Case: Kulathil Mammu Vs. The State Of Kerala

Wanchoo, J. 1. The main question that arises in this appeal on a certificate granted by the High Court of Kerala is the interpretation of the word "migrated" in Art. 7 of the Constitution. Aboobacker on whose behalf the writ petition from which this appeal has arisen was filed in the High Court was born on March 5, 1936 in the district of Kozhikode of presents who were both Indian citizens. Aboobacker left India sometime in 1948 and went to Karachi in Pakistan when he was a boy of 12 years of age. He remained in Pakistan till 1954. On March 10, 1954, he obtained a Pakistani passport and came to district Kozhikode in India on visa granted to him in September 1954. On November 1, 1954, he again left for Pakistan. In 1956 he came to India again with the same passport but on a fresh visa obtained in April 1956. He remained in India till June 1956 when he returned again to Pakistan. In the passport Abookackers father who was dead by then was described as an Indian and Aboobackers own nationality was given as a Pakistani and the approximate date of migration was mentioned as 1948. There was no record in Kozhikode after June 1956 as to the whereabouts of Aboobacker; but in October 1964 he was found living in the district of Kozhikode and did not have any valid travel documents. Consequently he was arrested and as case under the Indian Passport Rules 1950 was registered against him. He was released on bail thereafter and the matter was reported to the State Government. On this report the State Government passed an order on November 5, 1964 under the Foreigners Act (NO. 31 of 1946) requiring him not to remain in India. As Aboobacker was unwilling to comply with the order he was arrested and detained. 2. On November 16, 1964, a writ petition was filed on behalf of Aboobacker by the appellant in the High Court, and the contention raised therein was that Aboobacker was an Indian citizen and therefore the order passed against him under the Foreigners Act was illegal. It was prayed that the order should be quashed and Aboobacker released. 3. The petition was opposed on behalf of the State and on the facts which we have set out above and which are not in dispute now, the contention of the State was that Aboobacker ceased to be a citizen of India when the Constitution came into force by virtue of Art. 7 thereof and the consequence the order directing him to leave India under the Foreigners Act was legal and proper. 4. The main contention raised before the High Court on behalf of Aboobacker was that Art. 7 had no application in this case because migration contemplated in that Article must be with the intention to leave India permanently and settle finally in Pakistan and that as Aboobacker was a minor at the time he left India he could not be imputed with any such intention, and in any case he had no such intention because he had simply gone to Karachi in search of livelihood as he was poor. On the other hand, it was contended on behalf of the State that no such intention was necessary and that migration under Art. 7 of the Constitution simply meant the physical act of going form India to Pakistan and if any person did so whether he was minor or a major he would be covered by Art. 7 of the Constitution. Reliance was placed in the High Court on behalf of Aboobacker on a decision of this Court in Smt. Shanno Devi v. Mangal Sain, AIR 1961 SC 58 . The High Court seems to have held that even if any such intention was necessary there was sufficient indication to prove that Aboobacker had such intention. The High Court did not accept the extreme argument on behalf of Aboobacker that a minor could never have any such intention. It therefore held that Aboobacker had migrated to Pakistan within the meaning of Art. 7 and was thus a foreigner within the meaning of that word in the Foreigners Act and the State Government was justified in ordering him not to remain in India, and as he was unwilling to comply with that order his arrest for the purpose of deporting him to Pakistan was justified. In consequence, the petition was dismissed. Thereafter on an application for a certificate, the High Court granted the certificate to appeal to this Court on the ground that a question as to the interpretation of Art. 7 of the Constitution was involved in the case. 5. The main question that falls for consideration therefore is the meaning of the word "migrated" used in Art. 7 of the Constitution. Article 7 runs thus:"Notwithstanding anything in Arts. 