Case Note & Summary
The litigation arose from a suit filed by respondent No. 1, Shah Mohammad, who was born in undivided India on July 3, 1934. He went to Pakistan in October 1950, later obtained a visa from the Indian High Commission in Pakistan, and returned to India on July 22, 1953. After his authorised stay expired, he sought permanent settlement and filed a writ petition, which was dismissed with liberty to file a suit. On May 6, 1955, he instituted a suit seeking a permanent injunction against the Union of India, State of Uttar Pradesh, and other authorities from deporting him, claiming he had never ceased to be an Indian citizen as his trip to Pakistan was undertaken as a minor without intention to settle permanently. The Munsif dismissed the suit, holding that respondent No. 1 had ceased to be an Indian citizen. In first appeal, the Additional Civil Judge reversed this decision, finding that as a minor under the guardianship of his father in India, departure to Pakistan did not change his nationality. The State preferred a second appeal to the Allahabad High Court. During the pendency of the suit, the Indian Citizenship Act, 1955 came into force on December 30, 1955. Before the High Court, the State contended that under Section 9(2) of the Act read with Rule 30 of the Citizenship Rules, 1956, the question whether respondent No. 1 had acquired Pakistani citizenship was exclusively determinable by the Central Government and not by civil courts. The High Court rejected this submission, relying on its earlier decision in Abida Khatoon v. State of U.P., which held that Section 9 was not retrospective and could not divest courts of jurisdiction over suits already pending. The High Court remanded the case to the first appellate court to determine whether by spending one year in Pakistan after attaining majority, respondent No. 1 had acquired Pakistani citizenship. On remand, the lower appellate court found in respondent No. 1’s favour, and the High Court thereafter dismissed the State’s appeal. The State appealed to the Supreme Court. Two issues fell for consideration: (i) whether Section 9 of the Citizenship Act, 1955 applied to a suit pending when the Act came into force, and (ii) whether giving retrospective effect to Section 9 violated Article 21 of the Constitution. The State argued that the plain language of Section 9(1) covered voluntary acquisitions of foreign citizenship between January 26, 1950 and the commencement of the Act, and that the exclusive jurisdiction conferred on the Central Government by Section 9(2) and Rule 30 was valid. The respondent supported the High Court’s view, contending that retrospective operation would infringe his right under Article 21. The Supreme Court held that Section 9(1) by its unambiguous terms embraces all cases of voluntary acquisition of foreign citizenship between January 26, 1950 and the date of commencement as well as thereafter, and that giving it only prospective effect would render the relevant words redundant. It further held that Parliament, deriving power from Article 11 and Entry 17 of List I of the Seventh Schedule, was competent to designate the Central Government as the exclusive forum for deciding such questions; such a law constitutes the ‘procedure established by law’ within Article 21 and does not violate personal liberty, even if retrospective. The Court disapproved the reasoning in Abida Khatoon’s case and directed the High Court to dispose of the appeal after referring the determination of acquisition of Pakistani citizenship to the Central Government. The appeal was allowed to that extent, with the State’s position upheld.
Headnote
A) Citizenship Law - Loss of Indian Citizenship by Acquisition of Foreign Nationality - Retrospective Application of Section 9(1), Citizenship Act, 1955 - Section 9(1) of the Indian Citizenship Act, 1955, covers all cases where an Indian citizen voluntarily acquired citizenship of another country between January 26, 1950 and the commencement of the Act, or after such commencement - The words ‘or has at any time between the 26th January 1950 and the commencement of the Act’ would be redundant if only prospective operation is given; thus s.9 applies to suits pending on the date the Act came into force (Paras [1010F-G]). B) Citizenship Law - Determination of Citizenship Status by Central Government - Exclusive Jurisdiction under Section 9(2) and Rule 30 - Section 9(2) of the Indian Citizenship Act, 1955 read with Rule 30 of the Citizenship Rules, 1956, vests exclusive authority in the Central Government to decide whether, when and how an Indian citizen has acquired citizenship of another country - Parliament was competent under Art.11 and Entry 17, List I of the Seventh Schedule to specify the forum for such determination, precluding the jurisdiction of civil courts; the earlier view in Abida Khatoon case disapproved (Paras [1011D-H], [1012C]). C) Constitutional Law - Validity of Procedure under Articles 11 and 21 - Article 21 and Procedure Established by Law - Parliament may by law provide a forum for determining citizenship under Art.11 and Entry 17 of List I; such law constitutes the ‘procedure established by law’ under Art.21 and does not violate personal liberty even if it operates retrospectively - The retrospective operation of s.9 does not contravene Art.21 because the new procedure becomes the procedure established by law; the High Court therefore erred in directing a factual determination by the lower appellate court instead of referring the question to the Central Government (Paras [1012E-G]).
Issue of Consideration
Whether Section 9 of the Indian Citizenship Act 1955 applies to a suit pending on the date the Act came into force; and whether such retrospective application violates the guarantee of personal liberty under Article 21 of the Constitution.
Final Decision
The Supreme Court allowed the State’s appeal, holding that Section 9 of the Indian Citizenship Act, 1955 applies to suits pending on the date of its commencement and that the question whether respondent No.1 had voluntarily acquired the citizenship of Pakistan must be determined by the Central Government under Section 9(2) and Rule 30 of the Citizenship Rules, 1956. The retrospective application does not violate Article 21 as the new procedure becomes the procedure established by law. The High Court’s decision in Abida Khatoon was disapproved. The case was remitted to the High Court to dispose of the appeal after referring the question of acquisition of foreign citizenship to the Central Government.
Law Points
- Legal points not extracted
- Section 9(1) of Indian Citizenship Act 1955 covers voluntary acquisition of foreign citizenship between 26 January 1950 and commencement of Act or thereafter
- Section 9(2) read with Rule 30 of Citizenship Rules 1956 vests exclusive authority in Central Government to determine acquisition of foreign citizenship
- Parliament competent under Article 11 and Entry 17 List I to specify forum for determining citizenship
- procedure so established is ‘procedure established by law’ under Article 21 and does not violate personal liberty even if retrospective
