Mr.
Louis De Raedt & Ors Vs. Union of India
& Ors [1991] INSC 163 (24 July 1991)
Sharma,
L.M. (J) Sharma, L.M. (J) Verma, Jagdish Saran (J)
CITATION:
1991 AIR 1886 1991 SCR (3) 149 1991 SCC (3) 554 JT 1991 (3) 306 1991 SCALE
(2)127
ACT:
Constitution
of india, 1950: Article 5--`domicile'--Meaning of-Domicile of origin and
domicile of choice--difference between-Domicile of choice--How
acquired--Intention to stay permanently-Burden of proof.
Articles
19(1)(e) and 21---Foreigner not acquiring Indian citizenship-Not entitled to
fundamental right under Article 19(1)(e)--Fundamendal right under Article 21
avail- able--Right of Government to expel persons--Whether absolute and
unrestricted.
Foreigners
Act, 1946: Section 3--expulsion of foreigner from India on his failure to
acquire Indian citizenship---Right of Government of India--Whether absolute and
unrestricted--Decision to deport taken by the competent authority, the Central
Government--Superintendent of Police merely executed the order--Hence not
vitiated.
Citizenship
Act, 1955: Section 6 and third Schedule---Citizenship--Acquiring of--Domicile
by choice--Intention to permanently stay in India--Burden of proof--Staying in India with foreign passports with residen- tial permits renewed from time to
time--Whether establishes animus manendi--Whether entitled to citizenship.
Private
International Law: Foreigner staying in India on Residential permits renewed from time to time--Indian citi- zenship
not acquired --Right of Central Government to expel.
Administrative
Law: Principles of Natural Justice--Hearing-Expulsion of foreigner not
acquiring Indian citizenship--Opportunity of
caring--No hard and fast rule--Absence of material in support of his claim--Non
affording of opportunity before passing the expulsion order--Whether vitiated.
HEAD NOTE:
The
Petitioners, foreign nationals engaged in Christian missionary work have been
staying in India continuously for a long time since
pre-independence period. They continued to stay on the basis of resi- 149 150 dential
permits renewed from time to time. In 1985 an order was passed asking them to
leave the country and they made representations to the authorities, followed by
further representations in 1986 for naturalisation further extension of stay.
However by order dated 8.7.1987 their request was rejected and they were asked
to leave the country by 31st
July, 1987. The
petitioners challenged the said order in the writ petitions filed before this
Court.
It was
contended by the petitioners that since they were staying in this country for a
period of more than five years immediately preceding the commencement of the Consti-
tution, they should be held to have duly acquired Indian citizenship on the
basis of Article 5(e) of the Constitution of India; that their continuous stay
in India has estab- lished their case of domicile in India which cannot be
rejected merely because were holding foreign passports; that proceedings
against them have been initiated under section 9 of the Foreigners Act enabling
them to defend their case; that they were denied hearing; and that in no event
the Superintendent of Police who had signed the deportation order was authorised
to do so.
Dismissing
the Writ Petitions, this Court,
HELD:
1. Every person must have a personal law, and accord- ingly every one must have
a domicile. He receives at birth a domicile of origin which remains his
domicile, wherever he goes, unless and until he acquires a new domicile. The
new domicile, acquired subsequently, is generally called a domicile of choice.
The domicile of origin is received by operation of law at birth and for
acquisition of a domicile of choice one of the necessary conditions is the
intention to remain there permanently. The domicile of origin is retained and
cannot be divested until the acquisition of the domicile of choice. By merely
leaving his country, even permanently, one will not, in the eye of law, lose
his domicile until he acquires a new one. This proposition that the domicile of
origin is retained until the acquisition of a domicile of choice is well
established and does not admit of any exception. [156D-F] Central Bank of India v. Ram Narain, [1955] 1 SCR 697,
relied on.
Halsbury's
Laws of England, 4th Edn., Vol. 8, para 421,
referred to.