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 ................. " The word "migrated" is capable both of a narrower meaning as well as of a wider meaning. In its narrower connotation it means going from one place to another with the intention of residing permanently in the latter place; in its wider connotation it simply means going from one place to another whether or not with any intention of permanent residence in the latter place. In Websters dictionary (Second Edition, 1937), the word "migrate" means "to go from one place to another; especially to move from one country, region or place of abode or sojourn to another, with a view to residence; to move". Corpus Juris Secundum published in 1948 gives the same meaning except that it adds one more meaning namely, "to change ones place of residence". It will be seen that if the narrower meaning is given an intention to settle in the place to which a person moves on migration is necessary. On the other hand if the wider meaning is given all that is necessary is that there should be movement from one place to another whether or not there is any intention of settlement in the place to which one moves. The question that is posed for our consideration is which of the two meanings was intended by the Constitution-makers when they used the word "migrated" in Art. 7. The matter has been referred to a larger Bench because when dealing with the same word "migrated" in Art. 6, this Court took the view in Smt. Shanno Devis case, AIR 1961 SC 58 , that the word "migrated" had been used in that Article in the narrower sense. The contention on behalf of Aboobacker is that the same narrower meaning should be given to this word in Art. 7. 6. In order to decide the question whether the narrower or the wider meaning of the word "migrated" was intended by the Constitution makers, we have to look at the scheme of Part II of the Constitution which deals with citizenship. The first Article in that Part is Art. 5 and it lays down the normal rule of citizenship. Under that Article every person who has his domicile in the territory of India at the commencement of the Constitution and satisfies one of the three conditions laid down therein is a citizen of India. But the Constitution also deals with the abnormal situation that prevailed in the country about the time of its partition between India and Pakistan and Arts. 6 and 7 deal with that abnormal situation. It is well known that there was large movement of population form what is now the territory of Pakistan to the territory of India and vice versa from about March, 1947 and this continued late into 1948. Article 6 deals with this movement of population form the territory now included in Pakistan to the territory of India while Article 7 deals with the movement from the territory of India to what is now the territory of Pakistan. Both these Articles begin with a non obstante clause. Article 6 begins with the words "notwithstanding anything in Art. 5" and Art. 7 begins with the words "notwithstanding anything in Arts. 5 and 6". The presence of the non obstante clause in both these Articles clearly indicates that they were meant to deal with the abnormal situation to which we have already referred and prescribe conditions as to who shall be deemed to be citizens of India on the date of the commencement of the Constitution (Art. 6) and who shall not be so deemed (Art. 7). It is also remarkable that both these Articles are silent on the question of domicile and the presence of the non obstante clause in the beginning of these Articles clearly shows in our opinion that the concept of domicile was not to be brought into them when deciding who shall be deemed citizens of India (Art. 6) or who shall not be deemed to be citizens of India (Art. 7).These two Articles make special provision for dealing with the abnormal situation created by large movement of population from one side to the other and vice versa and lay down special criteria of their own, in one case for deciding who shall be deemed to be citizens of India (Art. 6 ) and in the other case who shall not be deemed to be such citizens (Art. 7). It seems to us therefore that the Constitution makers did not intend that the concept of domicile should be brought into Articles 6 and 7 notwithstanding that such concept was present in Art. 5, which provides for the normal case of citizenship of India. In this situation it seems to us clear that when Art. 6 as well as Art. 7 use the word "migrated", the intention must have been to give the wider meaning to that word, namely, going from one territory to the other. 7. We may in this connection refer to the following observations of Mahajan, C. J. in Central bank of India v. Ram Narain, (S) AIR 1955 SC 36 , to show that the idea of domicile or permanent change of residence could not be a part of the meaning of the word "migrated" as used in Arts. 6 and 7:"It has to be remembered that in October or November, 1947 mens minds were in a state of flux. The partition of India and the events that followed in its wake in both Pakistan and India were unprecedented and it is difficult to cite any historical precedent for the situation that arose. Minds of people affected by this partition and who were living in those parts, were completely unhinged and unbalanced and there was hardly any occasion to form intentions requisite for acquiring domicile in one place or another. People vacillated and altered their programmes from day to day as events happened. They went backward and forward; families were sent from one place to another for the sake of safety. "Most of those displaced from West Pakistan had no permanent homes in India where they could go and take up abode. They overnight became refugees, living in camps in Pakistan or in India. No one, as a matter of fact, at the moment thought that when he was leaving Pakistan for India or vice versa that he was doing so for ever or that he was forever abandoning the place of his ancestors." If this was the situation (and