Case: Kulathil Mammu Vs. The State Of Kerala

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 detained2. 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 released3. 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 proper16. I agree that Aboobacker, on whose behalf this appeal has been filed, cannot be said to have acquired the citizenship of India under the Constitution, but as I construe the word "migrate" in Arts. 6 and 7 of the Constitution differently I wish to record my reasons separately. The facts have been stated already and I need not repeat them at length. Aboobakar left India in 1948 when he was 12 years old and went to Karachi. He came to India in 1954 on a Pakistani passport obtained on March 10, 1954 and returned to Pakistan in November 1954. He came once again on the same passport in June 1956 and went back to Pakistan. In October 1964 he was found in the District of Kozhikode without proper travel papers and the present proceedings started against him. He does not claim to have returned to India under a permit for resettlement or permanent return issued by or under the authority of any law, which prima facie, he ought to have done under Arts. 6 and 7 if he wished to assert his Indian citizenship. As he admittedly migrated after March 1, 1947, Art. 7 would apply to him but his claim is that he did not migrate because he had no intention at the time, being a minor of acquiring a new domicile. He relies on a decision of this Court reported in AIR 1961 SC 58   (to which I was a party) in support of his contention that the word migrate means going to another country with a view of acquiring a new domicile there. That ruling is questioned in this appeal. It was decided in Shanno Devis case, AIR 1961 SC 58  , that the word migrate means going from one place to another with the intention of permanently residing in the latter place17. As doubt has been expressed I wish to give my reasons for adhering to the view then expressed. The word migrate has many shades of meaning. At one end of the spectrum it means to go from one place to another and at the other to leave ones country to settle in another. The word also connotes movement from one place of abode to another place of abode29. Part II of the Constitution deals with citizenship. By Art. 11 Parliament is given the power to make provision with respect to the acquisition and termination of citizenship, and by Art. 10 every person who is or is deemed to be a citizen of India under the provisions of Arts. 5 to 9 shall, subject to the provisions of any law that may be made by Parliament, continue to be a citizen of India. Articles 5, 6 7 and 9 were intended to deal with citizenship at the commencement of the Constitution. Article 8 deals with acquisition of citizenship by registration of a person ordinarily residing in any country outside India, if he has either before or after the commencement of the Constitution been registered as a citizen30. By Art. 5 of the Constitution every person who had his domicile in the territory of India [as defined in Art. 1 (3)] and who was either born in the territory of India, or either of whose parents was born in the territory of India, or who had been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement was to be a citizen of India. This is the basic rule conferring citizenship at the commencement of the Constitution upon every person who had his domicile in the territory of India and who satisfied one or more of the three conditions in Art. 5. But Art. 5 was not exhaustive of the conditions in which citizenship of India could be claimed at the commencement of the Constitution: persons who did not satisfy the requirements of Art. 5 could still be citizens.By Art. 6 a person who has migrated to the territory of India from the territory now included in Pakistan would be deemed to be a citizen of India at the commencement of the Constitution if he satisfied two conditions that (a) he or either of his parents or any of hiss was born in India as defined in the Government of India Act, 1935; and that (b) he had either migrated before July 19, 1948, and had ordinarily been resident in the territory of India since the date of his migration or where he had migrated after July 19, 1948, he had been registered as a citizen of India by an officer appointed in that behalf. A person who could not claim to be a citizen of India under Art. 5 could still be deemed to be a citizen of India if the conditions mentioned in Cl. (a) and either of the conditions in Cl. (b) of Art. 6 were satisfied. Article 7 engrafts an exception both upon Arts. 5 and 6. A person who would have been a citizen of India because he satisfied the conditions of Art. 5 or who would be deemed to be a citizen of India because he satisfied the requirements of Art. 6, would still not be deemed to be a citizen of India, if he had after the first day of March 1947, migrated from the territory of India to the territory included in Pakistan, unless he had after having migrated to Pakistan returned to the territory of India under a permit for resettlement or permanent returnArticle 6, therefore, confers citizenship upon a person in the conditions mentioned therein who would otherwise not be entitled to that status under Art. 5, whereas Art. 7 disables a person from claiming the status, notwithstanding that he otherwise complies with the requirements of Art. 5 or of Art. 6, if he has after the specified date migrated from the territory of India to the territory of Pakistan. Article 6 deals with migration into India which confers citizenship and Art. 7 deals with migration from India which disables a person from claiming citizenship of India at the commencement of the Constitution. The expression "migrated" cannot have different meanings in the two ArticlesThe word "migrate" is used in more senses than one: it in some contexts means movement from one region or country to another implying intention to settle in a new land permanently : it in other contexts means movement from one place to another without an intention to settle permanently in that other place. In ascertaining the meaning of the expression "migrate" in Arts. 6 and 7 the Court would have regard to the scope and object of the Constitutional provisions examined in the light of the events which were witnesse both before and after the birth of the dominions of India and Pakistan, resulting in a violent unheaval in whiche exodus of population took place from across the boundaries which divided the dominions.

Reasoning: 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.