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K. Mohammad Ahmed Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 253 of 1982-J
Judge
Reported inAIR1984Ker146
ActsCitizenship Act, 1955 - Sections 5(1), 9 and 9(2)
AppellantK. Mohammad Ahmed
RespondentState of Kerala and ors.
Appellant Advocate P.K. Shamsuddin and; A.A. Abdul Hassan, Advs.
Respondent Advocate Govt. Pleader,; P.C. Chacko and; P. Santhalingam, Ad
Cases ReferredAbdus Sarriad v. State of W. B.
Excerpt:
constitution - citizenship - sections 5 (1), 9 and 9 (2) of citizenship act, 1955 - application for citizenship filed under sections 5 and 9 - application under section 9 rejected for reason of filing of application under section 5 - by virtue of section 9 (2) government liable to decide upon matter on merits - government failed to conduct enquiry before rejecting matter - held, central government directed to decide matter on merits. - - he came from a poor family and he was illiterate, poverty preventing him from prosecuting his studies beyond the second standard......remain in india he was sought to be deported to pakistan. he took advice from his friends; and he filed applications before the central government. he filed an application under section 9(2) of the citizenship act, and he seems to have filed another; application under section 5(1) of the same act for registration as an indian citizen. the petitioner has repeated in his applications that he continues to be an indian citizen. when eventually his application under section 9(2) was rejected on 30-10-80 as per ext. p2, and deportation was issued on 28-12-99 (ext. p3), the present writ petition was filed. he has got a stay and he continues in india.3. exhibit p2 states that the petitioner's application under section 9(2) of the citizenship act cannot be entertained in view of his application.....
Judgment:
ORDER

V. Bhaskaran Nambiar, J.

'Breathes there the man with soul so dead who never to himself hath said, This is my own, my native land !'

--Sir Walter Seott.

'Citizenship is man's basic right; for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen.'

(Chief Justice Earl Warden in Perez v. Brownell).

1. Here is a petitioner who craves for Indian citizenship and cries for the determination of his rights by the Central Government. The Government dealt him a hard blow on harsh technicality. And so, to the brief facts :

2. When India became free, Mohammad Ahmed, the petitioner was an Indian citizen. He was born in 1938 in Kerala. He had thus his roots in India where his parents, brothers and sisters were also born. He married a woman also bora in India. He came from a poor family and he was illiterate, poverty preventing him from prosecuting his studies beyond the second standard. He was, however, enterprising and even adventurous. 'He plunged into the deep without fear' and reached Bombay and served as a supplier in a small hotel till 1953. In 1953, one Seethi Koya Thangal, also from his village promissed him batter prospects and took him to Karachi where he worked in the Muslim Hotel till 1956. He had to return to India and he did. He says, on the advice of his friends he put his mark on several blank papers, got his travel docu-ments and reached his homeland. He state that he did not have any intention to change his domicile or acquire the citizenship of Pakistan. He desires to remain in India He was sought to be deported to Pakistan. He took advice from his friends; and he filed applications before the Central Government. He filed an application under Section 9(2) of the Citizenship Act, and he seems to have filed another; application under Section 5(1) of the same Act for registration as an Indian citizen. The petitioner has repeated in his applications that he continues to be an Indian citizen. When eventually his application under Section 9(2) was rejected on 30-10-80 as per Ext. P2, and deportation was issued on 28-12-99 (Ext. P3), the present writ petition was filed. He has got a stay and he continues in India.

3. Exhibit P2 states that the petitioner's application under Section 9(2) of the Citizenship Act cannot be entertained in view of his application under Section 5(i) of the Act. The reason seems to be that the petitioner's 'plea of having been an Indian citizen stands repelled' in view of his application under Section 5(1) of the Act which posits that he is a foreign citizen and therefore no question can arise at all for determination by the. Central Government of his national status.

4. The short question therefore is whether the filing of an application under Section 5(1) of the Citizenship Act will preclude the consideration of an application under Section 9(2) of the same Act by the Central Government. For this, it is necessary to briefly survey the relevant provisions of the Constitution and also the Citizenship Act.

5. Under Article 5 of the Constitution any person who, at the commencement of the Constitution, had his domicile in the territory of India, and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who have been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, is deemed to be a citizen of India. Article 6 deals with the acquisition of the rights of citizenship of persons who have migrated to India from Pakistan. 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 the citizenship of any foreign State.

6. In 1955 the Parliament enacted the Citizenship Act 57 of 1955. It provided for the acquisition and determination of Indian citizenship.

7. Citizenship by birth and by descent are provided to Sections 3 and 4 of the Act. Indian citizenship can be renounced under Section 8 and can be deprived under Section 10. Sections 5, 6 and 7 apply to persons who are not citizens of India. Section 6 provides for citizenship by nationalisation and Section 7 relates to citizenship by incorporation of territory to the Indian Union.

8. Section 5, relevant here, states that subject to its provisions and such conditions and restrictions as may be prescribed, any person who is not already such citizen by virtue of the Constitution or by virtue of any of the other provisions of the Act and who belongs to certain specified categories mentioned therein, may file an application for registration as a citizen of India.

9. Section 9 more crucial in the present context, reads thus :--

'9. (1) Any citizen of India who by naturalisation registration or otherwise voluntarily acquires, or has at any time between the 26th Jan., 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.'

