Case Note & Summary
The Supreme Court of India decided an appeal by the Union of India against a judgment of the Punjab High Court which had quashed an externment order passed under Section 3(2)(c) of the Foreigners Act, 1946. The respondent, Ghaus Mohammad, was described in the order dated January 29, 1958 as a Pakistan national and directed not to remain in India after the expiry of three days from service. The order was served on February 3, 1958, and the respondent moved the High Court on February 6, 1958 under Article 226 of the Constitution to quash it, contending that he was not a Pakistan national. The High Court held that if there was prima facie material to show a person was a foreigner, a civil court would not go into that question because under Section 9 of the Citizenship Act, 1955 the question had to be decided by the prescribed authority, which was the Central Government under the Citizenship Rules, 1956. The High Court concluded there was no prima facie material and quashed the order. The Union of India appealed by special leave. The Supreme Court noted that Section 9 of the Citizenship Act, 1955 deals with termination of citizenship of an Indian citizen in certain circumstances and had no application because the Union did not contend that the respondent had been an Indian citizen whose citizenship had terminated. Section 8 of the Foreigners Act, 1946 was also inapplicable because it concerns determination of nationality of a foreigner whose nationality is uncertain or recognized by more than one foreign country, not the question of whether a person is a foreigner or an Indian citizen. The relevant provision was Section 9 of the Foreigners Act, 1946, which provides that when a question arises whether any person is or is not a foreigner, the onus of proving that such person is not a foreigner lies upon that person, notwithstanding anything contained in the Indian Evidence Act, 1872. The High Court had entirely overlooked this provision and misdirected itself by placing the burden on the Union. The Court held that the question whether the respondent was a foreigner was a question of fact involving a great deal of dispute requiring detailed examination of evidence, and a proceeding under Article 226 would not be appropriate for its decision. Such a question was best decided by a suit, to which course neither party seemed to have any serious objection. The Court set aside the High Court's judgment and order. The learned Attorney General stated that the Union would not take immediate steps to enforce the deportation order so that the respondent could file a suit or take other proceedings. The appeal was allowed.
Headnote
A) Citizenship Law - Termination of Citizenship - Section 9 Citizenship Act, 1955 - Applicability only to termination of Indian citizen's citizenship; not to question whether person is foreigner ab initio - Court held that Union did not contend respondent was an Indian citizen whose citizenship terminated, hence section inapplicable. Held that High Court reference to Section 9 of Citizenship Act was inapposite. (Paras 1-3) B) Foreigners Law - Determination of Nationality - Section 8 Foreigners Act, 1946 - Section 8 applies only when person is already a foreigner and his nationality is uncertain or recognized by more than one foreign country; not applicable to question of foreigner vs Indian citizen - Court agreed with Union that Section 8 did not apply. Held that Section 8 of Foreigners Act is not attracted when the dispute is whether a person is a foreigner or an Indian citizen. (Paras 4-5) C) Foreigners Law - Burden of Proof - Section 9 Foreigners Act, 1946 - Onus of proving person is not a foreigner lies on that person notwithstanding Indian Evidence Act, 1872 - Court held that High Court erred in placing burden on Union; Section 9 applies to present case and onus lay on respondent. Held that Section 9 of Foreigners Act, 1946 cast the burden on the respondent to prove he was not a foreigner. (Paras 4-5) D) Constitutional Law - Writ Jurisdiction - Article 226 Constitution of India - Disputed question of fact of nationality requiring detailed examination of evidence not appropriate for writ petition; better decided by suit - Court set aside High Court's order and permitted respondent to file suit, with Union stating it would not take immediate deportation steps. Held that a proceeding under Article 226 is not appropriate for deciding disputed question of foreigner status. (Paras 6-7)
Issue of Consideration
Whether the High Court erred in quashing externment order by placing burden on Union to prove respondent was foreigner; whether Section 9 Citizenship Act, 1955 and Section 8 Foreigners Act, 1946 applied; which provision governed burden of proof; whether writ jurisdiction appropriate to decide disputed nationality.
Final Decision
Supreme Court allowed the appeal, set aside the High Court judgment and order, and held that Section 9 of Foreigners Act, 1946 placed burden on respondent to prove he was not a foreigner; Section 9 of Citizenship Act, 1955 and Section 8 of Foreigners Act were inapplicable; and the question of foreigner status was a disputed question of fact better decided by a suit. The Union of India stated it would not take immediate steps to enforce the deportation order to allow respondent to file a suit.
Law Points
- When a question arises under the Foreigners Act
- 1946 whether any person is or is not a foreigner
- the onus of proving that such person is not a foreigner lies upon that person
- notwithstanding the Indian Evidence Act
- 1872
- Section 9 of Citizenship Act
- 1955 applies only to termination of citizenship of an Indian citizen and not to a case where the issue is whether the person is a foreigner
- Section 8 of Foreigners Act
- 1946 applies only to determination of nationality of a foreigner whose nationality is uncertain or recognized by more than one foreign country
- not to the question of foreigner versus Indian citizen
- Disputed question of fact of nationality requiring detailed evidence is not appropriate for writ jurisdiction under Article 226