2. One
of the necessary conditions mentioned in Article 5 of the 151 Constitution is
that the person concerned must be having his domicile in the territory of India at the commencement of the Constitution. It is not
established that they had such an intention for the sole reason that the Petitioners'have
been staying in India for more than a decade before the
commencement of the Constitution, and it cannot be deemed that they acquired
domicile in India and consequently Indian
citizenship. [154E]
3.1.
For the acquisition of a domicile of choice, it must be shown that the person
concerned had a certain State of mind, the animus manendi. If he claims that he
acquired a new domicile at a particular time, he must prove that he had formed
the intention of making his permanent home in the country of residence and of
continuing to reside there permanently. Residence alone, unaccompanied by this
state of mind, is insufficient. [156H; 157A]
3.2.
The burden to prove that the petitioners had an intention to stay permanently
in India lies on them. The available materials
on the record leave no room for doubt that the petitioners did not have such
intention. At best it can be said that they were uncertain about their
permanent home. During the relevant period very significant and vital political
and social changes were taking place in this country, and those who were able
to make up their mind to adopt this country as their own, took appropriate
legal steps. The petitioners preferred to stay on, on the basis of their
passports issued by other countries, and obtained from time to time permission
of the Indian authorities for their further stay for specific periods. None of
the applications filed by the petitioners in this connection even remotely
suggested that they had formed an intention of permanently residing here. [157B-D]
Mohd. Ayub Khan v. Commissioner of Police, Madras, [1965] 2 SCR 884 and Kedar Pandey v. Narain Bikram Sah, [1965] 3 SCR
793, distinguished.
Union
of India v. Ghaus Mohammed, [1962] 1 SCR 744, referred to.
4. The
fundamental right of the foreigner is confined to Article 21 for life and
liberty and does not include the right to reside and settle in this country, as
mentioned in Article 19(1)(e), which is applicable only to the citizens of this
country. The power of the Government in India to expel foreigners is absolute and unlimited and there is no provision
in the Constitution fettering this discretion. The legal position on this
aspect is not uniform in all the countries but so far the law which 152
operates in India is concerned, the Executive Government has unrestricted right
to expel a foreigner. [158C-E] Hans Muller of Nurenburg v. Superintendent,
Presidency Jail, Calcutta & Ors., [1955] 1 SCR 1284, relied on.
5. So
far the right to be heard is concerned, there cannot be any hard and fast rule
about the manner in which a person concerned has to be given an opportunity to
place his case and it is not claimed that if the authority concerned had served
a notice before passing the impugned order, the petitioners could have produced
some relevant material in support of their claim of acquisition of citizenship,
which they failed to do in the absence of a notice. [158E-F]
6. The
contention that the Superintendent of Police was not authorised to direct
deportation of the petitioners, is devoid of merit. Actually the order was not
passed by the Superintendent of Police. It was the decision of the Central
Government, which was being executed by the Superintendent of Police. This is
clear from the order. [158G]
ORIGINAL
JURISDICTION: Writ Petition (Civil) No. 1410 of 1987.
(Under
Article 32 of the Constitution of India).
WITH Writ
Petition (Criminal) No. 528 of 1987.
AND
Writ Petition (Civil) No. 1372 of 1987.
J.P. Verghese,
Aby T. Varkey and N.N. Sharma for the Petitioners.
Altar
Ahmed, ASG. U.N. Bachawat, R.B. Mishra, Ms. A. Subhashini and Uma Nath Singh
for the Respondents.
The
Judgment of the Court was delivered by SHARMA, J. By these three petitions
under Article 32 of the Constitution, the petitioners who are foreign
nationals, have challenged the order dated 8.7.1987 whereby their prayer for
further extension of the period of their stay in India was rejected and they
were 153 asked to leave the country by the 3 1st July, 1987. Mr. Louis De Raedt,
petitioner in W.P. (C) No. 1410 of 1987, came to India in 1937 on a Belgium
passport with British visa and Mr. B.E. Getter the petitioner in W.P. (Crl.)
No. 528 of 1987 in 1948 on an American passport and both have been engaged in
Christian missionary work. The petitioner in W.P. (C) No. 1372 of 1987, Mrs.
