A. Pasayat, Acting C.J.
1. These two writ applications being inter- linked are taken up for disposal to be governed by this judgment. In O.IC No. 1 7236 of 1 998 petitioners Salim Khan alias Hassan has called in question legality of direction given by the State Government by its order dated 6.1.1998 as issued by the Home Department requiring him to quit the country. Similarly order of the Superintendent of Police and D.P.O. Dated 17.3.1998 requiring him to leave the country as extension of stay as granted in his favour was going to expire on 29.3.1998 is under challenge. In the later order, failure was indicated to make the petitioner liable Under Section 14 of the Foreigners Act, 1946 (in short, the 'Act') for violation of Section 3(2)(e) thereof. Former order was issued in exercise of powers conferred by clause (c) of Sub-section (2) of Section 3 of the Act read with notification No. 4/3/56(1 )F.I. dated 19.4.1958 of the Government of India in the Ministry of Home Affairs. For contravention of the order, action as provided in the Act was to be taken.
In OJC No. 3462 of 1999 prayer has been made by Naimeum Nisa alias Husna claiming to be wife of Salim Khan, petitioner in OJC No. 17236 of 1998 to treat Salim as a citizen of India keeping in view the provisions of Article 5 of the Constitution of India, 1950 (in short, the 'Constitution') and Section 5(1)(b) and Section 5(1)(c) of the Citizenship Act, 1955. and for a direction to the Central Government to adjudicate whether Salim had voluntarily accepted citizenship of any foreign country as required Under Section 9(2) of the said Act.
2. The opposite parties have taken the stand that the writ applications are misconceived; the factual position goes to show that without any legal sanctity Salim has continued to stay in the country beyond the period authorised, and therefore, the directions given are in order.
3. A brief reference to the factual position as highlighted by the parties needs to be noted.
In 1982 Salim married to a Pakistani girl, who came to India with Pakistan passport,. Salim left India in 1984 and came back in 1990. He again went back to Pakistan in 1994 and in 1997 he obtained Pakistan passport on the basis of Pakistan citizenship. He came to India in 1998. Reliance has been placed by the petitioner on certain documents to show that he was born in India in the hear 1 960, and is a permanent citizen of Cuttack City. As various attempts were made on his life, in order to save it and look after his old mother and under compulsion by arranging a Pakistan passport he came to India. Therefore, the act of obtaining the pass-port is neither voluntary in nature nor by way of registration as a Pakistan citizen. After reaching Cuttack, he submitted an application under the Citizenship Act before the State Government as well as before the Secretary to the Government of India, Ministry of External Affairs requesting them to treat him as a citizen of India. It is his specific stand that at no point of time he had accepted citizenship of Pakistan. It is to be noted here that Salim was in custody in terms of Section 14 of the Act. Naimeun, petitioner in OJC No. 3462 of 1999 married Salim on 9.12.1998.
4. Learned counsel for opposite parties submitted that the petitioner having accepted that in the pass-port issued by the Pakistan Government he has been described as a Pakistan citizen and on that basis visa having been issued, the present stand that he is citizen of India is without any basis.
5. In order to appreciate the rival contentions on factual aspects it is necessary to take note of few statutory provisions. Article 5 to 11 of the Constitution deal with citizenship. Article 5 provides that every person specified, who has his domicile in the territory of India at the commencement of the Constitution and is covered by any of the conditions in Clauses (a), (b) and (c) thereof shall be citizen of India. Article 8 deals with right of citizenship of any person who or either of whose parents or any of whose grand-parents was born in India, notwithstanding anything contained in Article 5. Article 9 provides that no person shall be a 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 citizenship of any foreign State. Constitution does not make any provision with respect to acquisition of citizenship after its commencement or the termination of citizenship or other matters relating to citizenship. Under Article 11, Constitution expressly saves the power of Parliament to make a law to provide such matters. To supplement the provisions of the Constitution in regard to such matters, Citizenship Act has been enacted. It is an Act enacted to provide for acquisition and determination of Indian Citizenship. It provides for acquisition of citizenship after commencement of the Constitution by birth, descent, registration, naturalisation, being covered by Assam Accord and incorporation of territory.
6. Acquisition of citizenship is provided for in Sections 3 to 7 and termination of citizenship is provided for in Sections 8 to 10. The Citizenship Rules, 1956 (in short, the 'Citizenship Rules') framed Under Section 18 of the Citizenship Act deal with various aspects relating to citizenship. Rule 30 which is relevant for the purpose of this case reads as follows :
'30. Authority to determine acquisition of citizenship of another c.ountry :
(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 purpose of Section 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.'
Sub-rule (1) of Rule 30 provides that if any question arises as to whether, when or how any person has acquired the citizenship of another country, the determination has to be made in terms of Section 9(2) of the Citizenship Act. A reference to Part III of the Schedule to the Citizenship Rules is also necessary as Sub-rule (2) provides that while determining any such question, due regard has to be given to the rules of evidence specified in the said Schedule. Same reads as follows :
'23. I have/have not previously renounced or been deprived of the Citizenship of India.
(If the applicant has renounced his or her Indian Citizenship, here state the date on which the declaration of renunciation was made; or if he or she has been deprived of his or her citizenship state the date on which and the authority by whom, the order of deprivation was made.)
24. I have/have not previously applied for registration as a Citizen of India and the application has not been rejected.
25. Names and full addresses of two references in India to whom the applicant is well known.
26. I declare that my intention is to make India my permanent home; and hereby apply to be registered as a citizen of India.
I, A-B do solemnly and sincerely declare that the foregoing particulars stated in this application are true, and I make this solemn declaration conscientiously believing the same to be true.
Made and subscribed this............................day..............of...............19.........before me.