10. Under Section 9 it is therefore incumbent on the authorities to decide the dispute, if any question arises as to whether, when, or how, any Indian citizen has acquired the citizenship of another country. The acquisition of the citizenship of another country voluntarily or by naturalisation or registration forfeits his tight to be an Indian citizen. The enquiry therefore postulates that the applicant was at one time an Indian citizen and concludes with a decision whether there has been a termination of the Indian citizenship. This is the statutory duty under Section 9(2) of the Act.

11. The application under Sections 5 and 9 of the Citizenship Act serve to meet two different situations though the object may be to obtain a declaration or confirmation of the status as an Indian citizen. Sec-tion 5 enables a 'foreigner' to register himself as an Indian citizen. Section 9, on the other hand, resolves the dispute whether an Indian citizen has lost his citizenship by naturalisation, registration or voluntary acquisition of the citizenship of a foreign family. A registration under Section 5 therefore confers Indian citizenship. A decision under Section 9 settles the dispute and decides whether one is an Indian citizen or not. Merely because an application has been filed under Section 5, there cannot be a final conclusion that he is a foreign citizen when an application to decide, that very question is pending under Section 9 of the Act. A decision under Section 5 of the Act may foreclose the issue and an application under Section 9 may not then be available. A simultaneous application under Sections 5 and 9 may, of course, considerably affect the bona fides of the applicant, but bona fides cannot be the basis for the determination of the very vital rights of citizenship. Even the question of bona fides cannot be decided in the abstract solely on the fact of, pendency of application under both the provisions; but it will have to be considered in the light of several circumstances as in this case, where the petitioner pleads illiteracy, ignorance and wrong advice given by his friends and when he was aware of only his rights, not his remedy and when he was more anxious to remain in India rather than leave the country. Bona fides of the applicant may be one of the circumstances to be taken into consideration; but it cannot be the sole consideration.

12. He has filed an application under Section 9(2) which has, therefore, to be decided on the merits, The 4th respondent the Central Government cannot abdicate their statutory duties by saying, that the application cannot be entertained, in view of the pendency of the application under Section 5(2) of the Act.

13. The 4th respondent relies on a decision of the Supreme Court reported in Abdus Sarriad v. State of W. B. (AIR 1973 SC 505). That was a case where a person who was born in Pakistan and who came to India was prosecuted under Section 14 of the Foreigners Act. There was no application under Section 9 of the Act. The Supreme Court itself said that the representation that was filed was not one under Section 9(2) of the Citizenship Act. The relevant portions arc as follows (para 6) :--

'Counsel for the appellant contended that there was no consideration by and answer from the Government of India on the representation dated 16 March, 1962, made by the appellant. It was said that the representation was one under Section 9(2) of the Indian Citizenship Act, 1955 for the determination of his citizenship. Therefore the contention was that until there was a determination by the Government the appellant could not be asked to leave India. That is not a representation under Section 9 of the Indian Citizenship Act.

This was a request to the Government by the appellant not to he 'pushed out of India'. The appellant then made an application under Section 5(1)(a) of the Citizenship Act on 4 May, 1962, to be registered as a citizen of India. It was never the plea of the appellant that he was an Indian citizen. An application for registration as an Indian citizen totally repels any plea of Indian citizenship of the appellant'.

14. Thus it should he clear that in thecase before the Supreme Court there wasno application under Section 9. There was noplea that he was an Indian citizen, thatthere was only an application, under Section 5(1)(a) of the Citizenship Act andthat was already rejected. His defencewhen he was prosecuted under theForeigners Act could hot therefore be accepted, as he was not registered as anIndian citizen. I do not think that thedecision cited supports the reasoning ofthe 4th respondent that in all cases an application under Section 5(1) will oust the jurisdiction under Section 9(2). In this case thepetitioner in his anxiety to remain in India,seems to have filed an application underSection 5(1) and Section 9(2) of the. Act. Noorders have been passed oh Section 5(1) application and still Section 9(2) application hasbeen rejected. The position therefore isthat his status has not been determinedfinally and he is sought to be deported.The reasoning in Ext. P2 cannot thereforebe sustained.

15. The petitioner has also a contentionthat the principles of natural justice havebeen violated when Ext. P2 was issued.The Supreme Court in Md. Ayub Khan v.Commr. of Police (AIR 1965 SC 1623)held that the power that is exercised underSection 9(2) is quasi-judicial. In this case,in the petitioner's representation Ext. P1,be has claimed a personal bearing. It ishis case that the passport was issued to himfraudulently. The circumstances underwhich a passport was issued to him havebeen detailed by him in his application.This requires detailed consideration. Pro-bably evidence may have to be adduced.Personal hearing may be necessary. Theseare matters which the Central Governmentmay have to consider before issuing finalorders under Section 9(2). In this case therewas no hearing. There is no discussion onthe merits. The procedure adopted isopposed to the principle of natural justice.On this ground also Ext. P2 is liable to bequashed.

16. In the result Ext. P2 cannot there-fore stand as also the consequential order of deportation, Ext. P3, Exhibits P2 and P3 are therefore quashed. The 4th respondent will consider the application under Section 9(2), Ext. P1, according to law and in the light of the observations contained in this judgment. The petitioner will not be deported to Pakistan till the 4th respondent issues final orders under Section 9(2) of the Indian Citizenship Act.

17. Before leaving, I may also observe that the Central Government may consider the desirability and even the necessity of conducting the hearing of Section 9(2) application in Kerala also considering the very large number of applications from Kerala and the poor resources of the applicants to effectively represent their cause in far off Delhi. Let not distance and destitution defeat justice and deny citizenship in relevant situations.

The original petition is allowed to the above extent. No costs.


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