Report No. 107
2.7. The problem.-
Assuring that rule 3, Schedule III of the Citizenship Act only provides for a rule of evidence, the validity of the rule is still doubtful and the majority decision of the Supreme Court1 may not be correct. Article 5 of he Constitution provides:
"At the commencement of the 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 proceeding such commencement; shall be a citizen of India."
The relevant portion of Article 9 of the Constitution provides: No person shall be a citizen of India by virtue of Article 5. If he has voluntarily acquired the citizenship of any foreign State. (Emphasis supplied). Therefore, when section 9(2) of the Citizenship Act deals with the question of acquisition of the citizenship of another country, it contemplates voluntary acquisition as provided for in Article 9 of the Constitution. If this is so, under rule 30 of the Citizenship Rules, the Central Government is the authority to decide whether a person has voluntarily acquired the citizenship of another country, and the Central Government shall do so in accordance with the rules of evidence specified in Schedule III.
In the case of a person who has obtained a passport of any other country, since rule 3, Schedule III is a rule of evidence, the Central Government will have to automatically decide that such person has voluntarily acquired the citizenship of another country and ceased to be a citizen of India under Article 9. This leads to the following contradiction. The question whether a person did something voluntarily is a question of fact because it is a question regarding his state of mind. But rule 3, Schedule III, does not allow any inquiry into by state of mind of the person who has acquired a passport from another country. The rule is thus repugnant to section 9(2), Citizenship Act, which contemplates an enquiry, and hence void.
1. AIR 1962 SC 1052.
