Case Note & Summary
The case arose from a criminal prosecution under Section 14 of the Foreigners Act, 1946 against the respondent, Abdul Khader, who was charged with failing to leave India despite an externment order under Section 3(2)(c) of the Act. The respondent had been born in Adoni, India in 1924 and had lived there with his family, paying rent for his shop for about ten years prior to 1958. At the end of 1954 or beginning of 1955, he went to Pakistan for a short visit and returned on January 20, 1955 on a passport issued by the Government of Pakistan, which bore an Indian visa permitting his stay until April 14, 1955. He overstayed the visa and later applied for extension on health grounds, but the record did not show any order on that application. On September 3, 1957, an externment order dated August 9, 1957 was served on him, and his failure to comply led to his prosecution. The Judicial Magistrate of Adoni convicted him, holding that by obtaining a Pakistan passport he had disowned Indian nationality, and that the Central Government's refusal to extend the visa was a final decision under Section 8 of the Foreigners Act. The Sessions Judge of Kurnool dismissed his appeal on the ground that his application for visa extension proved he had renounced Indian citizenship. The High Court of Andhra Pradesh set aside the conviction in revision, and the State appealed to the Supreme Court. The main legal issues were whether the respondent had become a foreigner, whether the courts below had jurisdiction to decide renunciation of citizenship under Section 9(2) of the Citizenship Act, 1955, and whether Section 8 of the Foreigners Act applied. The Supreme Court held that the Magistrate and Sessions Judge had no jurisdiction to decide whether an Indian citizen had acquired Pakistani citizenship, as that question was exclusively for the Central Government under Section 9(2) and Rule 30. There was no evidence of any enquiry or decision by the Central Government. Section 8 was inapplicable because it concerned only foreigners whose nationality among foreign countries was uncertain, not the question of Indian versus foreigner. The Court found that the respondent was an Indian citizen under Article 5(a) of the Constitution, as he was born in India, domiciled there, and his short visit to Pakistan did not amount to migration. The Pakistan passport was evidence of foreign nationality but could not be used by a court due to the statutory bar. Since the prosecution had not established that the respondent was a foreigner, the conviction could not be sustained. The Supreme Court dismissed the State's appeal and upheld the acquittal.
Headnote
A) Constitutional Law - Citizenship - Article 5(a) Constitution of India - A person born in India and domiciled there at the commencement of the Constitution is an Indian citizen; a short visit to Pakistan does not amount to migration unless there is evidence of permanent departure - The respondent was born in India in 1924, had family and property in India, and made only a brief visit to Pakistan in 1954-55; therefore he was held to be an Indian citizen under Article 5(a) and not a foreigner under the Foreigners Act, 1946 - Held that the conviction under Section 14 of the Foreigners Act was not sustainable. B) Citizenship Law - Renunciation of Citizenship - Section 9(2) Citizenship Act, 1955 and Rule 30 Citizenship Rules, 1956 - The question whether an Indian citizen has acquired the citizenship of another country is exclusively for the Central Government; courts have no jurisdiction to decide it - The Magistrate and Sessions Judge erred in independently finding that the respondent had renounced Indian citizenship and acquired Pakistani citizenship based on his Pakistan passport and visa extension application; no enquiry under Rule 30 was made - Held that their findings were without jurisdiction and could not support conviction. C) Foreigners Law - Applicability of Section 8 - Section 8 Foreigners Act, 1946 - Section 8 applies only when a foreigner is recognised as a national by more than one foreign country or when his nationality among foreign countries is uncertain; it does not apply to determine whether a person is an Indian or a foreigner - The Magistrate wrongly relied on Section 8 to treat the Central Government's refusal to extend visa as final, but no such decision had been made and the section was inapplicable - Held that Section 8 could not be used to deem the respondent a foreigner. D) Evidence - Burden of Proof - Section 9 Foreigners Act, 1946 - Once a person shows he is an Indian citizen under Article 5(a), the burden under Section 9 is discharged; a foreign passport is only evidence of foreign nationality but cannot be used by a court due to the bar in Section 9(2) Citizenship Act - The prosecution did not prove that the respondent was a foreigner because the only evidence of foreign nationality was his Pakistan passport, which the court could not consider as proof of renunciation - Held that no conviction could be based on the evidence on record. E) Constitutional Law - Migration - Article 7 Constitution of India - The question whether Article 7 contemplates migration from India to Pakistan after January 26, 1950 was left open; however, a short visit does not amount to migration - The respondent's short stay in Pakistan was not migration, and he retained Indian citizenship from birth - Held that the short visit did not deprive him of Indian citizenship.
Issue of Consideration
Whether the respondent, an Indian citizen, became a foreigner by obtaining a Pakistan passport and making a short visit to Pakistan, and whether the criminal courts had jurisdiction to decide that he had renounced Indian citizenship and acquired Pakistani citizenship under Section 9(2) of the Citizenship Act, 1955; also whether Section 8 of the Foreigners Act, 1946 applied to make the decision of the Central Government final.
Final Decision
The Supreme Court dismissed the State's appeal and upheld the High Court's acquittal, holding that the respondent's conviction under Section 14 of the Foreigners Act, 1946 was not sustainable because the prosecution failed to prove that he was a foreigner; the courts below had no jurisdiction to decide that he had renounced Indian citizenship, and Section 8 was inapplicable.
Law Points
- A person born in India and domiciled at Constitution commencement is Indian citizen under Art 5(a)
- courts lack jurisdiction to decide renunciation under s.9(2) Citizenship Act
- s.8 Foreigners Act applies only to foreigners with uncertain nationality among foreign countries
- short visit abroad does not amount to migration
- burden of proof under s.9 Foreigners Act discharged by showing Indian citizenship.