S.J. Getter is Mr. B.E. Getter's wife. Mr. Verghese, the learned counsel, who ap-
peared for the three petitioners, referred to the facts in W.P. (C) No. 1410 of
1987 and stated that the cases of the other two petitioners are similar and
they are entitled to the same relief as Mr. Louis De Raedt.
2.
According to his case, Mr. Louis De Raedt has been staying in India continuously since 1937 excepting
on two occasions when he went to Belgium for short periods in 1966 and 1973. It has been contended that by
virtue of the provi- sions of Article 5(c) of the Constitution of India the
petitioner became a citizen of this country on 26.11.1949, and he cannot,
therefore, be expelled on the assumption that he is a foreigner. Referring to
the Foreigners Act it was urged that power under Section 3(2)(c) could not be exer-
cised because the Rules under the Act have not been framed so far.
Alternatively, it has been argued that the power to expel an alien also has to
be exercised only in accordance with the principles of natural justice and a
foreigner is also entitled to be heard before he is expelled. For all these
reasons it is claimed that the impugned order dated 8.7.1987 being arbitrary
should be quashed and the authori- ties should be directed to permit the petitioners
to stay on.
3. It
has been contended by Mr. Verghese that after the independence of India, appropriate orders were passed
per- mitting many foreign Christian missionaries to stay on permanently in the
country but, as in 1950 petitioner Mr. Louis De Raedt was working in certain
remote area of the Adivasi belt in Bihar, he could not obtain the necessary
order in this regard. Later, however, he had also filed applications for the purpose
which have remained undisposed of till today. 1985 an order was passed asking
him to leave the country, and he made a representation to the authorities on
20.9. 1985, a true copy Whereof is Annexure I to the writ petition. On 1.3.1986
he filed another application for naturalisation, a copy whereof has been marked
as Annexure II. A copy of his third application dated 15.3.1986 is Annexure
III. The impugned order Annexure IV was passed in this background.
4. The
main ground urged by the learned counsel is based on 154 Article 5 of the
Constitution, which reads as follows:
"5.
Citizenship at the commencement of the Constitution --At the commencement of
this Constitution every person who has his domicile in the territory of India
and (a) who was born in the territory of India, or (b) either of whose parents
was born in the territory of India; or (c) who has been ordinarily resident in
the territory of India for not less than five years immediately preceding such
commencement, shall be a citizen of India." The argument is that since Mr.
Louis De Raedt was staying in this country since 1937, that is, for a period of
more than five years immediately preceding the commencement of the
Constitution, he must be held to have duly acquired Indian citizenship.
5. One
of the necessary conditions mentioned in Article 5 of the Constitution is that
the person concerned must be having his domicile in the territory of India at the com- mencement of the Constitution. The question is
as to whether the petitioner fulfils this condition? The facts stated by the
petitioner himself do not leave any room for doubt that he did not have his
domicile here. In his application dated 20.9.1985 addressed to the Home
Minister, Government of Madhya Pradesh, Bhopal, Annexure I, the petitioner stated that he had been staying in this
country on the basis of residential permit renewed from time to time and when
he had gone to Belgium, "No Objection to Return"
Certificate was issued without difficulty. He asserted that since he was
working in education and social work for a long period he was "more Indian
than Belgium". Towards the end of his
application he stated thus:
"Therefore,
I plead for a cancellation of the above order on compassionate ground.
I
would request Your Honour to kindly allow me to stay in India till the end of my life by
extending my residential permit.
For
this act of kindness I will be ever grate- ful to (emphasis added) 155 In his
application dated 1.3. 1986 addressed to the Collec- tor, Surguja (Madhya
Pradesh), which is Annexure II, he mentioned the subject as "request for naturalisation".
In this application he referred to the provisions of Article 5 of the
Constitution as a basis of his claim but concluded his prayer thus:
"If
however Government decides that I have LOST my citizenship (sic) would be
grateful to be informed about it. So that I can apply under one of the naturalisation
Act. (Sic)" He reiterated his stand in Annexure III dated 15.3. 1986.
