Case: Smt. Shanno Devi Vs. Mangal Sain

and has ignored important evidence which, it is said showed clearly that the respondent had no intention of residing permanently in India. In considering such an argument, it is proper for us to bear in mind the provisions of S. 116(B) of the Representation of the People Act which lays down that the decision of the High Court on appeal from an order of the Election Tribunal in an election petition shall be " final and conclusive. 16. It has been pointed out in more than one case by this Court that while these provisions do not stand in the way of this Courts interfering with the High Courts decision in a fit case, it would be proper for us to bear these provisions of the Representation of the People Act in mind when the correctness of such a decision is challenged before this Court. It is unnecessary for us to consider whether the view of the High Court that even in 1944 Mangal Sain could be said to have been migrated to the eastern districts of Punjab can be successfully challenged or not. Even assuming that that conclusion is out of the way, the further conclusion of the High Court that having moved from his home district to Jullunder in 1944 Mangal Sain had after August 15, 1947, no other intention than of making the territory of India his place of abode would be sufficient to prove his migration to the territory of India from what is now Pakistan. We have been taken through the materials on the record relevant to this question and we can see nothing that would justify our interference with the High Courts conclusion on this point. Much stress was laid by the appellants counsel on the fact that Mangal Sain left Indian shores for Burma in January 1950 and after his arrival there made an application under S. 7(1) of the Union Citizenship Act, 1948 (of Burma) giving notice of his intention to apply for a certificate of naturalization and his statement therein that he intended to reside permanently within the Union of Burma. Assuming however that in October 1950, or even in January 1950 when he left for Burma, Mangal Sain had formed the intention of taking up his permanent residence in Burma, that is wholly irrelevant to the question whether in 1947 he had the intention of residing permanently in India. Learned counsel for the appellant also drew our attention to a statement made in this very application that Mangal Sain had returned to Burma with his mother in 1947. The High Court has after considering this statement held that he had not so returned in 1947. We see no reason to differ with this finding of the High Court. In our opinion, there is nothing on the record to justify any doubt as regards the correctness of the High Courts decision that after August 15, 1947, Mangal Sain who had earlier moved from a place now in Pakistan to Jullunder in India definitely made up his mind to make India his permanent home. Whether or not in January 1950 he changed that intention is irrelevant for our purpose. 17. Our conclusion therefore is that the High Court is right in holding that Mangal Sain satisfies the first requirement of Art. 6 of the Constitution of "migration to the territory of India from the territory now included in Pakistan. It is not disputed and does not ever appear to have been disputed that Mangal Sain was born in India as defined in the Government of India Act, 1935 and thus satisfies the requirement of cl. (a) of Art. 6. 18. There can be no doubt also that since the date of his migration which has for the present purpose to be taken as August 15, 1947, Mangal Sain has been "ordinarily residing in the territory of India. Mr. Sastri contended that to satisfy the test of being "ordinarily resident in the territory of India since the date of his migration it had to be shown that Mangal Sain was in India on January 26, 1950. We do not think that is required. It is first to be noticed that Art. 6 of the Constitution is one of the Article which came into force on November 26, 1949. For applying the test of being "ordinarily resident in the territory of India since the date of his migration, it is necessary therefore to consider the period up to the 26th day of November, 1949 from the date of migration. It is not however even necessary that on the 26th day of November 1949 or immediately before that date he must have been residing in the territory of India. What is necessary is that taking the period beginning with the date on which migration became complete and ending with the date November 26, 1949, as a whole, the person has been " ordinarily resident in the territory of India. It is not necessary that for every day of this period he should have resided in India. In the absence of the definition of the words "ordinarily resident in the Constitution it is reasonable to take the words to mean" resident during this period without any serious break. The materials on the record leave no doubt that there was no break worth the name in Mangal Sains residence in the territory of India from at least August 15, 1947, till the 26th November, 1949. 19. We have therefore come to the conclusion that the High Court was right in sustaining Mangal Sains claim to be deemed a citizen of India under Art. 6 of the Constitution and, in that view was also right in allowing his appeal and ordering the dismissal of the Election Petition. 