we have no doubt that it was so even from March 1947) at the time when the abnormal movement of population from one side to the other took place, there can be no doubt that when the Constitution makers used the word "migrated" in Arts. 6 and 7 they could never have intended to give what we have called the narrower meaning to the word "migrated", for there could be no deliberate intention to change ones residence permanently when this large movement of population from the one side to the other and vice versa took place. That is also the reason why both these Articles begin with a non obstante clause and thus in our opinion exclude the concept of domicile for the purposes of these Articles. If that was so and if the concept of domicile is excluded from these two Articles and we have no doubt that it is so excluded by the use of the non obstante clause in both these Articles, the work "migrated" used therein must be given the wider meaning. If we give the narrower meaning to it we shall be introducing the concept of domicile in these two Articles which was obviously not intended by the Constitution makers and in any case was definitely negatived by the use of the non obstante clause at the beginning of both these Articles. 8. It is said that curious consequences would follow if the intention of residing permanently in one territory or another when the migration took place is not inherent in these two Articles. These curious consequences are said to be illustrated by the case of two persons, one of whom was born in what is now India and has all along lived there and another person who though born in what is now India went to live in areas now in Pakistan and then moved back to areas in what is now India. The first named person would have to satisfy the requirement of domicile at the commencement of the Constitution under Art. 5 before he can be a citizen of India while the other would not have to satisfy this condition if he falls within Art. 6. That is undoubtedly so. But we do not see anything strange in it. In the hypothetical example the first person would have no difficulty in establishing his domicile in India for the very assumption that he was born in India and lived in India all along would prove his domicile. In the case of the other man the necessity of domicile is certainly obviated on our interpretation of Art. 6 but that is because Art. 6 was dealing with an abnormal situation and therefore did away with the concept of domicile by the use of the non obstante clause therein. That is one reason why we think that the Constitution makers intended to give what we have called the wider meaning to the word "migrated" in Arts. 6 and 7. 9. Then we may refer to Art. 8. That Article also begins with the non obstante clause "notwithstanding anything in Art. 5". That Article confers Indian citizenship on a person who on the face of it had no domicile in India, if certain conditions mentioned therein are fulfilled. It is clear therefore that when Art. 8 as well as Arts. 6 and 7 use the non obstante clause, the intention clearly is to exclude the concept of domicile from these three Articles. Article 6 would deem a person to be citizen of India if the conditions thereof were satisfied while Article 7 would make a person not a citizen of India if conditions thereof were satisfied and finally Art. 8 would deem a person to be a citizen of India if the conditions thereof were satisfied - all of course at the commencement of the Constitution. We may add that Art. 7 begins with a non obstante clause which excludes both Arts. 5 and 6. Therefore, a person to whom Art. 7 applies cannot claim citizenship either under Art. 5 or under Art. 6. He can either fall under the main part of Art. 7 (in which case he will not be deemed to be a citizen of India) or take advantage of the proviso to Art. 7, if he can, to show that he has become a citizen of India thereunder. 10. There is another consideration which leads us to the same conclusion. Article 6 which provides for deeming a person to be a citizen of India lays down in Cl. (b) (i) that such person should have migrated to India before the 19th day of July 1948 and should be ordinarily resident in the territory of India since the date of his migration. Now this provision will apply to all cases of migration before the 19th day of July 1948 and even before the 15th day of August 1947 when India and Pakistan came into existence. Take a case of a person who migrated from what is now the territory of Pakistan to what is now the territory of India in 1946. At that time there could be no question of his changing his domicile for both territories were parts of the same country. Therefore when Art. 6 speaks of migration it can only mean going from one part of the country to another and there would be no question of any intention to change the domicile by such migration. Similarly Art. 7 speaks of migration from the territory of India to the territory of Pakistan after March 1, 1947. Take the case where a person migrated after March 1, 1947, but before August 15, 1947, when India and Pakistan came into existence. At that time there could be no question of any intention of changing the domicile for the two countries were still one and it was only in June 1947 that the final decision to divide India as it was before August 15, 1947 was taken. Even so, the exact boundary between the two countries which were to come into existence was not settled till the Radcliffe award just about August 15, 1947. In such a situation it would in our opinion be odd to introduce the concept of domicile either in Art. 6 or Art 7. All these considerations therefore lead us to the conclusion that when the Constitution makers used the work "migrated" in Art. 6 and Art. 7 they used it in the wider sense to which we have referred earlier and not in the narrower sense and this meaning is in our opinion in accord with the circumstances which prevailed at the time which resulted in large movement of population from one side to the other. 