State of Uttar Pradesh & Ors Vs.
Shah Mohammad & ANR [1969] INSC 78 (13 March 1969)
13/03/1969 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
CITATION: 1969 AIR 1234 1969 SCR (3)1006 1969
SCC (1) 771
CITATOR INFO:
F 1984 SC1714 (2,7,8) R 1986 SC1534 (9)
ACT:
Indian Citizenship Act 57 of 1955, s. 9 and
Citizenship Rules, 1956, r. 30-Applicability of provisions to suit pending when
Act came into force.
HEADNOTE:
Respondent No. 1 was born in undivided India
on July 3, 1934. He went to Pakistan in October 1950. In 1953 he obtained a
visa from the Indian High Commission in Pakistan and came to India on July 22,
1953. After the expiry of his period of stay he sought permanent settlement in
India. On May 6, 1955 he filed a suit claiming that he was a minor when he went
on a trip to Pakistan and had not ceased to be an Indian citizen. He sought a
permanent injunction restraining the Union of India and other authorities from
deporting him. The Munsif who tried the suit held that respondent No. 1 had
ceased to be an Indian citizen, and dismissed the suit. The District Judge in
first appeal held that being a minor whose father was in India respondent no.1
could not by leaving for Pakistan, lose his Indian nationality. In second
appeal the High Court of Allahabad remanded the case to the first appellate
court to determine the question whether by having spent one year in Pakistan
after attaining majority respondent no. 1 had acquired the citizenship of
Pakistan. The High Court rejected the contention on behalf of the State that in
view of s. 9(2) of the Indian Citizenship Act 1955 which came into force on
December 30, 1955 and Rule 30 of the Citizenship Rules made under the Act, the
question whether respondent no. 1 was a citizen of India or not could only be
decided by the Central Government. In taking this view the High Court relied on
the decision in Abida Khatoon's case in which a single Judge of that court had
held that s. 9 of the Citizenship Act 1955 was not retrospective and could not
take away the vested right of a citizen who had already filed a suit to have
his claim for citizenship decided by a court. 'the first appellate court gave
after remand a finding favourable to respondent no. 1 and on receipt of this
finding the High Court dismissed the State's appeal. The State then appealed to
this Court. The questions that fell for consideration were : (i) whether s. 9
of the Act would apply to a suit pending on the date when the Act came into
force; (ii) whether in view of the fact that the procedure established by law
before the commencement of the Act allowed the question as to the acquisition
of the citizenship of another country to be determined by courts, there was by
giving retrospective operation to s. 9, a violation of the guarantee of
personal liberty under Art. 21.
HELD : (i) The language of sub-s. (1) of s. 9
is clear and unequivocal and leaves no room for doubt that it would cover all
cases where an Indian citizen has acquired foreign nationality between January
26, 1950 and its commencement or where he acquires such nationality after its
commencement.
The words "or has at any time between
the 26th January 1950 and the commencement of the Act, voluntarily acquired the
citizenship of another country" would become almost redundant if only
prespective operation is given to s. 9(1) of the Act. This according to the
settled rules of interpretation cannot be done, [1010 F-G] 1007 (ii) The Act
has been enacted under the powers of the Parliament preserved by Art. 11 in
express terms and a law made by Parliament cannot, as. held in lzhar Ahmed's
case be impeached on the ground that it is inconsistent with the provisions
contained in other Articles in Part II of the Constitution. The Parliament had
also legislative competence under Entry 17, List I of Seventh Schedule. It
could thus make a provision, about the forum where the question as do whether a
person had acquired citizenship of another country could be determined and this
is what has been done by r. 30. [1011 B-D] The cases that would ordinarily
arise about loss of Indian citizenship by acquisition of foreign citizenship
would be of three kinds : (1) Indian citizens who voluntarily acquired
citizenship of a foreign, State perior to the commencement of the Constitution;
(2) Indian citizens who voluntarily acquired the citizenship of another State
or country between January 26, 1950 and December 30, 1955 i.e.
the date of commencement of the Act, and (3)
Indian Citizens who voluntarily acquired foreign citizenship after the date of
commencement of the Act i.e. December 30, 1955. As regards the first category
they were dealt with by Art. 9 of the Constitution. The second and third categories
would be covered by the provisions of S. 9 of the Act.. Therefore, if a
question arises as to whether when and how an Indian citizen has acquired
citizenship of another country that has to be determined by the central
Government by virtue of the provisions of sub-s. (2) of s. 9 read with r. 30 of
the Citizenship Rules. In view of the amplitude of the language employed in s.