20. In the view we have taken as regards Mangal Sains claim to citizenship under Art. 6 of the Constitution it is not necessary to consider whether his claim to citizenship under Art. 5 of the Constitution was also good. 21.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. The extreme contention raised by Mr. Sastri on behalf of the appellant that migration under Art. 6 must take place after the territory of India came into existence under the Constitution cannot be accepted. It has to be noticed that Art. 6 deals with the question as to who shall be deemed to be a citizen of India at the commencement of the Constitution. That itself suggests, in the absence of anything to indicate a contrary intention, that the migration which is made an essential requirement for this purpose must have taken place before such commencement. It is also worth noticing that Cl. (b) of Art. 6 which mentions two conditions, one of which must be satisfied in addition to birth as mentioned in Cl. (a) and " migration as mentioned in the main portion of the Article being proved, speaks in its first sub-clause of migration " before the 19th day of July 1948 and in sub-cl. (ii) migration " after the 19th day of July 1948, The second sub-clause requires that the person must be registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of the Constitution. The proviso to that Article says that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application. It is clear from this that the act of migration in Art. 6 must take place before the commencement of the Constitution. It is clear therefore that "migrated to the territory of India means "migrated at any time before the commencement of the Constitution to a place now in the territory of India10. We have referred to these cases on the meaning of the word " Immigration to show that there can be no doubt that the word " migrate may have in some contexts the wider meaning " come or remove to a place without an intention to reside permanently and in some context the narrower meaning " come or removed to a place with the intention of residing there permanently. The fact that the Constitution makers did not use the words " with the intention to reside permanently in Art. 6 is however no reason to think that the wider meaning was intended. In deciding whether the word " migrate was used in the wider or the narrower sense, it is necessary to consider carefully the purpose and scheme of this constitutional legislation. The Constitution after defining the territory of India and making provisions as to how it can be added to or altered, in the four articles contained in its first Chapter proceeds in the second Chapter to deal with the subject of citizenship. Of the seven articles in this chapter the last Article, the Art. 11 only saves expressly the right of Parliament to make provisions as regards acquisition and termination of citizenship and all other matters relating to citizenship. Of the other six articles, the first Art. 5, says who shall be citizens of India at the commencement of the Constitution; while Arts. 6 and 8 lay down who though not citizens under Art. 5 shall be deemed to be citizens of India. Art. 10 provides that once a person is a citizen of India or is deemed to be a citizen of India he shall continue to be a citizen of India, subject of course to the provisions of any law that may be made by Parliament. Article 9 provides that if a person has voluntarily acquired citizenship of any foreign State he shall not be a citizen of India or deemed to be a citizen of India. Art. 7 also denies the right of citizenship to some persons who would have otherwise been citizens of India under Art. 5 or would be deemed to be citizens of India under Art. 611. The primary provision for citizenship of India, in this scheme is in Art5. That follows the usual practice of insisting on birth or domicile which shortly stated means " residence with the intention of living and dying in the country as an essential requirement for citizenship; and confers citizenship on a person fulfilling this requirement if he also satisfied another requirement as regards his birth within what is now the territory of India or birth of any of his parents within this area or ordinary residence in this area for a continuous period of five years immediately preceding the commencement of the Constitution. If there had been no division of India and no portion of the old India had been lost this would have been sufficient, as regards conferment of citizenship apart from the special provision for giving such rights to persons of Indian origin residing outside India. But part of what was India as defined inthe Government of India Act,, had ceased to be India and had become Pakistan. This gave rise to the serious problem whether or not to treat as citizens of India the hundreds of thousands of persons who were of Indian origin-in the sense that they or any of their parents or any of their grand-parents had been born in India-but who would not become citizens under Art5. The Constitution-makers by the provisions of Art. 6 decided to treat as citizens some of these but not all. Those who had not come to the new India before the date