Decided on: February 16, 1962
Equivalent citations: 1962 AIR 1052, 1962 SCR Supl. (3) 235
Bench: Gajendragadkar P.B., Sarkar A.K., Wanchoo K.N., Gupta K.C. Das, Ayyangar N. Rajagopala
Petitioner: Izhar Ahmad Khan
Respondent: Union of India
Statutes Referred: The Citizenship Act, 1955
The first petitioner, in this case, was Izhar Ahmad Khan who was a resident of Bhopal. He claimed to be a citizen of India. On 20th August 1952, police forcibly took him into custody and forced him to board a train which took him to Pakistan and he was left at the border of India and Pakistan. Despite his protests, he was asked to go to Pakistan.
Due to this, his brother approached the High Court under Article 226 of the Constitution for the issue of a writ in the nature of Habeas Corpus.
The High Court stated the judgment in favour of the petitioner and said that he was born in India and was a citizen of India. Along with this, the judge observed that in May and June 1952, the petitioner was in Pakistan.
Therefore, he had contravened the provisions of Section 3 of the Influx from Pakistan (Central) Act and was liable to be removed physically from India under Section 7 of this Act. Later, the petitioner also tried to return to India but he failed.
Then, he secured a passport to come to India. After returning to India, he applied for permission to stay permanently in India. His visa for stay in India was accordingly extended from time to time as his application was pending.
Meanwhile, after the Citizenship Act was passed in 1955, he applied for registration as a citizen. But his application was rejected and he was given a time of seven days to leave India. Izhar filed a writ petition against this order before the Supreme Court.
The second petitioner, in this case, was Syed Hassan who was a resident of Bhopal. In 1951, he received the news about the ill-health condition of his brother.
Therefore, he went to Karachi with his family for some years. After returning from there, he applied for permission to settle down in India permanently to the government.
He was granted long-term visas due to the pending nature of his application. In 1959, an order was passed that directed him to leave India.
The third petitioner, in this case, was Habib Hidayatullah. In April 1950, he sailed from Bombay to Basra (Iraq) regarding his business work.
After this, in May 1963, he went to Karachi and accompanied his brother for his treatment. There, the Pakistan authorities took away his Indian travel documents.
Then, Hidayatullah tried to seek help from Indian High Commission for returning to India. But, he failed and then he applied for and obtained a Pakistani passport in order to return to India on a visa.
- Whether the fact that someone possessed a Pakistani passport meant that he was not a citizen of India?
- Whether Rule 3 of Orders made under the Citizenship Act, 1955, which provided for the law in this regard, was a validly enacted law.
Contentions by parties:
- Petitioner’s Arguments:
- Section 9(2) of the Citizenship Act, 1955 was ultra vires as it affected the status of citizenship and deprived the petitioners of their fundamental rights under Art.19(1)(e) of the Constitution.
- Rule 3 of Sch. III of the Citizenship Rules, 1956 was not a rule of evidence but a rule of substantive law.
- Respondent’s Arguments:
- The petitioner was not a citizen of India under Section 9(2) of the Citizenship Act, 1955.
- Rule 3 of Sch. III of the Citizenship Rules, 1956 was a rule of evidence.
- The court held that the petitioner possessed a Pakistani passport which means that he was a citizen of Pakistan. Therefore, he cannot claim to be a citizen of India
- Status of citizenship was not a fundamental right under the Constitution and the Parliament had clearly the power under Article II of the Constitution to regulate the right of citizenship by law.
- The challenge to Section 9(2) of the Act, therefore, on the ground that enabled the rule-making authority to deprive the petitioners of their rights, of citizenship could not be sustained.
- It was clear that under the law of Pakistan only a citizen of that country could apply for and obtain a passport. The impugned rule, therefore, was not a rule of substantive law and was within the purview of Section 9(2) of the Citizenship Act and its validity could not be challenged.
- In accordance with the decision of the majority, the petitions failed and were dismissed.
In this case, the Court decided to look at the Citizenship Act and the Constitutional Provisions in this regard. As per Section 9 of the Indian Citizenship Act, 1955-
(1) “Any citizen of India who by naturalization, registration, or otherwise voluntarily acquires, or has at any time between the 26th January 1950 or at other times before the commencement of the Act has voluntarily acquired the citizenship of another country shall, upon such acquisition, cease to be a citizen of India.”
(2) “If any question arises as to whether, when, and how such a person has acquired citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence as may be prescribed in this behalf.”
As per the Rules of Evidence, (esp. Rule 3), “the fact that a citizen of India has obtained on any date a passport from a Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of the country before this date”.
The majority decision in the Court held that this formed part of an irrefutable presumption, and could therefore not be challenged in Court. The definition of a passport itself suggests that it is a relevant factor in assuming that the petitioners had acquired Pakistani citizenship; therefore, there was no way of assailing the Constitutionality of this Rule.
Given that a Pakistani passport could only be obtained after having signed a declaration that the person applying for the passport was a citizen of Pakistan, he could no longer claim that he was a citizen of India.
Hence, in this case, the court held that citizenship is not a fundamental right and can be regulated by the legislature. Also, the court stated that the possession of the passport of Pakistan itself proves that the petitioner was a citizen of Pakistan and therefore, he could not claim to be a citizen of India.
Prepared by Priya Kumari