner. In our opinion there is no such entity as a Pakhtoon national in the present scheme of the comity of nations. Under International Law 'nationality' refers to States and not parts of the territory constituting a State. There is no such State as Pakhtoonistan, which is admittedly a part of the territory known as the State of Pakistan. Nationality must refer to a territory recognized as a 'State' in international law. Thus. State would be a pre-condition of nationality. At present there is no such State as Pakhtoonistan known to the world and hence the term Pakhtoon national is a misnomer. The petitioner was admittedly born in Pakhtoonistan, which is now a part of Pakistan. His legal status is therefore that of a Pakistani national- This proposition of law is fortified on the authority of all the leading writers on international law. Oppenheim says 'Nationality of an individual is his quality of being a subject of a certain State and therefore. its citizen.' Strake defines nationality in similar terms. Hp observes t 'Nationality is the most frequent and sometimes the only link between an individual and a State, ensuring that effect be given to that individual rights and obligations at international law. It may be defined as the status of membership of the collectivity of individuals whose acts, decisions and policy are vouchsafed through the legal concept of the State representing those individuals.' According to Fenwick 'Nationality may thus be defined as the bond which unites a person to a given State, which constitutes his membership in the particular State which gives him a claim to the protection of that State, and which subjects him to the obligations created by the laws of that State. 'The Harvard Draft Declaration of Nationalitv defines 'Nationality' as the 'status' of a national person who is attached to a State by the tie of allegiance. One of the best passages descriptive of such status is that contained in the judgment of the British Mexican claims Commission in Re Lunch. It runs fA man's nationality forms a continuing state of things and not a physical fact which occurs at a particular moment. A man's nationality is a continuing legal relationship, between the sovereign State on the one hand and the citizen on the other- The fundamental basis of a man's nationality is his membership of an independent political community. This legal relationship, involves rights and corresponding duties upon both on the Part of the citizen no less than on the Part of the State.'
15. Sri Asif Ansari appearing for the petitioner strenuously contended that the nationality of a person flowed from the race to which he belonged and since the petitioner derived from the Pakhtoon stock he must be deemed to be a Pakhtoon national. There is no warrant for such assumption in the realm of international law. We must bear clearly in mind the distinction between the meaning assigned to the term 'nationality' in popular parlance and the one attached to it in international law. The latter is concerned with the political. status of a person while determining his nationality. and not with his racial extraction. In law therefore, would be no justification for splitting up a person's political status into fragments on the basis of his racial antecedents. The approach of international law to 'nationality' is integera: it does not lend itself to compartmentalization. For instance, While India may be peopled by persons of diverse races such as Bengalis, Punjabis, Gujratis, Maharashtrians etc.. thev are all Indian nationals in the eve of international law and a parochial nationality cannot be assigned to each one of those communities. Oppenheim warns us against applying the popular notion to the legal concept of nationality. He aptlv remarks 'Nationality' in the sense of citizenship of a certain State must not be confused with 'nationality' as meaning membership of a certain nation in the sense of race. Thus, according to International Law, Englishmen and the Scotsmen are, despite their different nationality as regards race, all of British nationality as regards their citizenship. Thus further, although all Polish individuals are of Polish nationality qua race, for many generations there were no polish qua citizenship. Cheshire is also wary of any such possible confusion. He observes t 'Nationality is a possible alternative to domicile as the criterion of the personal law. These are two different conceptions. Nationality represents a man's political status, by virtue of which he owes allegiance to some particular country: domicil indicates his civil status and it provides the law by which his personal rights and obligations are determined.'
16. Thus, we come to the conclusion that the petitioner is a national of Pakistan and comes within the mischief of paragraph 3 of the Foreigners (Internment) Order, 1962.