11. Even so we are of opinion that there is one qualification which must be attached to the word "migrated" as used in these two Articles, even though that word has the wider meaning of going from one place to another in the context of these Articles. That qualification is that the movement should have been voluntary and should not have been for a specific purpose and for a short and limited period. A case where a person went on what may be called a visit from the territory of India to the territory of Pakistan for a short and limited period with a specific purpose would not be covered by the word "migrated" as used in Art. 7. Similarly a case where a person was forced to go from the territory of India to the territory of Pakistan as, for example, where he might have been kidnapped or abducted would not be covered by the word "migrated" as used in Art. 7. Barring such cases the word "migrated" as used in Arts. 6 and 7 has to wider meaning, namely, movement from one territory to another territory whether or not with the intention of permanent residence in the latter place. We may in this connection refer to State of Bihar v. Kumar Amar Singh, (S) AIR 1955 SC 282 . In that case a lady went to Karachi in July 1948 leaving her husband in India. Her case was that she had gone there for medical treatment, but this was found to be false. It was held that she had migrated from India to Pakistan after March 1, 1947 and even if Art. 5 could be said to be applicable on the assumption that her domicile was that of her husband, the case was covered by Art. 7 which applied notwithstanding anything in Art. 5. Thus this case shows that if migration was voluntary and not with a specific purpose and for a short and limited period. Art. 7 would apply irrespective of the fact whether the migration was with the intention of residing permanently in the place to which the person migrated. 12. This brings us to Smt. Shanno Devis case, AIR 1961 SC 58 . We are of opinion that the narrower meaning given in that case to the word "migrated" as used in Art. 6 is with respect not correct, and that the word "migrated" used in Arts. 6 and 7 has the wider meaning namely, coming or going from one place to another, whether or not with the intention of residence in the latter place, subject to the qualification which we have already indicated. 13. We may incidentally refer to Art. 9 also thought it does not directly arise in so far as the question before us is concerned. That Article provides that no person shall be a citizen of India by virtue of Art. 5, or be deemed to be a citizen of India by virtue of Art. 6 or Art. 8 if he has voluntarily acquired the citizenship of any foreign State. That Article came up for consideration in State of Madhya Pradesh v. Peer Mohd. 1963 Supp (1) SCR 429: (AIR 1963 SC 645 ) and it was held that it did not apply to a case of acquisition of foreign citizenship after the Constitution came into force but only applied to such cases where foreign citizenship was acquired before the Constitution commenced. By oversight however in Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, AIR 1965 SC 810 , it has been stated that cases in which migration had taken place after January 26, 1950 fall to be considered under Art. 9 of the Constitution. Article 9 does not use the word "migration" and deals only with voluntary acquisition of citizenship of a foreign State before the Constitution came into force as already decided in Peer Mohds case, 1963 Supp (1) SCR 429: (AIR 1963 SC 645 ).We have thought it fit to refer to Art. 9 to correct the slip which has occurred in Abdul Sattars case, Air 1965 SC 810 .Cases of voluntary acquisition of foreign citizenship after the commencement of the Constitution have to be dealt with by the Government of India under the Citizenship Act, 1955. 14. Coming now to the facts of the present case it is obvious that Aboobacker went voluntarily to the territory of Pakistan sometime after March 1, 1947. It is equally obvious that he did not go for any specific purpose and for a short and limited period. His case therefore clearly falls within the meaning which we have given to the word "migrated" in Art. 7 and therefore by virtue of that Article he will be deemed not to be a citizen of India on the date of the commencement of the Constitution. Thereafter he has not acquired the citizenship of India and he should therefore be held to be a foreigner; and if that is so, it is not disputed that the order passed by the State Government is legal and the view taken by the High Court thereof is correct.