9 which takes in persons mentioned in category (2) mentioned above, the entire
argument which prevailed with the Allahabad High Court in Abida Khatoon's case
can have no substance. [1011 D-H, 1012 C] lzhar Ahmad Khan v. Union of India,
[1962] Supp. 3 S.C.R. 235, 244, 245., Akbar Khan Alam Khan & Anr. v. Union
of India, [1962] 1 S.C.R. 779 and The Government of Andhra Pradesh v. Syed
Mohd. Khan, [1962] Supp. 3 S.C.R. 288, referred to.
Abida Khatoon & Anr. v. State of. U.P.
& Ors. A.I.R. 1963 All 260, disapproved.
(iii) The contention that retrospective
operation of s. 9 would contravene Art. 21 of the Constitution could not be accepted.
If the Parliament was competent under Art. 11 which is a constitutional
provision read with the relevant entry in List I to legislate about' cases of
persons belonging to categories 2 and 3 referred to earlier it could certainly
enact a legislation in exercise of its sovereign power which laid down a
procedure different from the one which obtained before. The new procedure would
itself become the "procedure established by law" within the meaning
of Art.' 21 of the Constitution. [101 2 E-G] The High Court was therefore wrong
in the present case in calling for a decision of the lower appellate court on
the issue of the plaintiff having acquired or not the citizenship of Pakistan
between July 3, 1952 and the date of his return to India. [High Court accordingly
directed to have question determined by Central Government and thereafter
dispose of appeal finally]. [1013 B-C]
CIVILL APPPLLATE JURISDICTION: Civil Appeal
No. 347 of 1966.
Appeal by special leave from the judgment and
order dated December 11, 1963 of the Allahabad High Court in second Appeal No,
3809 of 1958.
1008 C. B. Agarwala, O. P. Rana and Ravindra
Rana, for the appellants.
Denial Latifi and M. 1. Khowaja, for
respondent No. 1.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave from a judg- ment of the
Allahabad High Court in which the principal question for determination is
whether s. 9 of the Indian Citizenship Act. 1955, hereinafter called the
"Act", which came into force on December 30, 1955, would be
applicable to a suit which was pending on that date.
Respondent No. 1 was born on July 3, 1934. He
went to Pakistan in October 1950. In March 1953 he obtained a visa from the
Indian High Commission in Pakistan for coming to India. He came to India on
July 22, 1953. On July 20, 1954 the period of authorised stay expired and
respondent No. 1 applied for permanent settlement in India. He, however.
filed a writ petition in the High Court on
July 15, 1954 but the same was dismissed on February 10, 1955 and respondent
No. 1 was directed to file a suit. He instituted a suit on May 6, 1955. He
claimed that he was born in India of parents who were residing here and that he
was a minor when he was persuaded by two muslim youths to accompany them on a
trip to Pakistan. He went there without any intention to settle there
permanently. Later on he made efforts to return but due to certain restrictions
he was unsuccessful.
He had no alternative but to obtain a
passport from the Pakistan authorities in order to come to India. He had thus
never changed his nationality and continued to remain a citizen of India. He
sought a permanent injunction res- training the Union of India, the State of
U.P., District Magistrate, Kanpur and the Superintendent of Police.
Kanpur. who were impleaded as defendants from
deporting him.
The suit was contested and on the, pleadings
of the parties the appropriate issues were framed. The learned Munsif held that
respondent No. 1 had gone to Pakistan for settling there permanently and had
ceased to be an Indian citizen.
The suit was dismissed. Respondent No. 1
appealed to the First Additional Civil Judge, Kanpur. The Teamed Judge was of
the view that respondent No. 1 had gone to Pakistan when he was a minor and
when his father, who was his guardian, was in India. By his departure to
Pakistan, respondent No.
1 could not change his nationality. Even on a
consideration of the evidence it could not be held that he had shifted to
Pakistan with the intention of settling there permanently.