17. Sri Asif Ansari vehemently urged that the burden was on the detaining authority to justify the detention of a detenu who applied for habeas corpus. In our opinion the instant case would be governed by the special provisions of the Foreigners Act, 1946 and the onus is on the petitioner to show that he is a citizen of India. We have already referred to the definition of 'foreigner' as a person who is not a citizen of India. We have already seen that prima fade the petitioner has failed to establish that he satisfied the conditions laid down by Article 5 of the Constitution so as to be deemed to be an Indian citizen at the commencement of the Constitution- Although he claims to have been in India since 1946. Yet no evidence such as letters, electoral roll, ration card etc. was adduced by him to prove his stay during the period. Since his case does not fall under Article 5 of the Constitution he is not a citizen of India and is a foreigner. Section 3 of the Foreigners Act gives wide powers to the Central Government for prohibiting, regulating or res- tricting the enter of foreigners into India or their departure therefrom or their presence or continued presence therein. Sub-section (2) (g) of the same Section adds that the order may provide that the foreigner shall be arrested and detained or confined. The Foreigners (Internment) Order, 1962 was issued under Sections 3, 4 and 8 of the Foreigners Act. In such circumstances Section 9 of the Foreigners Act is conclusive on the Question of onus of proof. It provides:
9. If in any case not falling under Section 8 ant question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act. 1872. lie upon such person.
The present case certainly does not fall under Section 8 and therefore the burden lay on the petitioner to prove that he was not a foreigner. He could discharge this burden by proving that he was an Indian Citizen but he has failed to do so. Paragraph 3 of the Foreigners (Internment) Order, 1962 makes it clear that Para. 5 thereof applies to any national of Pakistan and other foreigner who fulfills certain conditions. We have already held that the word 'foreigner' occurring in paragraph 3 of the Order is used in a comprehensive sense and includes any national of Pakistan. Since the petitioner has been unable to show that he was not a foreigner, the Civil Authority was competent to arrest him in the exercise of its Power under paragraph 5 of the Order- The same opinion was expressed by Gaiendraaadkar C. J. in Abd,ul Sattar v. State of Guiarat : AIR1965SC810 . In Paragraph 10 of the reports it was observed:
There is one more point which deserves to be mentioned before dealing with the merits of the case. The anpellant is being prosecuted under Section 14 of the Foreigners Act, 1946 (XXXI of 1946). In determining the question as to whether he is a foreigner within the meaning of the said Act or not, Section 9 of the said Act will have to be borne in mind. Section 9 applies to all cases under the Act, which do not fall under Section 8 and this case does not fall under Section 8 and so Section 9 is relevant. Under this section the legislature has placed the burden of proof on a person who is accused of an offence punishable under Section 14- This section provides, inter alia, that where any question arises with reference to the said Act, or any order made, or direction given thereunder whether any person is or is not a foreigner, the onus of proving that such a person is not a foreigner, shall notwithstanding anything contained in the Indian Evidence Act, lie upon such person, so that in the present Proceedings in deciding the question as to whether the appellant was an Indian Citizen within the meaning of Article 5 the onus of Proof will have to be placed on the appellant to show that he was domiciled in the territory of India on January 26, 1950 and that he satisfied one or the three conditions prescribed by Cls. (a), (b) and (c) of the said Article. It is on this basis that the trial of the appellant will have to proceed.
18. Another point urged before us by the learned Counsel for the petitioner was that the petitioner's detention in jail was illegal inasmuch as no provision in the Order authorised this. In the Jail Manual also there was no provision relating to the detention of such persons- It is not possible to take a very technical view in this regard. The only safeguard which is provided in paragraph 6 of the Order is that the manner of such detention or confinement shall not be more rigorous than the manner in which an arrested person is detained or confined while in police custody under the provisions of the Code of Criminal Procedure. So Ions as the Internment camps had not been established there was nothing to prevent the Civil Authority from keeping the petitioner in police custody or detaining him at any place he deemed suitable. We do not see any reason, therefore, why it could not detain him within the premises of the District Jail. Azamgarh. Such detention is warranted by paragraph 6 of the Order and it would not make the petitioner either a convict or a person amenable to the rules and regulations of the U. P. Jail Manual. All that the Civil Authority did was that instead of detaining the petitioner in the police lock up it got him detained in the better surroundings of the District Jail and we see no reason to interfere with its discretion.
