IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 07..03..2007 C O R A M The Honourable Mr. A.P. Shah, Chief Justice and The Honourable Mr. Justice K. Chandru Writ Appeal No.1599 of 2006 S. Nalini Srikaran .. Appellant Versus Union of India, rep. by its Ministry of External Affairs, New Delhi. .. Respondent - - - - - Prayer : Appeal filed under Clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 31.10.2006 passed in W.P. No.40310 of 2006 presented under article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondent to permit the petitioner's minor dauthter Megara to come to India and stay in India since she is an Indian Citizen untill the Status of her citiship is decided by the Government of India u/s 9(2) of the Indian Citizenship Act 1955. - - - - - For Appellant : Mr. N.G.R. Prasad for Mr. R. Rajaram For Respondent : Mr. P. Wilson, Asst. Solicitor General of India. - - - - - J U D G M E N T ( Delivered by the Hon'ble Chief Justice ) The appellant, Nalini and her husband, Srikaran alias Murugan were arrested in connection with the murder of the former Prime Minister Rajiv Gandhi. While in prison, the appellant gave birth to a female child, Megara on 21.1.1992 in Chengalpattu Medical College Hospital at https://hcservices.ecourts.gov.in/hcservices/ Chengalpattu. Her birth was also registered in Chengalpattu Municipality on 24.1.1992 under the Registration of Births and Deaths Act, 1969. She lived with her mother in the prison. Then in 1998, the Special Court awarded death penalty to all 26 accused, including the appellant and her husband. In view of this precarious situation, the appellant's mother-in- law, a Sri Lanka citizen took minor Megara to Sri Lanka with her. Megara was given an emergency passport by the Sri Lanka Government to travel to Sri Lanka and she continues to stay in Sri Lanka since 1998. In appeal, the appellant's death penalty was converted into life imprisonment and she has been kept in Special Prison for Women at Vellore. It appears that the appellant's daughter applied for permission to travel to India to the Indian High Commission in Sri Lanka on 15.4.2004. Since the Indian High Commissioner did not pass any order on the said application, the appellant filed Writ Petition No.21263 of 2005 before this Court and by order dated 22.9.2005, the respondent – Union of India was directed to consider and pass order on the application of the appellant's daughter, seeking permission to travel to India, within six weeks. The respondent gave permission for the appellant's daughter to travel to India to meet her parents. Thereafter, she went back to Sri Lanka. 2. The present writ petition has been filed by the appellant for a mandamus directing the respondent to grant visa to her daughter Megara to travel to India. The appellant says that the ethnic conflict in Sri Lanka is fast deteriorating and the armed conflict between Sri Lankan Army and ethnic minority Tamil group has worsened. As a result of the continuous fight between the two armed combatants, the schools and colleges in the Tamil areas have been closed. The displaced families are coming in large numbers to India as refugees. The Indian Government is not only accommodating the refugees, but also rehabilitating them in various camps on humanitarian consideration. According to her because of the armed conflict, her daughter's education is also affected and she is unable to go to school for the past one year and her life itself is in danger. Therefore, her daughter has decided to come back to India. The appellant's daughter and mother-in-law applied for visa on 20.5.2006. The Indian High Commission granted visa to the appellant's mother-in-law on 22.5.2006 itself, but no order was passed on the travel permission documents of the appellant's daughter. The appellant says that her daughter is an Indian citizen by virtue of Section 3(b) of the Citizenship Act, 1955 (Act 57 of 1955) and she was forced to go to Sri Lanka when she was only six years old, with the appellant's mother-in-law, because of the factors beyond her control since she had no other option. The appellant is therefore seeking direction to the respondent to grant a visa to her daughter to visit India. 3. While the petition was pending the request of the appellant's https://hcservices.ecourts.gov.in/hcservices/ daughter for issue of visa was came to be rejected by the respondent on the following grounds : (a) In response to W.P. No.21263 of 2005 filed by S. Nalini Srikaran, she was granted a visa (single-entry, 3-months, tourist visa) by our Mission in Colombo on 22nd December, 2005. Not only did the petitioner travel to Chennai, but also overstayed beyond the period specified in the visa by one month which was then regularized by the Chief Immigration Officer in Chennai; and (b) With regard to W.P. No.40310 of 2006, the Government have examined the matter and have not recommended the grant of a student visa for a period of one year to the petitioner." Consequently, the learned single Judge closed the writ petition. It was, however, clarified that if the appellant is entitled to any other remedy in law, the order in the writ petition will not stand in her way. Being aggrieved, the appellant has filed the present appeal. 