UMMAYAU Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition is for the issue of a writ in the nature of habeas corpus in respect of the petitioner's husband Moolakkalil Ummerkutty, son of Mommad. It is her case that he has been taken in to custody by the police on the 21st of this month on the ground chat he is a Pakistani national who has overstayed in this country and that therefore it is necessary to deport him to Pakistan. The principal contention of Sri. Manhu, the learned counsel for the petitioner, is that application has been made by Moolakkilil Ummerkutty under S.5(1) of the Indian Citizenship Act, 1955 for acquiring Indian citizenship, that the said application is still pending and if in the meanwhile deportation is given effect to his right to acquire Indian citizenship will stand defeated. There are also averments in the petition to the effect that he has been staying in this country for several years, that he has married the petitioner and has a couple of children. But it is an admitted fact that Moolakkalil Ummerkutly was in Pakistan, asserted his rights as a Pakistani citizen, enrolled himself as a member of the Naval force of Pakistan and retired from the said service. It is also an admitted fact that he bad made application under S.9(2) of the Indian Citizenship Act, 1955 wherein he had requested the Government of India to determine his status as an Indian citizen, and that the said application has been rejected holding that he is not an Indian citizen. It is also an admitted fact that he was given some time for staying in this country and that that period has long back expired. In his representation Ext. P1 he has inter alia stated in para 4 that during the Indo-Pakistan war of 1965 when he was about to be arrested by the Pakistan CID police accusing him to be an Indian spy he surreptitiously escaped to Muscat in an Arab Launch leaving his movable belongings and foregoing his military pension never to return to that land, