Bishan Narain, J.
1. On 19-5-1957 a notice on behalf of the Delhi State was issued under Section 3(2)(c) of the Foreigners' Act, 1946 read with Foreigners Laws (Amendment) Ordinance, 1957 whereby the Chief Commissioner directed Nasir Ahmad, his wife Mrs. Aziz Fatima and their minor daughter not to remain in India after the expiry of three days from the date on which the notice is served on them and shall not thereafter re-enter India. This notice was issued on the ground that Nasir Ahmad, his wife and their minor daughter were Pakistani nationals.
Nasir Ahmad thereupon filed this petition on (31-5-1957, under Article 226 of the Constitution challenging the validity of this order on the ground that the petitioner, his wife and their miner daughter were not Pakistani nationals. The petitioner in this petition has alleged that besides himself, his wife and their minor daughter, the petitioner has four other children residing with him in Delhi. He has also alleged that they were all born in Delhi and that he and his wife are duly registered as electors in the Electoral Rolls. He further alleged that in the year 1950, the petitioner had gone to Pakistan for a short stay and had remained there temporarily for a few months. According to the petitioner he and his wife were born in India and they never migrated to Pakistan,
2. The respondent in this case has given some additional facts in the reply filed in this Court. In this reply it is not denied that the petitioner or his wife or his children were born in Delhi. The respondent's case, however, is that the petitioner went to Pakistan for the first time in March, 1950 and visited India on 17-8-1950 on the basis of a temporary permit granted to him by the Indian High Commissioner in Pakistan.
3. It is further stated that on 26-11-1951, the petitioner and his family left for Pakistan by air from the Willingdon Air-port and that subsequently he was found in India without any permit. Finally it is alleged that thereupon he was prosecuted under Rule 3 read with Rule 6 of the Indian Passport Rules, 1950, and was sentenced to a fine of Rs. 200/- and was ordered to he deported to Pakistan within fifteen days from the date of that order but on appeal the order of deportation was set aside but his conviction and imposition of fine of Rs. 200/- were maintained.
4. I take the facts given above to be correct for the purposes of this petition. The question arises whether in these circumstances the notice dated 19-5-1957, under the Foreigners Act, 1946, can be considered to be valid in law.
5. Now it is clear from these pleadings that the petitioner, his wife and his child were Born in India and were domiciled here at the commencement of the Constitution on 20-1-1950 as it is the Government's own case that he left India for Pakistan for the first time in March, 1950. He and his family members must therefore be held to be citizens of India within the provisions of Article 5 of the Constitution at the time when it came into force. The order of deportation has been made against the petitioner and his family on the basis and assumption of their being Pakistani nationals.
According to the Government the petitioner lost his citizenship of India some time after March, 1950 and price to the date of the order of deportation. The petitioner's case, however, is that neither he nor his family members have lost the citizenship of India. The question to be determined in this petition is when if ever and how the petitioner lost his citizenship of India. Before dealing with the facts of the case I may describe the provisions of law which are relevant for this purpose.
6. Articles 5, 6 and 8 of the Constitution lay down provisions for acquiring citizenship of India at the commencement of the Constitution on 26-1-1950. Article 7 lays down that any person migrating to Pakistan after 1-3-1947, shall not be deemed to be a citizen of India. Article 9 provides that if a person acquires the citizenship of any foreign state then he shall not be considered to be a citizen of India.
It is, however, clear from Article 11 that all these constitutional provisions are subject to legislation by Parliament including the provisions in Article 10 to the effect that a person who is or is deemed to be a citizen of India under Articles 5 to 8 shall continue to be such citizen. As was to be expected these constitutional provisions do not lay down any procedure or machinery to determine whether a particular person is or is not a citizen of this country.
7. The learned counsel for the respondent has relied on the Foreigners Act 1946 and the Citizenship Act, 1955 as relevant for the purposes of the present discussion. Now the Foreigners Act 1948 as its name and title indicate applies only to Foreigners who are defined in Section 2(a) of the Act as persons who are not citizens of India. It enables the Government under Section 3(2)(c) inter alia to order deportation of a foreigner from India.
The Act, however, does not provide any machinery nor does it lay down any procedure for determining whether a person is or is not a foreigner, Section 8 of the Act empowers the Central Government to determine the nationality of a foreigner where he is recognised as a national of more than one foreign country or where his nationality for any reason is uncertain.
This provision has no application to a person who alleges himself to be a citizen of India nor is it anybody's case that any decision has been made under this section. Section 9 merely lays down the rule of evidence as to burden of proof where the dispute is whether a particular person is or is not a foreigner, The section does not provide any machinery for the determination of this dispute and therefore this Act is of no assistance in determining the question involved in the present case.
8. This brings me to the Citizenship Act of 1955. Sections 3 to 7 lay down how citizenship of India can be acquired. In the present case we are not concerned with these provisions. Sections 8 to 10 lay down how citizenship can be lost. It can be lost by renunciation and by registration of such a declaration (Section 8). It can be terminated if the person concerned voluntarily acquires the citizenship of another country (Section 9). The Central Government may in certain circumstances deprive a citizen of his citizenship (Section 10).
In case of doubt the Central Government may certify that a person with respect to whose citizenship a doubt exists has prima facie satisfied the Government that, the person concerned is a citizen of India under the Constitution or under the Citizenship Act, 1955 and is recognised as such. (Section 13 read with Form VI of the Rules). If there is any dispute under Section 9 as to when and how any person has acquired the citizenship of another country then under Section 9(2) it shall be determined by such authority and in such manner as Rules made under the Act prescribe. Rule 30 relates to the determination of this dispute and reads--
'Rule 30 (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 Section 9(2), be the Central Government.
Rule 30 (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 reads--
''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.'
9. From the narration of these statutory provisions it is clear that before the enactment of the Citizenship Act of 1955, there was no machinery provided for determining whether a citizen of this country had lost his citizenship and if so when and how. All that Article 10 states is that there shall be presumption in favour of a citizen continuing to be so. Such a dispute, therefore, before this Act came into force could be determined only by Courts of law and a party who alleged that the person concerned had lost his citizenship had to prove it. This has been so held by the Supreme Court in Mobarik Ali Ahmed v. The State of Bombay, (S) AIR 1957 SC 857, wherein an accused charged under Section 420, Indian Penal Code, pleaded that at the time of the Commission of the alleged offence he had lost his citizenship of India.
10. The Citizenship Act has completely changed the position. In the present case we are concerned with the termination of citizenship which was acquired on 26-1-1950 by virtue of Article 5 of the Constitution. Section 9 of the Act deals with the matter under consideration. It is clear from Section 9(2) read with Rule 30 and Schedule III that in such a dispute it is the Central Government only that has the power to decide it and for this purpose it has to require the citizen concerned to prove that he has not voluntarily acquired the citizenship of another country and it will be for him to prove this negative position. Presumably this enquiry is to take place at the instance of the Central Government on receiving certain information that the person concerned has lost the citizenship of India.
11. Let us now see how those statutory provisions affect the present case. The deportation order in the present case has been made after the enactment of the Citizenship Act of 1955. This order has been made under Section 3(2)(c) read with the Foreigners Laws (Amendment) Ordinance 1957. The Ordinance, however, had been repealed by that time and its place has been taken by the Foreigners Laws (Amendment) Act, 1957, This error, however, is not so fundamental as to affect the validity of the deportation order.
The order has been made on the basis that the petitioner is a Pakistani national. There is no denial by the State of the Petitioner's case that at the commencement of the Constitution he and bis family members were citizens of India under Article 6 of the Constitution nor is it the State's case that under Article 7 of the Constitution the petitioner and his family members should be deemed not to be citizens of India nor is its case that the petitioner's citizenship had been terminated by the Central Government after proceedings had been taken in accordance with Rule 30 read with Schedule Ill made under the Citizenship Act of 1955.
The Delhi State, however, has given certain facts in the written statement filed in this Court relating to the petitioner's visits to Pakistan and his conviction under the Passport Act and the Rules framed thereunder. On the basis of these facts it has been argued on behalf of the State that the authorities under the Foreigners Act, 1946, were justified in issuing deportation order against the petitioner, his wife and his child as in their opinion they had ceased to be citizens of India and had become Pakistani nationals.
It is argued that if the petitioner is dissatisfied with this order the petitioner should move the Central Government under the Citizenship Act and that it is not open to this Court in these proceedings to interefere with the decision of the authorities who had ordered petitioner's deportation on the basis that they were foreigners. It is necessary to examine the soundness of this contention.
12. As I have already said the Foreigners Act, 1940, has no application to citizens of India as that Act applies only to foreigners. The Foreigners Act does not lay down any machinery for determining whether a particular person is a foreigner or not. The deportation orders issued under the Act generally give only a few days within which the person concerned must leave the country. In this case only three days were allowed for this purpose.
It is not possible for the person concerned to apply to the Central Government under the Citizenship Act and obtain a decision from it within the limited time available to him. The only course open to him therefore is either (1) to obey the deportation order and leave the country and then try from a foreign country to prove to the Central Government that he had not lost his citizenship of India or (2) to disobey the said order and then when he is prosecuted under Section 14 of the Foreigners Act for such disobedience, he should apply to the Criminal Court to get this dispute decided by the Central Government as it is no longer possible for the Courts of Law to decide this issue.
Neither remedy can be considered to be adequate. The view contended by the State imposes an impossible and intolerable burden on a citizen of India to prove that he continues to be so because the person concerned must do so either from a foreign country which may or may not be friendly to him or at the risk of going to jail for any period extending up to five years, This in my view in substance amounts to a denial of the right to a citizen to show that he continued to be so and this is being denied in spite of Article 10 of the Constitution.
If this view of the State prevails then it will be open to the Executive Authority by an order to deport any citizen of India of whatever religion and a believer in whether political ideology or any citizen who is in disfavour with it and this can be done suddenly without any notice to him and without giving him any opportunity to show cause against the proposed action.
Article 19 of the Constitution guarantees freedom of movement to every citizen of India and this guarantee will be negatived and will become illusory if a citizen can be deported under the Foreigners Act without any previous enquiry and without giving him an opportunity to show that he is still a citizen of India. The provisions of the Citizenship Act are also against the adoption of the view set up by the State in this case.
Clause 1 of Schedule III reproduced above contemplates that the Central Government presumably on obtaining material to the effect that a person has acquired nationality of another country must give an opportunity to the person concerned to show cause against the proposed termination of his citizenship of India. This provision will be rendered ineffective if the view set up by [he State is accepted.
In this connection it must also be remembered that Clause I of Schedule III does not lay down any procedure for filing an application by a citizen of India to the Central Government to show that he continues to be such a citizen. There is another way of looking at the matter. Section 5 of the Citizenship Act lays down that a person can apply for registration as a citizen and under Section 8 a person may make a declaration renouncing his Indian Citizenship.
A person's right to citizenship can be terminated under Sections 9 and 10 after an enquiry has been held on notice to the person concerned. In the circumstances it will be unreasonable to hold that a citizen of India may be deported under the Foreigners Act without any land of enquiry as to when and how he has lost his citizenship. For these reasons, I have no hesitation in rejecting this contention of the learned counsel for the respondent.
13. This brings me to Section 13 of the 1955 Act. It is rather vague as no test is laid down therein as to when a person's citizenship gets in doubt. It could not be the intention of the legislature that whenever a citizen of this country visits a foreign country on business or otherwise for short or long time his citizenship becomes doubtful and he must necessarily apply under Section 13 of the Act to escape the risk of being deported under the Foreigners Act.
It is however not necessary to discuss the effect of this provision in the present case as it is not denied that the petitioner and his family members are citizens of India under the Constitution and the certificate under Section 13 states only this fact. This certificate in respect of a person's citizenship under the 1955 Act has no application to the present case as the petitioner being a citizen under the Constitution does not require it under the Citizenship Act. I am, therefore, of the opinion that Section 13 of the 1955 Act has no application to the present case.
14. The learned counsel for the respondent then urged that the facts disclosed in the written statement show that the petitioner and his family had migrated to Pakistan arid had become Pakistani nationals and in the exercise of my discretion I should not interfere with the order of deportation. For this purpose he relied on several unreported decisions of this Court.
Even after the lapse of a fortnight I have not been able to get copies of all these judgments but no useful purpose will be served by delaying judgment in this case any further as the copies avail-able show that those decisions are based on particular facts and circumstances of those cases. Migration or adoption of nationality of another country are questions of fact which to a certain extent also relate to the intention of the party concerned. These matters must be determined by the Central Government under the Citizenship Act and the Rules made thereunder and not by any other authority.
It is, therefore, impossible for me to express my views on these matters or to lay down whether prima facie these facts establish migration of the petitioner to Pakistan or whether these facts prima Facie show that the petitioner and his family members had acquired the nationality of Pakistan or not. Moreover in these summary proceedings it is impossible to give adequate opportunity to the parties to bring the entire material relevant for the purposes of determining the present dispute.
15. After considering the provisions of the Constitution of India and the statutory provisions I have come to the conclusion that no order under the Foreigners Act 1946 can be passed against a person who admittedly at the commencement of the Constitution was a citizen of India unless his citizenship had been previously terminated by the Central Government under the Citizenship Act and the Rules framed thereunder. I may make it clear that if a person at the commencement of the Contitution is not a citizen of India or is deemed not to be so under Article 7 then he can be treated as a foreigner unless subsequently he acquires or has aquired citizenship of this country under the provisions of the Citizenship Act of 1955.
16. For these reasons, I hold that the authorities under the Foreigners Act, 1946, had no power and jurisdiction to order the deportation of the petitioner, his wife and his child to Pakistan without the previous decision of the Central Government under Section 9(2) of the Citizenship Act 1955 that the petitioner and his family members had lost the citizenship of India on the ground that they had acquired citizenship of Pakistan.
17. Accordingly, I accept this petition and quash the order of deportation dated 19-5-1957.