19. Lastly, Sri Asif Ansari challenged the validity of the notification issued under Article 359 of the Constitution on which the respondents had chieflv relied. It is not disputed that on 3-12-71 the President of India issued a Proclamation of Emergency under clause (1) of Article 352 on account of the war with Pakistan. The inevitable effect of such Proclamation was the suspension of Article 19- It is clear from the provisions of Article 358 that the Proclamation of Emergency under Article 352 removes the fetters created on the legislative and executive powers by Article 19 and if during the pendency of such Proclamation the Legislature makes laws or the executive commits acts which are inconsistent with the rights guaranteed by Article 19 their validity is not open to challenge either during the continuance of the Emergency or even thereafter. Of course, since the Proclamation ceases to operate the legislative enactment passed and the executive actions taken during the course of the said Emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under Article 19. The reason is that since the Emergency is lifted Article 19 which was suspended during the Emergency automatically revives and begins to operate. The notification dated 3-12-19.71 was followed by another notification dated 5-12-1971 which is reproduced below:
No. 250/19/4/71-F. I.
Government of India
Ministry of Home Affairs.
New Delhi-1', the oth Dec. 1971.
G. S. Rule 1843: In exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person who is:
(a) a foreigner or
(b) a person who, or either of whose parents, or any of whose grandparents was at any time a citizen or subiect of any country committing external apgression against India or of any other country assisting the country committing such aggression against India.
to move any court for the enforcement of the rights, conferred by Article 14, Article 21 and article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 352 thereof on the 3rd December 1971 is in force. Explanation: In this order, the word 'foreigner' has the meaning assigned to it in the Foreigners Act, 1946 (31 of
20. The contention raised on behalf of the petitioner was that the above notification issued under Article 359(I) was invalid inasmuch as it contravened Articles 14, 21 and 22 of the Constitution. This argument suffers from an apparent fallacy and is in fact arguing in a circle. Sri Asif Ansari submitted that even an order of the President under Article 359 had to comply with the provision of Article 14 and its validitv could be impugned if it infringed the same- He relied on certain observations made in the case of, Ghulam Sarwar v. Union of India : 3SCR618 , decided by five Judees of the Supreme Court. In paragraph 16 of the reports it was observed:
Article 359(1) does not operate by its own force. The President has to make an order declaring that the right to move a court in respect of a fundamental right or rights in Part III is suspended. He can only make an order which is a valid one.
It was further observed that.
An order making an unjustified discrimination in suspending the right to move a court under Article 14, would be void at its inception and would be a stillborn order.
Our attention was drawn to the inference reached by Subba Rao, C. J-, in the same paragraph which is in these words:
We therefore, hold that the validity of the President's order issued under Article 359(1) could be questioned if it infringed the provisions of Article 14 of the Constitution.
21. The above observations in Ghulam Sarwar's case : 1967CriLJ1204 (supra) were, however, overruled by the Supreme Court in the case of Mohd. Yaqub v. State of Jammu and Kashmir : 1968CriLJ977 . In the latter case it was held that the contention that an order passed under Article 359(1) suspending the enforcement of a particular fundamental right had still to be tested under the very fundamental right which it suspended would be arguing in a circle and make Article 359 completely nugatory. Referring to the observation in Ghulam Sarwar's case. Wanchoo C. J. remarked in paragraph 9 of the reports:
With greatest respect it is difficult to appreciate this reasoning and the distinction on which it is based. It seems to us that if Article 359 is to have any meaning at all and is not to be wiped out from the Constitution an order passed thereunder suspending a fundamental right cannot possibly be tested under that very fundamental right which it suspends. If that were permissible no order under Article 359 could really be passed. If Article 359 is not to be rendered nugatory, it must be held that an order passed thereunder cannot be tested under the very fundamental right the enforcement of which it suspends. We must therefore respectfully differ from the view taken in Ghulam Sarwar's case : 1967CriLJ1204 and hold that an order passed under Article 359(1) cannot be tested with the aid of Article 13(2) under that very fundamental right the enforcement of which it suspends.
