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Izhar Ahmad Khan Vs Union of India

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Appellants- Izhar Ahmad Khan

Respondents- Union of India

Decided On: 16 February, 1962

Statues Referred-

  • Constitution of India
  • Citizenship act 1955
  • The Foreigners Act, 1946

Case Referred-

  • D. B. Heiner v. John, (I 932) 76 Law Ed. 772.
  • B. v. Brailsford, (1905) 2 K. B. 730 and Joyce Case,11946] A. C. 347.
  • Domingo Urteliqwi v. John N.D arcy, Henry Didier and Domingo D’ Arble (1835) 9 Law. Ed. 690.
  • Croft. v. Dunphy, 1933 A.C. 156.
  • Mohomed Usman v. State of Madras, AIR 1961 Mad 129.
  • Ghaural Hasan v. State of Rajasthan, AIR 1958 Raj. 173.
  •  Mohd. Khan v. Govt. Andhra Pradesh, AIR 1957 and Pra. 1047.
  •  Sharafat Ali Khan v. State of U. P., AIR 1960 All, 637.

Facts:

The petitioner claims to be citizen of India and sought to enforce under article 19(1)(e) of the Indian constitution. Under section 9(2) of citizenship act, 1955 they had voluntarily acquired citizenship of Pakistan by application of R. 3 of the schedule 3 of citizenship rules 1956.

It was not correct to say that r. 3 of Schedule III of the Citizenship Rules, 1956, which made it obligatory on the authority to infer the acquisition of foreign citizenship from the fact of obtaining a passport from a foreign country was not a rule of evidence but a rule of substantive law. Status of citizenship was not a fundamental right under the Constitution and the Parliament had clearly the power under Art. 11 of the Constitution to regulate the right of citizenship by law.

A rule of conclusive presumption made with a view to affect a specified substantive right was a rule of substantive law and did not cease to be so because it was rested on a fact which was relevant to it. The test was not one of relevancy but whether it was intended to affect a specified substantive right or provide a method of proof. when obtaining of a passport from another country was made conclusive proof of voluntarily acquiring the citizenship of that country, in the context of s. 9 of the Act, a substantive right was directly affected and the rule could not obviously be one of evidence and must be one of substantive law.

It might so happen that when one voluntarily acquired the passport of a country, he might not have to acquire the citizenship of that country.

Issue:

  • Whether petitioner was citizen of India or not?
  • Whether a particular rule was one of substantive law or of evidence had to be judged by what it sought to do?
  • Did it create or extinguish or modify a right or liability or its sole concern was with the adjective 238 function of reaching a conclusion as to what had taken place under the substantive law?

Contentions by Parties-

Petitioner’s Arguments-

The petitioner in petition No. 88 of 1961, claims to be a citizen of India and complains that his fundamental rights under Art. 19 of the Constitution are being infringed because he is about to be deported out of India on the ground that he has acquired the citizenship of Pakistan.

He obtained his passport with a view to return to India. On returning to India with this passport, the petitioner made several representations to the Indian authorities for his recognition as a citizen of India and even tried to obtain registration as such. the conclusive rule in the present case extinguishes the status of citizenship and as such, is a part of the rule of substantive law.

A distinction must be drawn between a rule of evidence, properly so called and a rule which though called a rule of evidence lays down ai rule of substantive law; and that if that distinction is borne in mind it becomes clear that r.3 is not a rule of evidence.

The other argument is that when any fact is stated by a rule to be conclusive proof of another fact, the rule is in effect laying down that the happening of the first fact will be equivalent in law to the happening of the other fact and so a party interested to prove the falsity of such other fact is being prevented from giving relevant evidence.

Respondent’s Arguments

The respondents entered appearance and opposed grant of stay on the ground that the petitioner had ceased to be a citizen of India. he took additional grounds and amongst them, are the two points which have been already indicated.

Thereafter both the respondents have entered appearance and oppose the petition for stay on the ground that the petitioner has ceased to be a citizen of India. The Government of India then took action under s. 9(2) of the Citizenship Act and has determined that the petitioner has voluntarily acquired the citizenship of Pakistan after January 26, 1950, and before December 14, 1957.

The order made by the Government of India shows that in reaching the above conclusions it took into consideration, among other things, the fact that “the petitioner by declaring himself to be a citizen of Pakistan before the Pakistan authorities …… obtained a passport on the 14th December 1957.” As a last attempt to save the rule it was argued on behalf of the respondent that it is not really a rule of irrebuttable -presumption. It is pointed out that r.30(2) lays down that the central Government shall in determining the’ question whether, when or how a person has acquired the citizenship of another country “have due regard to” the rules of evidence specified in Scheduled III.

Judgment-

The question about the validity of this rule has been considered by some of the High Courts in India. The Andhra Pradesh (1) and Allahabad High Courts (2) have held that the rule is invalid, whereas the Bombay, Rajasthan (4) and the Madras High Courts have held that the rule is valid.

Status of citizenship on which the existence or continuance of the said rights rests is itself not one of the fundamental rights guaranteed to anyone. If a law is properly passed by the Parliament affecting the status of citizenship of any citizens in the country, it can be no challenge to the validity of the said law that it affects the fundamental rights of those whose citizenship is thereby terminated.

Under the law as laid down in the impugned rule the fact of obtaining a foreign passport will have this result, even though it may very well be that though he has voluntarily acquired such a passport he has not thereby, or for that purpose acquired the citizenship of another country.

This may happen for instance, when a person who is a citizen of India by reason of descent, but is at the same time a citizen of another country, says, France by birth, obtains a passport from the French authorities. Again, each country is of course free to make its own laws.

Suppose a foreign country makes a law under which it can issue a passport to one who is not its national. If an Indian takes such a passport, he does not under the law of that country become its national but under the rule now being considered, he is to be taken as a foreign national.

The question of validity of Rule 3 of Schedule III of the Citizenship Act came up for consideration before several High Courts in India.

Rule of Law-

The conclusive presumption prevents the party against whom it is drawn from disproving the inference about the existence of fact B which is required to be drawn from the proof of fact A.

Conclusion-

It was held that the contentions raised by the petitioners failed. The principal ground on which the validity of r. 3 is challenged is that whereas s. 9(2) authorizes the Central Government to prescribe rules of evidence subject to which the relevant enquiry should be held, what the Central Government has purported to do in framing-rule 3 is to prescribe a rule of substantive law.

The argument is that when s. 9(2) refers to rules of evidence, it refers obviously to rules of evidence, properly so-called and since the impugned rule is in substance, not a rule of evidence but a rule of substantive law, it is outside the purview of the delegated authority conferred by s. 9(2) and as such, is invalid. In other words, where estoppel is pleaded against a party on the strength of his declaration, act or omission, whereby he intentionally caused or permitted another person to believe a thing to be true, that party is not permitted to say that the thing itself was not true and yet the rule which puts this bar against the party and precludes him from proving that the thing in question is untrue, is treated as a rule of evidence.