6. The
entire relevant official records were available with the learned counsel for
the respondents during the hearing of the case, which indicated that the
impugned order (Annexure IV) was passed on the basis of another application of
the petitioner filed earlier on 25.1. 1980. Photostat copies of the said
application were filed and kept on the records of the case. It was stated therein
that the autho- rised period for his stay in India was going to expire on 3.3. 1980. It contained a prayer for
the extension of the period of stay by one year. The petitioner mentioned the
reason for extension of this stay thus: "to do further social work as a
missionary". The purpose of his visit to India was also similarly mentioned: "to do social work as a
missionary". There was no indication whatsoever in the said application
that he intended to stay in this country on a permanent basis. The period for
which the extension was asked for being one year only indicated that by 1980 he
had not decided to reside here permanently.
7. Mr.
Verghese has contended that the fact that the petitioner has been staying in
this country since 1937 and visited Belgium only twice is sufficient by itself
to estab- lish his case of domicile in India. It was argued that the
petitioner's case cannot be rejected merely for the reason that he has been
holding a foreign passport. Reliance was placed on Mohd. Ayub Khan v. Commissioner
of Police, Madras and Another, [1965] 2 SCR 884 and Kedar
Pandey v. Narain Bikram Sah, [1965] 3 SCR 793. Reference was also made to Union
of India v. Ghaus Mohammed, [1962] 1 SCR 744, and it was argued that 'a
proceeding ought to have been started against the petitioner under Section 9 of
the Foreigners Act where he should have been allowed to defend. The learned
counsel submitted that even a foreigner who comes on the strength of a foreign
passport, in case of his overstaying has to be heard before he can be thrown
out, and this has been denied to the petitioners.
156
8.
Lastly, Mr. Verghese contended that in no event the Superintendent of Police
who signed the impugned order, i.e. Annexure, IV, is authorised to direct
deportation of the petitioner.
9.
There is no force in the argument of Mr. Verghese thai for the sole reason that
the petitioner has been stay- ing in this country for more than a decade before
the com- mencement of the Constitution, he must be deemed to have acquired his
domicile in this country and consequently the Indian citizenship. Although it
is impossible to lay down an absolute definition of domicile, as was stated in
Central Bank of India v. Ram Narain, [1955] 1 SCR 697 it is fully established
that an intention to reside for ever in a coun- try where one has taken up his
residence is an essential constituent element for the existence of domicile in
that country. Domicile has been described in Halsbury's Laws of England, 4th
edition, Volume 8, Paragraph 42 1) as the legal relationship between individual
and a territory with a distinctive legal system which invokes that system as
his personal law. Every person must have a personal law, and accordingly every
one must have a domicile. He receives at birth a domicile of origin which
remains his domicile, wherever he goes, unless and until he acquires a new domi-
cile. The new domicile, acquired subsequently, is generally called a domicile
of choice. The domicile of origin is received by operation of law at birth and
for acquisition of a domicile of choice one of the necessary conditions is the
intention to remain there permanently. The domicile of origin is retained and
cannot be divested until the acquisi- tion of the domicile of choice. By merely
leaving his coun- try, even permanently, one will not, in the eye of law, lose
his domicile until he acquires a new one. This aspect was discussed in Central
Bank of India v. Ram Narain (supra) where it was
pointed out that if a person leaves the country of his origin with undoubted
intention of never returning to it again, nevertheless his domicile of origin
adheres to him until he actually settles with the requisite intention in some
other country. The position was summed in Halsbury thus:
"He
may have his home in one country, but be deemed to be domiciled in
another." Thus the proposition that the domicile of origin is retained
until the acquisition of a domicile of choice is well estab- lished and does
not admit of any exception.
10.
For the acquisition of a domicile of choice, it must he shown that the person
concerned had a certain state of mind, the animus manendi. If he claims that he
acquired a new domicile at a particular time, he must prove that he had formed
the inten- tion of making his permanent home in the country of resi- dence and
of continuing to reside there permanently. Resi- dence alone, unaccompanied by
this state of mind, is insuf- ficient.