4. On an application made by the appellant, we permitted her to amend the prayer in the writ petition and the amended prayer reads as follows : "For the reasons stated in the accompanying affidavit, it is therefore prayed that this Hon'ble Court may be pleased to issue a writ of mandamus directing the respondent to permit the petitioner's minor daughter Megara to come to India and stay in India, since she is an Indian citizen, until the status of her citizenship is decided by the Government of India under Section 9 (2) of the Indian Citizenship Act, 1955 and thus render justice." 5. In response to the notice issued by this Court, the respondent - Union of India filed a counter to the amended petition. It has been pointed out in the counter that the appellant herself has pleaded in the writ petition that her mother-in-law, a Sri Lanka citizen, came from Sri Lanka, got the name of her daughter endorsed in her Sri Lanka passport and took her to Sri Lanka and the child continues to stay in Sri Lanka. When the appellant claims that her daughter is an Indian citizen, there was no necessity for her to seek for a Sri Lanka passport. Once a person voluntarily acquires citizenship of another country, Section 9(1) of the Citizenship Act, 1955 comes into play and she would cease to be a citizen of India. It is contended that the respondent has information that the appellant's daughter has now left for Norway, after obtaining visa from that country, for her studies. It is also contended that under Section 9 (2) of the Citizenship Act read with Rule 30 of the Citizenship Rules, 1956, the appellant has to make an application before the competent authority, namely., the Ministry of Home Affairs of the Government of India, which alone has the power to consider and adjudicate upon the issue relating to citizenship and the appellant cannot seek any relief from this Court under Article 226 of the Constitution and no writ of mandamus could https://hcservices.ecourts.gov.in/hcservices/ be issued even without an application being made to the appropriate authority. 6. Mr. N.G.R. Prasad, learned counsel for the appellant submitted that the appellant's daughter, Megara has acquired Indian citizenship under Section 3(b) of the Citizenship Act, 1955 since the appellant herself is a citizen of India and she would not cease to be a citizen of India, unless there is a determination of the issue of cessation of her citizenship by the Central Government under Section 9(2) of the Citizenship Act, 1955. Learned counsel submitted that the appellant's daughter was hardly six years old when she had gone to Sri Lanka due to compelling circumstances and she could not be said to have voluntarily acquired foreign citizenship. According to him the appellant's daughter, as a citizen of India, is entitled to enter India and live with her parents and the issue of cessation of her citizenship could be decided only after she attains majority. 7. On the other hand, Mr. P. Wilson, learned Assistant Solicitor General submitted that since the appellant's daughter had voluntarily obtained a passport in Sri Lanka claiming herself to be a Sri Lankan citizen, Schedule III, Rule 3 of the Citizenship Rules, 1956 presumes that she has voluntarily acquired Sri Lankan citizenship and in the absence of any application for determination of her citizenship under Section 9 of the Citizenship Act, 1955 read with Rule 30 of the Citizenship Rules, 1956, there is no cause of action for the appellant to approach this Court seeking any relief. According to the learned Assistant Solicitor General, the appellant is estopped from claiming that her daughter is an Indian citizen due to her conduct and voluntary acquisition of citizenship of Sri Lanka. 8. Before adverting to the rival contentions, reference may be made to the relevant provisions in the Statute and the Rules. Section 9 of the Citizenship Act, 1955 provides for termination of citizenship and 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 the 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, https://hcservices.ecourts.gov.in/hcservices/ 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." 9. The rule-making power under the said Act is to be found in Section 18 thereof and it is provided that the Central Government may, by notification, make rules to carry out the purposes of this Act; and in particular, under Section 18(2)(h), may make provision in such rules for the authority to determine the question of acquisition of citizenship of another country, the procedure to be followed by such authority and rules of evidence relating to such cases. The necessary rules in exercise of the power conferred by Section 18 of the said Act were framed in 1956, being designated as the Citizenship Rules, 1956, and we are concerned in particular with Rule 30 and Schedule III to the said Rules. Rule 30 provides as follows : "Rule 30 : Authority to determine acquisition of citizenship of another country - (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. (2) The Central Government shall in determining any such question have due regard to the rules of evidence specified in Schedule III." 10. Paras 1 and 3 of Schedule III may also be set out and they make the following provision : "1. 