1. This is a petition seeking a writ of Habeas Corpus for the release of the petitioner from the Special Jail, Jammu.
2. The petitioner was arrested' on 27-6-1972 pursuant to an order of detention dated 26-6-1972 passed by the District Magistrate, Poonch, under Section 3 of the Maintenance of Internal Security Act, 1971 (Central Act No. XXVI of 1971). The grounds of detention were furnished to the petitioner on 8-7-1972. The State Government approved the detention of the petitioner by an order dated 27-7-1972. A reference under Section 10 of the aforesaid Act was made on 30-4-1973 by the Government to the Advisory Board constituted under the Act. The Advisory Board recommended that the petitioner be detained for a period of two years. The detention of the petitioner for the aforesaid period was ultimately confirmed by the Government vide order dated 5-6-1973 consistently with the recommendation of the Advisory Board. The aforementioned dates are not disputed and in fact have been mentioned in the reply affidavit filed by the respondent-the detaining authority.
3. Mr. Sethi appearing on behalf of the petitioner, has raised a number of points in support of the challenge to the validity of the detention. As one of the points raised by Mr. Sethi alone is sufficient for the success of the petition we consider it unnecessary to examine the rest of the contentions.
4. According to Mr. Sethi the detention order having been passed on 26-6-1972 the reference to the Advisory Board should have been made within a period of three months from the date of detention order, whereas in the present case the reference to the Advisory Board was made on 30-4-1973. It is contended that the mandatory provisions of Section 10 of the Maintenance of Internal Security Act thus stand violated rendering the detention of the petitioner illegal.
5. Mr. Anil Dev Singh appearing on behalf of the State submitted that since the petitioner had migrated to Pakistan sometime in the year 1965 therefore the very fact of his migration should bring about an extinction of his Indian Citizenship rights and he must be deemed to be a foreigner for purpose of Sections 3 and 17 of the Maintenance of Internal Security Act. Mr. Singh borrowed support from the provisions contained in Article 7 of the Constitution which reads thus:
7. Notwithstanding anything in Articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:
Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of Clause (b) of Article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.
6. It is contended that as the petitioner had not returned to the territory of India under a permit of resettlement or permanent return issued by or under the authority of any law, he must not be deemed to be a citizen of India. According to Mr. Singh the petitioner is a foreigner and therefore, in his case the reference to the Advisory Board need not have been made within a period of three months. His detention, it is contended, could be continued for a period not exceeding two years even without making a reference to the Advisory Board. The contention in our opinion is not tenable and must fail.
7. From the plain language of Article 7 of the Constitution of India it would appear that, a migration to Pakistan after 26th January, 1950 the date of the commencement of the Constitution is not covered by the aid Article. The word 'migrated' occurring in Article 7 suggests that the Article covered cases of only those persons who had migrated before the date of the commencement of the Constitution and not of those who may migrate after that date. The question fell for consideration of the Supreme Court in State of Madhya Pradesh v. Peer Mohd. reported as : AIR1963SC645 , Gajendragadkar J. who spoke for the court, observed in para No. 10 of the Report as under:
The argument, however, cannot be accepted because it is plainly inconsistent with the material words used in the Article. It will be noticed that a person who shall not be deemed to be a citizen of India is one 'who has, after the first .day of March, 1947, migrated from the territory of India to the territory of Pakistan.' It is true that migration after January 26, 1950, would be migration after the first day of March, 1947, but it is clear that a person who has migrated after January 26, 1950, cannot fall within the relevant clause because the requirement of the clause is that he must have migrated at the date when the Constitution came into force. 'Has migrated' in the context cannot possibly include cases of persons who would migrate after the commencement of the Constitution. It is thus clear that it is only persons who had migrated prior to the commencement of the Constitution that fall within the scope of Article 7. The use of the present perfect tense is decisive against the appellant's contention and so in the absence of the words on which Mr. Sen relies has no significance. Besides, as the Article is worded, the use of the said words would have been inappropriate and having regard to the use of the present perfect tense, such words were wholly unnecessary. The proviso to Article 7 which deals with cases of persons who having migrated to Pakistan have returned to India under a permit for resettlement also supports the same conclusion. The migration there referred to appears, to be migration prior to the commencement of the Constitution.
8. From what has been quoted above it is manifest that Article 7 of the Constitution of India does not apply to the case of the petitioner and so under that Article he does not cease to be an Indian citizen.
9. It is not disputed that the petitioner was born in Poonch a place in India and so were his parents. Under Article 5 of the Constitution of India therefore he has to be treated to be a citizen of India, Article 5 of the Constar tuition of India reads thus:
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; or
(b) either of who se 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 citizen of India.
The extinction of Indian citizenship rights, if any, or the acquisition of citizenship of another country if any, shall therefore be governed by the provisions of the Citizenship Act of 1955. Sections 9 and 10(1) of the aforesaid Act read thus:
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 subsection 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. Deprivation of citizenship.
(1) A citizen of India who is such by naturalisation or by virtue only of Clause (c) of Article 5 of the Constitution or by registration otherwise than under Clause (b), (ii) of Article 6 of the Constitution or Clause (a) of Sub-section (1) of Section 5 of this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section.
9A. A bare perusal of these sections would show that the question, as to whether, when or how any person has acquired the citizenship, of another country has to be decided by such authority and in such manner as may be prescribed, under Section 9, Sub-section (2). Similarly there can be a cessation of the Indian citizenship only when an order has been passed by the Central Government depriving a per--on of that citizenship. It is admitted before us that no order either under Section 9(2) or Sub-section (1) of Section 10 has been passed. How then are we to hold that the petitioner had ceased to be an Indian citizen or that he had become a foreigner, is difficult to appreciate. In fact Mr. Anil Dev Singh towards the close of the arguments indirectly conceded that the petitioner could not be held to be a foreigner.
10. As we have held that the petitioner is not a foreigner, reference to the Advisory Board constituted under the Act within a period of three months from the date of detention was an indispensable requirement. The same not having been satisfied the detention of the petitioner for the period subsequent to the date of expiry of the period of three months is void.
11. A writ of habeas corpus therefore shall issue to the respondents directing them to set the petitioner at liberty forthwith.