11.
Coming to the facts of the present cases the ques- tion which has to be
answered is whether at the commencement of the Constitution of India the
petitioners had an inten- tion of staying here permanently. The burden to prove
such an intention lies on them. Far from establishing the case which is now
pressed before us, the available materials on the record leave no room for
doubt that the petitioners did not have such intention. At best it can be said
that they were incertain about their permanent home. During the rele- vant
period very significant and vital political and social changes were taking
place in this country, and those who were able to make up their mind to adopt
this country as their own, took appropriate legal steps. So far the three
petitioners are concerned, they preferred to stay on, on the basis of their
passports issued by other countries, and obtained from time to time permission
of the Indian authorities for their further stay for specific periods.
None
of the applications filed by the petitioners in this connection even remotely
suggests that they had formed any intention of permanently residing here.
12. None
of the cases relied upon on behalf of the petitioners is of any help to them. The
case of Mohd. Ayub Khan was one where the appellant had made an application to
the Central Government under Section 9(2) of the Indian Citizenship Act, 1955
for the determination of his citizen- ship. Section 9(1) says that if any
citizen of India ac- quired the citizenship of
another country between 26.1. 1950 and the commencement of the Citizenship Act,
he ceased to be a citizen of India and sub-section (2) directs that if any
question arises as to whether, when or how any person has acquired the
citizenship of another country, he shall be determined by the prescribed
authority. Mohd. Ayub Khan was a citizen of this country at the commencement of
the constitution of India and was asked to leave the country for the reason
that he had obtained a Pakistani Passport. The question which thus arose in
that case was entirely differ- ent. The case of Kedar Pandey v. Narain Bikram Sah,
(supra), does not help the petitioners at all. On a consideration of the entire
facts and circumstances this Court concluded that "the requisite animus manendi
as has been proved in the finding of the High Court is correct". The
Respondent Narain Bikram Sah, who claimed to have acquired Indian citizenship,
had extensive properties at large number of different places in India and had
pro- 158 duced many judgments showing that he was earlier involved in
litigations relating to title, going upto the High Courts in India and some
time the Privy Council stage. He was born at Banaras and his marriage with a
girl from Himachal Pradesh also took place at Banaras and his children were
born and brought up in India. Besides his other activities supporting his case,
he also produced his Indian passport. In the cases before us the learned
counsel could not point out a single piece of evidence or circumstance which
can support the petitioners' case, and on the other hand they have chosen to
remain here on foreign passports with permission of Indian authorities to stay,
on the basis of the said passports.
Their
claim, as pressed must, therefore, be rejected.
13.
The next point taken on behalf of the petitioners, that the foreigners also
enjoy some fundamental right under the Constitution of this country, is also of
not much help to them. The fundamental right of the foreigner is confined to
Article 21 for life and liberty and does not include the right to reside and
settle in this country, as mentioned in Article 19(1)(e), which is applicable
only to the citizens of this country. It was held by the Constitution Bench in
Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors,
[1955] 1 SCR 1284 that the power of the Government in India to expel foreigners
is absolute and unlimited and there is no provision in the Constitution
lettering this discretion. It was pointed out that the legal position on this
aspect is not uniform in all the countries but so far the law which operates in
India is concerned, the Executive Government has unrestricted right to expel a
foreigner. So far the right to be heard is concerned, there cannot be any hard
and fast rule about the manner in which a person concerned has to be given an
opportunity to place his case and it is not claimed that if the authority
concerned had served a notice before passing the impugned order, the
petitioners could have produced some relevant material in support of their
claim of acquisition of citizenship, which they failed to do in the absence of
a notice.
14.
The last point that the impugned order (Annexure IV) passed. by the
Superintendent of Police, who was not autho- rised to so, is also devoid of any
merit. The order was not passed by the Superintendent of Police; the decision
was of the Central Government which was being executed by the Superintendent,
as is clear from the order itself.
15.
For the reasons mentioned above, we do not find any merit in the petitions,
which are accordingly dismissed, but without costs.
G.N.
Petitions dismissed.
Back