Case: Mohd. Ayub Khan Vs. Commissioner Of Police, Madras And Another

2. The appellant, who claims that he had acquired the status of an Indian citizen on the commencement of the Constitution as a person who had been ordinarily resident in the territory of India for not less than five years immediately preceding that date, was served with a notice dated July 17, 1957 informing him that as he had obtained Pakistan Passport No. 071377, dated April 1, 1953 he should leave India within one month from the date of service of the notice, and in default of compliance he would be prosecuted and deported from India under the Foreigners Act, 1946 as amended by the Foreigners Law (Amendment) Act, 1957. On August 19, 1957 the appellant applied to the Collector of Madras for registration as a citizen of India. Later he applied to the Central Government under S. 9(2) of the Citizenship Act, 1955 to determine 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 by order, dated May 7, 1958, rejected the application of the appellant under S. 9 of the Citizenship Act3. In Support of his petition before the High Court for issue of a writ of mandamus, the appellant urged that S. 9 of the Citizenship Act, 1955 was ultra vires the Parliament and cl. 3 of Sch. III to the Citizenship Rules was also ultra vires the Central Government, and that in any event R. 30 of the Citizenship Rules contemplated a quasi-judicial inquiry 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 passport from the High Commissioner for Pakistan was not voluntary. Balakrishna Ayyar, J., rejected these contentions. In dealing with the question whether the order of the Central Government was unenforceable because opportunity to prove the appellants case that he had not voluntarily renounced Indian citizenship had not been given, the learned Judge observed that the appellant had not indicated on what points he intended to lead evidence and what kind of evidence he intended to adduce.4. In appeal the High Court held that the appellant had in fact made a declaration on the basis of which the passport was obtained and the allegations made by him did not even imply that he was forced to make a false declaration. In the view of the High Court, S. 9 lays 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, and, therefore, there was no scope for an enquiry of the nature claimed by the appellant.

Reasoning: We are not concerned in this case with the truth or otherwise of the plea raised by the appellant in his petition before the High Court that he was compelled to obtain the passport from the High Commissioner for Pakistan. Balakrishna Ayyar, J., observed that the plea of the appellant was not bona fide. But it is not the function of the Courts to determine the question whether the plea raised is true or not : it is for the authority invested with power under S. 9 (2) to determine that question if it is raised. The High Court in appeal was of the view that S. 9 laid down an objective test and once it was found that the passport was obtained in fact by an Indian citizen from another country, the law determined the legal consequences of that conduct and no question of his intent or understanding arose. We are unable to agree with that view. If voluntary acquisition of citizenship of another country determines Indian citizenship within the meaning of S. 9 (1), and by virtue of Paragraph 3 of Sch. III of the Citizenship Rules a conclusive presumption of voluntary acquisition of citizenship is to be raised from the obtaining of a passport from the Government of any other country, it would be implicit that the obtaining of a passport was the result of the exercise of free volition by the citizen. This view is strengthened by the scheme of S. 9 (2) read with R. 30 which contemplates an enquiry by an authority prescribed under subs. (2) for determination of the question whether citizenship of another country has been acquired by an Indian citizenBut S. 9 (2) read with R. 30 confers the power to determine whether Indian citizenship is terminated upon the specified authority, and in exercising that power the authority is guided by the statutory rules of evidence. It would be impossible to hold that termination of Indian citizenship depends upon action of a foreign country in issuing the passportWe are, therefore, of the view that the High Court was in error in holding that the decision of the Government of India without giving an opportunity to the appellant to prove his case that he had been compelled by the police to obtain a passport from the High Commissioner for Pakistan will sustain the order of deportation against the appellant. It will of course be open to the Central Government to determine whether the appellant has lost the citizenship of India by voluntarily acquiring the citizenship of Pakistan by obtaining a passport from the High Commissioner for Pakistan, or in any other manner. But the determination must be made in accordance with law.