of the commencement of the Constitution were excluded, those who had so come were divided into two categories -those who had come before the 19th July, 1948, and those who had come on or after the 19th July, 1948. Persons in the first category had in order to be treated as citizens to satisfy the further requirement of " migration whatever that meant, and of ordinary residence in the territory of India since they " migrated to India; while those in the second category had, in addition to having migrated, to be residents for not less than six months preceding the date of the application for registration as citizens which application had to be filed before the date of the commencement of the Constitution.But while the primary provisions in the Constitution as regards the citizenship for people born at a place now included in India and people whose parents were born at a place now in India insist on the requirement of intention to reside here permanently by using the word " domicile, Art. 6 which under the scheme of the Constitution deals with what may be called " secondary citizenship and says about some persons that they will be deemed to be citizens of India, does not mention "domicile as a requirement. Can it be that the Constitution-makers thought that though in the case of persons born in what has now become India or those any of whose parents was born in what is now India as also in the case of person who had been residing here for not less than five years in what is now India, it was necessary to insist on domicile before conferring citizenship, that was not necessary in the case of persons whose parents or any of whose grand-parents had been born in what was formerly India but is not now India? In our opinion the Constitution-makers could not have thought so. They were aware that the general rule in almost all the countries of the world was to insist on birth or domicile as an essential pre-requisite for citizenship. They knew that in dealing with a somewhat similar problem as regards citizenship of persons born out of what was then the territory of Irish Free State, the Constitution of the Irish Free State had also insisted on domicile in the Irish Free State as a requirement for citizenship. There can be no conceivable reason for their not making a similar insistence here as regards the persons who were born outside what is now India, or persons any of whose parents or grandparents were born there. Mention must also be made of the curious consequences that would follow from a view that an intention to reside permanently in the territory of India is not necessarily in Art. 6. Take 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 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 before he is a citizen; but the second person would not have to satisfy this condition. It would be unreasonable to think that such a curious result could have been intended by the Constitution-makersOur conclusion therefore is that the High Court is right in holding that Mangal Sain satisfies the first requirement of Art. 6 of the Constitution of "migration to the territory of India from the territory now included in Pakistan. It is not disputed and does not ever appear to have been disputed that Mangal Sain was born in India as defined inthe Government of India Act,1935and thus satisfies the requirement of cl. (a) of Art. 6There can be no doubt also that since the date of his migration which has for the present purpose to be taken as August 15, 1947, Mangal Sain has been "ordinarily residing in the territory of India. Mr. Sastri contended that to satisfy the test of being "ordinarily resident in the territory of India since the date of his migration it had to be shown that Mangal Sain was in India on January 26, 1950. We do not think that is required. It is first to be noticed that Art. 6 of the Constitution is one of the Article which came into force on November 26, 1949. For applying the test of being "ordinarily resident in the territory of India since the date of his migration, it is necessary therefore to consider the period up to the 26th day of November, 1949 from the date of migration. It is not however even necessary that on the 26th day of November 1949 or immediately before that date he must have been residing in the territory of India. What is necessary is that taking the period beginning with the date on which migration became complete and ending with the date November 26, 1949, as a whole, the person has been " ordinarily resident in the territory of India. It is not necessary that for every day of this period he should have resided in India. In the absence of the definition of the words "ordinarily resident in the Constitution it is reasonable to take the words to mean" resident during this period without any serious break. The materials on the record leave no doubt that there was no break worth the name in Mangal Sains residence in the territory of India from at least August 15, 1947, till the 26th November, 1949We have therefore come to the conclusion that the High Court was right in sustaining Mangal Sains claim to be deemed a citizen of India under Art. 6 of the Constitution and, in that view was also right in allowing his appeal and ordering the dismissal of the Election Petition.