22. In fact, Mohd. Yaqub's case : 1968CriLJ977 (supra) reiterates the law laid down in an earlier seven Judee decision in Makhan Sinsh v. State of Punjab : 1964CriLJ217 . Gaiendragadkar J. summed up the proposition in these words:
If the Presidential Order precludes a citizen from moving the Court for the enforcement of the specified fundamental rights, it would not be open to the citizen to urge that the Act is void for the reason that it offends against the said fundamental rights. It is in order to prevent the citizen from making such a claim that the Presidential Order has been issued and so. during the period of its operation, the challenge to the validitv of the Act cannot be entertained....
Therefore, our conclusion is that the proceedings taken on behalf of the appellants before the respective High Courts challenging their detention on the ground that the impugned Act and the Rules are void because thev contravene Articles 14. 21 and 22 are incompetent for the reason that the fundamental riehts which are alleged to have been contravened are specified in the Presidential Order and all citizens are precluded from movine any Court for the enforcement of the said specified rights.' Makhan Singh's case referred to an earlier decision of the Supreme Court in Mohan Choudharv v. Chief Commr. Tripura : 1964CriLJ132 which rejected the detenu's habeas corpus petition on the eround that it was barred by the Presidential Order and refused to entertain the argument that the Ordinance. Act and the Rules framed thereunder were void for the reason that thev contravened Articles 14, 21 and 22 with the observation that the challenge made by the petitioner in that behalf reallv amounted to arguine in a circle, it was specifically held that as a result of the Presidential Order under Article 359(1) of the Constitution the Court's power under Article 32 had not been suspended vet the petitioner had lost his locus standi to move the court during the period of Emergency, it was observed:In order that the Court may investigate the validitv of a particular ordinance or act of a legislature, the person moving the Court should have a locus standi. If he has not the locus standi to move the court, the Court will refuse to entertain his petition auestionina the vires of the particular legislation.
23. Therefore we came to the conclusion that the President's Order dated 5-12-1971 issued under Article 359 cannot be tested on the any il of Articles 14, 21 and' 22 of the Constitution.
24. The learned Counsel for the petitioner submitted that there was another infirmity in the aforesaid order inasmuch as it purported to be confined to only a class of persons and was note of several application. Our attention was drawn to clause (2) of Article 359 which provides that an order made may extend to the whole or any part of the territory of India. In our opinion, this wide Dower by necessary implication includes the power to issue a limited order. There is no prohibition in the Article about restricting its scope. This kind of argument was repelled both in Makhan Singh's : 1964CriLJ217 and Ghulam Sar-war's cases : 1967CriLJ1204 and Subba Rao, C. J. remarked in the latter case. 'But there is nothing in the Article which prevents the President from restricting the scope of the order to a class of persons, provided the operation of the order is confined to an area and to a period. The impugned orders -apply to the entire country and the fact that only the persons who are affected by that order could not move the court for the enforcement of their right cannot make them any the less valid orders.'
25. For the reasons stated above we are of the opinion that the petitioner's habeas corpus petition is not maintainable. We are alive to the sanctity of the liberty of person guaranteed in a democracy and the solemn duty of the courts to uphold the fundamental rights of the citizens but the discharge of such duty must be tempered by another mandate of our written Constitution, how, that in a period of Emergency the right of the citizens to move the courts itself may be suspended in the larger interest of the nation. Gajendragadkar J. had in mind the necessity of such harmonious enforcement of the Constitution when he remarked in Makhan Singh's case : 1964CriLJ217 (supra). 'But we must remember that the democratic faith in the inviolable character of individual liberty and freedom and the majesty of law which sustains it must ultimately -be governed by the Constitution itself. The Constitution is the law of laws: the para--mount and supreme law of the country.'
26. In the result this habeas corpus petition fails and is dismissed.