I, the undersigned, hereby state that I am an India citizen otherwise than by naturalisation; that I am a householder; and that I am not the solicitor or agent of..............I vouch for the correctness as of the statements made by..............in his application for.............
Name (IN BLOCK LETTERS)
Full Postal Address
I, A-B....................do solemnly affirm (or swear) that I will bear true faith and allegiance to the Constitution of India as by law established, and that I will faithfully observe the laws of India and fulfil my duties as a citizen of India.
Affirmed/Sworn and subscribed this.............day of............. 19...........before me.
Reference to Section 9 of the Citizenship Act at this juncture would be appropriate. Same reads as follows :
'9. Termination of citizenship - (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 commencement 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, until the Central Government otherwise directs.
(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.'
6. A combined reading of the provisions referred to above makes it clear that under Rule 30 of the Citizenship Rules, an enquiry has to be made whether the concerned person has accepted nationality of another country 'voluntarily'. The question as to whether, when and how voluntary citizenship has been acquired has to be determined having regard to the rules of evidence prescribed and termination of Indian citizenship being the consequential, voluntary acquisition of foreign citizenship, the authority has to determine that such latter citizenship has been voluntarily acquired. The Central Government must arrive at a decision that the Indian citizen has voluntarily acquired the foreign citizenship before action can be taken against him on the footing that his citizenship is terminated. If a plea is raised by the concerned person that he had not voluntarily obtained the passport the citizen must be afforded an opportunity to prove that fact. The said position was highlighted by the apex Court in Md. Ayub Khan v. Commissioner of Police, Madras and Ors. : AIR 1965 SC 1623. Section 9(1) of the Citizenship Act provides for termination of citizenship of an Indian citizen if he has (subject to the proviso) by naturalisation, registration or otherwise, voluntarily acquired citizenship of another country. Subject to the exception in the proviso, therefore, naturalisation, registration or acquisition of citizenship of another country operates to terminate the citizenship of India. Acquisition of citizenship of another country to determine Indian citizenship must, however, be voluntary. By Sub-section (2) provision is made for setting up an authority to determine the question where, when and how citizenship of another country has been acquired, and by Rule 39, the Central Government is designated as the authority which is invested with power to determine the question in such manner, and having regard to such rules of evidence as may be prescribed. Provision for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry, that the citizen concerned has obtained a passport of another country. The question as to whether, when and how foreign citizenship has been acquired has to be determined having regard to the rules of evidence prescribed, and termination of Indian citizenship being the consequence of voluntary acquisition of foreign citizenship, the authority has also to determine that such latter citizenship has been voluntarily acquired. Determination of the question postulates an approach as in a quasi-judicial enquiry; the citizen concerned must be given due notice of the nature of the action which in the view of the authority involves termination of Indian citizenship, and reasonable opportunity must be afforded to the citizen to convince the authority that what is alleged against him is not true. What the scope and extent of the enquiry to be made by the authority on a plea raised by the citizen concerned should be dependent upon the circumstances of each case.
Paragraph I of Schedule III of Citizenship Rules, which raises a rebuttable presumption, when it appears to the Central Government that a citizen has voluntarily acquired foreign citizenship, casts the burden of proof upon the citizen to disprove such acquisition, and paragraph 2 which authorises the Central Government to make enquiries for the purpose of determining the question raised, strongly support the view that the Central Government must arrive at a decision that the Indian Citizen has voluntarily acquired foreign citizenship, before action can be taken against him on the footing that his citizenship is terminated. Paragraph 3 raises a conclusive presumption that a citizen of India who has obtained a passport from a foreign country on any date, has before that voluntarily acquired citizenship of that other country. By the application of the rule in paragraph 3 the authority must regard obtaining of a foreign passport on a particular date as conclusive proof that the Indian citizen has voluntarily acquired citizenship of another country before that date. But obtaining of a passport of a foreign country cannot in all cases merely mean receiving the passport. If a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. Cases may be visualised in which on account of force a person may be compelled or on account of fraud or misrepresentation he may be induced, without any intention of renunciation of his Indian citizenship, to obtain a passport from a foreign country. It would be difficult to say that such a passport is one which has been 'obtained' within the meaning of paragraph 3 of Schedule III and that a conclusive presumption must arise that he has acquired voluntarily citizenship of that country. It is not the function of the Courts to determine whether the plea raised by a citizen is true or not; it is for the authority invested with power Under Section 9(2) to determine that question, if it is raised.
7. The position in law was again reiterated in Lai Babu Hussain and Ors. v. Electoral Registration Officer and Ors. : AIR 1995 SC 1189. It is to be noted that Section 9 of the Citizenship Act has no application to petition under Article 226 of the Constitution against a person Under Section 3(2)(C) of the Act, because the question therein is whether that person is a foreigner or an Indian citizen (see The Union of India and Ors. v. Ghaus Mohammad : AIR 1961 SC 1526). As the factual position highlighted above goes to show, petitioner Salim has raised a dispute which needs adjudication Under Section 9 of the citizenship Act.
8. That being the position, we direct the Central Government to make an enquiry as contemplated Under Section 9(2) of the Citizenship Act. It goes without saying that presumption available from holding of passport and other relevant aspects as provided in Part III of the Schedule and Rule 30 shall be taken note of. As citizenship of a person is involved, it would be appropriate if the decision is taken within three months from today.
9. So far as custody of Salim is concerned, it has to be noted that the order passed by the authorities was Under Section 3(2)(C) of the Act when authorised period of stay had expired. Merely because no decision has been taken on the citizenship aspect, it cannot.be said that the order is vitiated. On the date it was passed, citizenship question had not been adjudicated and decided. Therefore, we are not inclined to accept the prayer made by Naimeun for release of the petitioner Salim pending decision.
The writ applications are disposed of accordingly.
P.K. Misra, J.
10. I agree.