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. 2. .... ..... ..... 3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of the country before that date." 11. The question whether the minor Megara has ceased to be a citizen of India on acquisition of Sri Lanka passport is required to be determined in the manner provided by the combined operation of all these provisions https://hcservices.ecourts.gov.in/hcservices/ earlier set out above, viz. Section 9 of the Citizenship Act, 1955 and Rule 30 read with Schedule III of the Citizenship Rules, 1956. The question as to proper interpretation of these provisions has arisen before the Supreme Court on a number of occasions, and the question not being res integra, it will be useful to make immediate reference to the judgments of the Supreme Court which were cited at the bar before us. 12. The vires of Para 3 of Schedule III as well as the constitutionality of Section 9(2) of the Act were in question in Izhar Ahmed vs. Union of India, A.I.R. 1962 S.C. 1052, and by a majority decision, the challenge was negatived by the Supreme Court. The majority held that this was a rule of evidence and fell within the scope prescribed by Section 9(2) of the Citizenship Act, and the challenge to its validity on the ground that it was a rule of substantive law had, therefore, to be repelled. Similarly, the challenge to Section 9(2) of the Act on the ground that it enabled the rule-making authority to make a rule to deprive the citizenship rights of citizens was also not sustained. Inasmuch as the validity and the vires of these provisions is not in issue, it is in our opinion unnecessary to refer to this decision in greater detail. 13. The provisions of Section 9(2) of the Citizenship Act, 1955 read with Schedule III to Rule 30 of the Citizenship Rules, 1956 fell for consideration of the Supreme Court in the case of Government of A.P. vs. Mohd. Khan, A.I.R. 1962 S.C. 1778. In that case, the Supreme Court was dealing with writ applications of 22 persons who had come to India from Pakistan on the passport of the Government of Pakistan and were asked to remove themselves from out of India on account thereof. Their being citizens of India at the commencement of the Constitution was not in dispute. The only question was with regard to the effect of their entering India on Pakistan passports. Gajendragadkar, J., as he then was, speaking for the Court, categorically over-ruled the view that possession of such passport operated as automatic cession of the Indian citizenship and observed as follows : "That raises the question about the proper order to be passed in the present appeals. It has been urged before us by Mr.Tatachari for the appellant that the effect of our decision in the case of Izhar Ahmad Khan, (AIR 1962 SC 1052), is that as soon as it is shown that a person has acquired a passport from a foreign Government, his citizenship of India automatically comes to an end, and he contends that in such a case, it is not necessary that the Central Government should hold any enquiry and make a finding against the person before the appellant can issue an order of deportation against him. In our opinion, this contention is clearly misconceived. In dealing with the question about the validity of the impugned Section and the Rule, this https://hcservices.ecourts.gov.in/hcservices/ Court has, no doubt, stated that 'the proof of the fact that a passport from a foreign country has been obtained on a certain date conclusively determines the other fact that before that date he has voluntarily acquired the citizenship of that country'. But in appreciating the effect of this observation, it must be borne in mind that in all the cases with which this Court was then dealing, the question about the citizenship of the petitioners had been expressly referred to the Central Government and the Central Government had made its finding on that question. It was after the Central Government had recorded a finding against the petitioners that they had acquired the citizenship of Pakistan that the said writ petitions came before this Court for final disposal and it is in the light of these facts that this Court proceeded to consider the contention about the validity of the impugned section and the impugned rule. It is plain, therefore, that the observations on which Mr.Tatachari relied were not intended to mean that as soon as it is alleged that a passport has been obtained by a person from a foreign Government, the State Government can immediately proceed to deport him without the necessary enquiry by the Central Government. Indeed, it is clear that in the course of the judgment, this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner. It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned Rule, the conclusion may follow that he has acquired the citizenship of the foreign country; but that conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question. Therefore, there is no doubt that in all cases where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State and have lost in consequence the citizenship of this country, it is essential that that question should be first considered by the Central Government. In dealing with the question, the Central Government would undoubtedly be entitled to give effect to the impugned R.3 in Sch.III and deal with the matter in accordance with the other relevant Rules framed under the Act. The decision of the Central Government about the status of the person is the basis on which any further action can be taken against him.Therefore, we see no substance in the argument that the orders of deportation passed by the https://hcservices.ecourts.gov.in/hcservices/ appellant against the respondents should be sustained even without an enquiry by the Central Government about their status. That is why we think, in substance the direction of the High Court is right, though the High Court was in error in holding that the Central Government should hold the enquiry without reference to Rule 3." (emphasis supplied) 14. In Md. Ayub Khan vs. Commr. of Police, reported in A.I.R. 1965 S.C. 1623, the Supreme Court did not entertain the plea which had been sought to be advanced before it namely., that Izhar Ahmed's case required reconsideration as certain aspects of the question had not been brought to the notice of the Court. The Court, however, construed and interpreted the provisions which are required to be applied by us also namely., Section 9 of the Citizenship Act and Rule 30 and Schedule III of the Citizenship Rules. Md.Ayub Khan's case therefore needs to be considered in some depth. The appellant before the Supreme Court claimed that he had acquired the status of an Indian citizen on the commencement of the Constitution and was served with a notice informing him that as he had obtained Pakistan passport, he should leave India within one month from the date of the service of the notice; and in default of compliance he was threatened with prosecution and deportation under the Foreigners Act, 1946 as amended by the Foreigners Law (Amendment) Act, 1957. On receipt of the notice Md.Ayub Khan applied to the Collector of Madras for registration as a citizen of India. Later on he applied to the Central Government under Section 9(2) of the Citizenship Act for determination of the question whether he continued to remain a citizen of India and prayed that he may be given an opportunity to produce all necessary evidence in support of his claim as regards Indian citizenship. Without affording him that opportunity, however, the Government of India rejected the application of the appellant under Section 9 of the Citizenship Act. He thereupon preferred a petition before the Madras High Court urging, inter alia, that Rule 30 contemplated a quasi-judicial enquiry in which an opportunity must be given to the party sought to be affected to make a representation and to adduce evidence to show that the acquisition of a Pakistan passport was not voluntary. The learned single Judge of the Madras High Court rejected this contention, inter alia, observing that as far as the question of opportunity was concerned the petitioner Md.Ayub Khan, "had not indicated on what points he intended to lead evidence and what kind of evidence he intended to adduce". His appeal to a Division Bench of the Madras High Court was also dismissed holding that Section 9 "laid down an objective test and when the individual had brought himself within it, the law determines the legal consequences of the situation, independently of his intent or understanding". It was accordingly held that there was no scope for enquiry of the nature claimed by the appellant. Allowing the appeal the Supreme Court held that the determination of the question postulates https://hcservices.ecourts.gov.in/hcservices/ an approach as in a quasi judicial enquiry and this requires that 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. It was further held that the scope and extent of the enquiry to be made by the authority on a plea raised by the citizen concerned should depend upon the circumstances of each case. In paragraphs 10 and 11 of the said judgment the Supreme Court indicated the scope of the enquiry as follows:- "Para – 10. Paragraph 1 of Sch.III 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 date 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 visualized 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 Sch.III and that a conclusive presumption must arise that he has acquired voluntarily citizenship of that country. Para – 11. We are