Decided on: 2 March, 1996
Equivalent citations: 1996 AIR 1614, 1996 SCR (3) 706
Bench: The Hon’ble Chief Justice P.B Gajendragadkar, Justice K.N Wanchoo, Justice M. Hidayatullah, Justice J.C Shah, Justice S.M Sikri, Justice V. Ramaswami
Appellant: Kulathil Mammu
Respondent: The State of Kerala
Statutes Referred: The Constitution of India
Aboobacker was born in Khozikode. His parents were Indian citizens.
In 1948, he went to Pakistan at the age of 12 years. In 1954, he obtained a Pakistani passport and came to India.
After some time, he returned and then again came in 1956 with a fresh visa and the same passport. After living in India till June 1956, he returned.
In the passport, the nationality of Aboobacker was mentioned as Pakistani and the date of migration was mentioned as approximately 1948.
In October 1964, he was found in India without any valid travel documents. He was arrested and a case was filed against him under the Indian Passport Rules 1950. Then, he was released on bail and the matter was reported to State Government.
The State Government passed an order on 5 November 1964, under the Foreigners Act requiring him not to remain in India. Aboobacker did not follow the order so he was arrested and detained.
On November 16, 1964, the appellant filed a writ petition on behalf of Aboobacker in the High Court. The petition raised the contention that Aboobacker was an Indian citizen so the order passed against him was illegal.
The petition was opposed on behalf of the State. The State contended that Aboobacker ceased to be a citizen of India when the Constitution came into force by virtue of Art. 7. Therefore, the order passed by the State Government was legal and proper.
The main question that arose, in this case, was regarding the meaning of the word “migrated” used in Article 7 of the Constitution.
Contentions by parties:
- Appellant’s Arguments:
On the behalf of Aboobacker, it was contended that Article 7 could not be applied in this case as the migration mentioned in this article must be with an intention to settle in Pakistan and leaving India permanently. Aboobacker was minor when he left India so he could not be imputed with any such intention. He went there merely for earning a livelihood.
- Respondent’s Arguments:
The State contended that there is no role of intention while dealing with Article 7 of the Constitution. Migration under Article 7 merely means the physical act of going from India to Pakistan.
The court observed that- This brings us to Smt. Shanno Devi’s case. We are of opinion that the narrower meaning given in that case to the word “migrated” as used in Art. 6 is with respect not correct, and that the word “migrated” used in Arts. 6 and 7 has the wider meaning namely, coming or going from one place to another, whether or not with the intention of residence in the latter place, subject to the qualification that the movement should have been voluntary and should not have been for a specific purpose and for a short and, limited period. The appeal was therefore dismissed.
The word “migrated’ can be interpreted both in a narrower meaning as well as in a wider meaning. In the narrower sense, it means going from one place to another along with the intention of residing permanently in the latter place. While talking about the wider sense, migration means the act of going from one place to another. There is no role of the intention of permanent residence in the latter place in the wider sense.
Article 6 begins with the words “notwithstanding anything in Article 5” and Article 7 begins with the words “notwithstanding anything in articles 5 and 6”. The question of Domicile is not dealt within both these articles. The presence of the non obstante clause in the beginning of these Articles clearly shows that the concept of domicile was not to be brought into them when deciding who shall be deemed citizens of India (Art. 6) or who shall not be deemed to be citizens of India (Art. 7). If it is so, then the word “migrated” used in Article 7 must be given the wider meaning.
This case reversed the judgement of Smt. Shanno Devi’s case. The judgement held that the word “migrated” should be interpreted in a wider sense which says that “migration” means the act of going from one place to another without taking into consideration the intention in doing so. The appeal was therefore dismissed.
Prepared by Priya Kumari