MAMMU Vs. STATE OF KERALA

JUDGEMENT

(1.) P. Govinda Menon This is a petition under Art.226 of the Constitution of India for the issue of a writ of Habeas Corpus or other direction in the nature thereof directing the respondents to produce Sri A. K. Aboobaker before Court and to order that he be set at liberty.

(2.) ON 5th November 1964 a notice Ex. P-1 under S.3 (2) of the Foreigners Act, 1946 was served on the said Aboobaker directing him not to remain in India on pain of action being taken against him and the same day he was arrested for the purpose of deporting him to Pakistan. This petition has been filed on his behalf challenging the validity of the order. It is stated in the affidavit filed in support of the petition that Aboobaker was born at Kummakode amsom in Nadapuram village in Kozhikode district, that his parents were Indian citizens, that his father and mother remained throughout in India and retained their Indian domicle and nationality, that it was when he was a minor that Aboobaker left India in search of employment, that during minority he had no legal capacity to acquire a domicile different from that of his parents and so he could not, in law, be said to have 'migrated' to Pakistan. It was further stated that the question whether Aboobaker had acquired the citizenship of another country and whether he had lost his Indian citizenship is a matter which should be determined by the Central Government under S.9(2) of the Citizenship Act read with R.30 of the rules framed thereunder and it is only after obtaining such a decision that the State Government could deal with him as a foreigner, and not having done so, the deportation order cannot be legally justified.

(3.) BEFORE dealing with the points raised by the petitioner's learned counsel it would be useful to refer to the relevant provisions of Part II of the Constitution dealing with citizenship. Art.5 provides that at the commencement of the Constitution, every person who has his domicile in the territory of India and who satisfies one or the other of the three tests prescribed by Cl. (a), (b) and (c) shall be a citizen of India. Art.6 deals with persons who have migrated to the territory of India from Pakistan and it provides that they shall be deemed to be citizens of India at the commencement of the Constitution they satisfy the requirements of clauses (a) and (b). In other words, Art.6 extends the right of citizenship to persons who would not satisfy the test of Art.5, and so, persons who would be entitled to be treated as citizens of India at the commencement of the Constitution are covered by Art.5 & 6. Art.7 with which we are concerned provides that notwithstanding anything in Art.5 & 6 a person who has after the first day of March 1947 'migrated' from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India. The proviso deals with persons who having migrated to Pakistan have returned to the territory of India under a permit for resettlement or permanent return, but with that class of persons we are not concerned, as Aboobaker had no permit for resettlement or permanent return to India. Art.8 deals with the rights of citizenship of persons of Indian origin who reside outside India. Art.9 provides that no person shall be a citizen of India by virtue of Art.5, 6, or 8 if he has voluntarily acquired the citizenship of any foreign State.