His appeal was allowed and a permanent
injunction as prayed was issued. The Union of India and other appellants
preferred an appeal to the High 1009 Court. Before the High Court a preliminary
objection was taken that the civil court had no jurisdiction to try the
question whether respondent No. 1 had acquired the citizenship of Pakistan
which matter had to be referred to the Central Government under Rule 30 of the
Citizenship Rules framed under the Act. This objection was repelled in view of
another decision of the High Court according to which s. 9 of the Act and Rule
30 could not operate retrospectively and affect pending litigation. Before the
High Court the finding that respondent No. 1 did not go to Pakistan with the
intention of settling there permanently was not challenged by the appellants.
The High Court was inclined to agree with the lower appellate court that so
long as respondent No. 1 was a minor he could not change his Indian domicile because
his parents were domiciled in this country. The High Court proceeded to say
that since respondent No. 1 had spent one year in Pakistan after he had'
obtained majority it was necessary to investigate whether he had acquired,
during that period, the citizenship of Pakistan. An appropriate issue was
framed and remitted to the lower appellate court for its determination. The
appellate court held that respondent No. 1 had not acquired the citizenship of
Pakistan since it was not legally possible for him to do so for the reason that
according to laws of Pakistan he could become a major only on attaining the age
of twenty one. On December 11, 1963 the High Court disposed of the appeal of
the present appellants by dismissing it in view of the findings which were in
favour of respondent No. 1.
Learned counsel for the appellants had
contended before us that the civil court had no jurisdiction to decide the
question of citizenship after the enforcement of the Act towards the end of the
year 1955 in view of the provisions of Rule 30 of the Citizenship Rules 1956
promulgated in exercise of the Dower conferred by s. 1 8 (2) (h) of the Act.
Section 9 is in the following terms "S. 9(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 this 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, until the
Central Government otherwise directs.
1010 (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."
Rule 30 provides:
"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 purpose of s. 9(2) by 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." The validity of the provisions of the Act and
the Rules is no longer open to challenge. 'It has not been disputed by learned
counsel for respondent No. 1 that after the enforcement of the Act and
promulgation of Rule 30 the only authority which is competent to determine
whether citizenship of Pakistan has been acquired by him is the Central Government.
But it has been strenuously urged that the suit in the present case had been
instituted prior to the date of enforcement of the Act and therefore respondent
No. 1 was entitled to get this question determined by the Courts and not by the
Central Government. In other words s. 9 of the Act cannot be given
'retrospective operation so as to be made applicable to pending proceedings.
Thus the first point which has to be decided is whether s. 9 either expressly
or by necessary implication has been made applicable to or would govern pending
proceedings. The language of sub-s. (1) is clear and unequivocal and leaves no
room for doubt that it would cover all cases where an Indian citizen has
acquired foreign nationality between January 26, 1950 and its commencement or
where he acquires such nationality after it-; commencement. The words "or
has at any time between the 26th January 1950 and the, commencement of this
Act. voluntarily acquired the citizenship of another country" would become
almost redundant if only prospective operation, is given to s. 9 (1) of the
Act. This according to the settled rules of intepretation cannot be done.
It must be remembered that Article 9 of the
Constitution 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. , This. means
that if prior to the commencement of the Constitution a person' had voluntarily
acquired the citizenship of any foreign State he was not entitled' to' 'claim
the citizenship of India by virtue of Arts. 5 and 6 or 8. This article thus
deals with cases where the citizenship of a foreign State had been acquired by
an Indian citizen prior to the commencement of the Constitution (vide Izhar
Ahmed Khan v. Union of India) (1). Article 11, however, makes it clear that
Parliament has the power to make any provision with respect to the acquisition
and termination of citizenship and all other matters relating to citizenship.
The Parliament could thus regulate the right
of citizenship by law. As pointed out in the above decision of this Court it
would be open to the Parliament to affect the rights of citizens and the
provisions made by the Parliamentary statute cannot be impeached on the ground
that they are inconsistent with the provisions contained in other Articles, in
Part II of the Constitution. The Act has been enacted under the powers of the
Parliament preserved by Art.
11 in express terms. The Parliament had also
legislative competence under Entry 17, List I of Seventh Schedule. It could
thus make a provision about the forum where the question as to whether a person
had acquired citizenship of another country could be determined and this is
what has been done by Rule 30. The cases that would ordinarily arise about loss
of Indian citizenship by acquisition of foreign citizenship would be of three
kinds: (1) Indian citizens who voluntarily acquired citizenship of a foreign
State prior to the commencement of the Constitution; (2) Indian citizens who
voluntarily acquired the citizenship of another State or country between
January 26, 1950 and December 30, 1955 i.e. the date of commencement of the Act
and (3) Indian citizens who voluntarily acquired foreign citizenship after the
date of commencement of the Act i.e. December 30, 1955.