Decision reasoning: 0[ds]The first Article in that Part is Art. 5 and it lays down the normal rule of citizenship. Under that Article every person who has his domicile in the territory of India at the commencement of the Constitution and satisfies one of the three conditions laid down therein is a citizen of India. But the Constitution also deals with the abnormal situation that prevailed in the country about the time of its partition between India and Pakistan and Arts. 6 and 7 deal with that abnormal situation. It is well known that there was large movement of population form what is now the territory of Pakistan to the territory of India and vice versa from about March, 1947 and this continued late into 1948. Article 6 deals with this movement of population form the territory now included in Pakistan to the territory of India while Article 7 deals with the movement from the territory of India to what is now the territory of Pakistan. Both these Articles begin with a non obstante clause. Article 6 begins with the words "notwithstanding anything in Art. 5" and Art. 7 begins with the words "notwithstanding anything in Arts. 5 and 6". The presence of the non obstante clause in both these Articles clearly indicates that they were meant to deal with the abnormal situation to which we have already referred and prescribe conditions as to who shall be deemed to be citizens of India on the date of the commencement of the Constitution (Art. 6) and who shall not be so deemed (Art.t is also remarkable that both these Articles are silent on the question of domicile and the presence of the non obstante clause in the beginning of these Articles clearly shows in our opinion that the concept of domicile was not to be brought into them when deciding who shall be deemed citizens of India (Art. 6) or who shall not be deemed to be citizens of India (Art. 7).These two Articles make special provision for dealing with the abnormal situation created by large movement of population from one side to the other and vice versa and lay down special criteria of their own, in one case for deciding who shall be deemed to be citizens of India (Art. 6 ) and in the other case who shall not be deemed to be such citizens (Art. 7). It seems to us therefore that the Constitution makers did not intend that the concept of domicile should be brought into Articles 6 and 7 notwithstanding that such concept was present in Art. 5, which provides for the normal case of citizenship of India. In this situation it seems to us clear that when Art. 6 as well as Art. 7 use the word "migrated", the intention must have been to give the wider meaning to that word, namely, going from one territory to the other14. Coming now to the facts of the present case it is obvious that Aboobacker went voluntarily to the territory of Pakistan sometime after March 1, 1947. It is equally obvious that he did not go for any specific purpose and for a short and limited period. His case therefore clearly falls within the meaning which we have given to the word "migrated" in Art. 7 and therefore by virtue of that Article he will be deemed not to be a citizen of India on the date of the commencement of the Constitution. Thereafter he has not acquired the citizenship of India and he should therefore be held to be a foreigner; and if that is so, it is not disputed that the order passed by the State Government is legal and the view taken by the High Court thereof is correct18. My learned brother Wanchoo has held that the word migrate means no more than to go from one place to another and that the element of an intention to acquire a domicile is not necessary. He has, however, given instances of some cases in which going form one place to another would not be sufficient because either the going was involuntary or there was no intention to stay in the new place but to return. These instances, which I also adopt, show that migration is not bare physical movement from India to the territory now included in Pakistan but in such movement accompanied by an intention of some sort. What that intention should be is the matter in dispute20. Before I attempt to answer this question I shall say is few words about Arts. 6 and 7 because that will show how I view the word migrate used in them. Article 6**begins with the words "Notwithstanding anything in Art. 5" and lays down that a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of the Constitution if he or either of his parents or any of hiss was born in India as defined in the Government of India Act, 1935 (as originally enacted) and (a) in case such person had so migrated before the nineteenth day of July 1948 he had been ordinarily resident in the territory of India since the date of his migration, or (b) in case such person had so migrated on or after the nineteenth day of July 1948, he had been registered as citizen of India. The non obstante clause has the effect of segregating Art. 6 from Art. 526. Aboobackar left India in circumstances to which Art. 7 must clearly apply. That he was a minor makes no difference. The Constitution does not make a distinction between an adult and a minor. The intention of changing his abode from India to the territory now in Pakistan (whether he had it at the time or not) must be attributed to him because he returned to India several times and went back again under a Pakistan passport which clearly showed that he was intending to change his abode form India to Pakistan. His subsequent action shows the intention and an election to change the abode which the word migrate in Art. 7 of the Constitution obviously indicates. This was the view taken by Das Gupta, J. in Shanno Devis case, AIR 1961 SC 58  , and I think that the decision was correctAnother matter which must also be kept in mind is that Arts. 6 and 7 deal with the status at the commencement of the Constitution. Therefore, migration into the territory of India which conferred the status of citizenship under Art. 6 and migration form India which disabled a person from claiming citizenship under Art. 7 must be complete before the date of the commencement of the Constitution. If, therefore, intention to settle permanently in the country in which a person has moved is a necessary component of migration, such intention must have been formed before the commencement of the Constitution, and many persons who were compelled to move from their hearths and homes on account of a sense of insecurity resulting from riots and civil commotion still hoping that they would be going back to the abodes of their ancestors when the situation returned to normal, may not be deemed to have migrated at all. This, in my judgment, would introduce an element of uncertainty in the determination of citizenship and involve great hardship to the migrantsTwo cases in which this Court was called upon to consider the meaning of "migrate" may be referred to. In1 SCR 576  : (AIR 1961 SC 58  ), it was held by this Court that the expression "migrated to the territory of India" in Art. 6 of the Constitution means "come to the territory of India with the intention of residing there permanently". The dispute in that case arose in an election case, Mangal Sain who was born in 1927 of Indian parents in the territory which since August 15, 1947 had become part of Pakistan, moved in 1944 to Jullunder, and thereafter lived in the territory which is part of India, except for a short period when he went to Burma. It was contended in an election dispute that Mangal Sain was not a citizen of India and, therefore, could not stand for election. That contention was rejected by this Court on the finding that the respondent Mangal Sain who had earlier moved from a place in Pakistan to Jullunder and definitely made up his mind to make India his permanent home and, therefore, he satisfied the first requirement of Art. 6 after migration to the territory of India from the territory now included in Pakistan and it being established that Mangal Sain was born in India as defined in the Government of India Act, 1935, he satisfied the requirement of Cl. (a) of Art. 6. The Court in that case regarded movement from one territory to another, with intention to reside permanently in the new territory as a necessary ingredient.But in an earlier judgment of this Court in1 SCR 1259  : (S) AIR 1955 SC 282  ), the question (was ?) whether one Kumar Rani Sayeeda Khatoon was, because of migration from the territory of India after March 1, 1947, not to be deemed a citizen of India. Kumar Rani who was born in territory of India and had married Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya in 1920 left for Karachi in July 1948 and returned to India in December 1948 on a temporary permit. She again left for Pakistan in April 1949 on the expiry of the permit. Her claim that she went to Pakistan temporarily for medical treatment was not accepted. After her property in India was taken over by the Custodian of Evacuee Property, she obtained a permit for permanent return and came to India in 1950. This permit was later cancelled, and she was directed to leave India. In a petition filed before the High Court of Patna it was declared that Kumar Rani was a citizen of India and the order directing her to leave India was set aside. This Court reversed the order of the High Court holding that since Kumar Rani had migrated form the territory of India to the territory of Pakistan, she had disqualified herself from claiming citizenship of India. The facts proved in Kumar Amar Singhs case,1 SCR 1259  : (S) AIR 1955 SC 282  ), disclose that there was no evidence tending to show that Kumar Rani had entertained at any time before the commencement of the Constitution an intention permanently to reside in Pakistan. Her husband was in India, her property was in India and she had gone to Pakistan for about eight months in the year 1948 and thereafter in April 1949. The Court in that case apparently did not accept the view that to attract Art. 7, migration from the territory of India must be with an intention permanently to reside in the territory now included in PakistanIn my view "migrated form the territory of India" within the meaning of Art. 7 means moving from one place to another but nor necessarily with the intention of permanently residing in the country in which the person has moved. I agree, however, that the movement should be voluntary and not purely temporary, such a movement for purposes of a business transaction or a professional or a social visit.