As regards the first category they were dealt
with by Art. 9 of the Constitution. The second and the third categories would
be covered by the provisions of s. 9 of the Act. If a question arises as to
whether, when or how an Indian citizen has, acquired the citizenship of another
country that has to be determined by the Central Government by virtue of the
provisions of sub-s. (2) of s. 9 read with Rule 30 of the Citizenship Rules.
Counsel for respondent No. 1 has relied on a
decision of a learned Single Judge of the Allahabad High Court in Abida Khatoon
& Another v. State of U.P. & Ors. (2) which was followed in the present
case. There it was observed that a litigant, after filing a suit, acquired a
vested right to have all questions determined by the court in which the suit
was filed and that the institution of the suit carried with it all the rights
of appeal then in force. Referring to the normal principle that an Act is
ordinarily not retrospective, that vested rights are not disturbed - (1) [1962]
Supp 3 S. R. 235, 244, 245, (2) A.I.R. 1963 All. 260.
1012 and that the jurisdiction of the civil
courts in pending cases is not taken away by the creation of a new tribunal for
the determination of a particular question, the learned judge held that there
was nothing in the language or the scheme of the Act to suggest that Parliament
wanted to depart from these principles. We are unable to agree. In our judgment
from the amplitude of the language employed in s. 9 which takes in persons in
category (2) mentioned above the intention has been made clear that all cases
which come up for determination where an Indian citizen has voluntarily
acquired the citizenship of a foreign country after the commencement of the
Constitution have to be dealt with and decided in accordance with its
provisions. In this view of the matter the entire argument which prevailed with
the Allahabad court can have no substance.
It has next been contended that retrospective
operation should not be given to s. 9 of the Act because loss of Citizenship is
a serious and grave matter and it involves loss of personal liberty. Under Art.
21 no person can be deprived of his life or personal liberty except according
to procedure established by law. The procedure established by law before the
commencement of the Act was the ordinary procedure of determination by civil
courts whenever a question arose about loss of Indian citizenship by
acquisition of citizenship of a foreign country or State.
It is suggested by learned counsel for
respondent No. 1 that by giving retrospective operation to s. 9 so as to make
it applicable to pending proceedings the provisions of Art. 21 win be
contravened or violated. This would render s. 9 of the Act unconstitutional. It
is somewhat difficult to appreciate the argument much less to accede to it. If
the Parliament was competent under Art. 11, which is a constitutional provision
read with the relevant Entry in List 1, to legislate about cases of persons
belonging to categories 2 and 3 referred to at a previous stage it could
certainly enact a legislation in exercise of its sovereign power which laid
down procedure different from the one which obtained before. The new procedure
would itself become the "procedure established by law" within the
meaning of Art. 21 of the Constitution. Therefore even on the assumption that
loss of Indian citizenship with consequent deportation may involve loss of
personal liberty within the meaning of Art.
21, it is not possible to hold that by
applying s. 9 of the Act and Rule 30 of the Rules to a case in which a suit had
been instituted prior to the commencement of the Act there would be any
contravention or violation of that Article.
In conclusion it may be mentioned that this
could, in several cases, has consistently held that questions falling within s.
9(2) have to be determined to the extent indicated therein by the 1013 Central
Government and not by the courts. Such matters as are not covered by that
provision have, however, to be determined by the courts; (see Akbar Khan Alam
Khan & Anr. v. The Union of India & Ors. (1) and lzhar Ahmed Khan v. Union
of India) (2) and The Government of Andhra Pradesh v.
Syed Mohd. Khan) (3).
In the present case the High Court ought not
to have called for a decision of the lower appellate court on the issue of the
plaintiff having acquired or not acquired the citizenship of Pakistan between
July 3, 1952 and the date of his return to India. The appeal is, consequently,
allowed and the order of the High Court is hereby set aside. It will be for the
High Court now to make appropriate orders for determination of the aforesaid
question by the Central Government after which alone the High Court will be in
a position to dispose of the appeal finally. Costs will abide the result.
G.C. Appeal allowed.
(1) [1962] 1 S.C.R.779.
(2) [1962] Supp. 3 S.C.R. 235.
(3) (1962] Supp. 3 S.C.R. 288.
LlISup-C.1/69-2,500-31-3-70-GIPF.
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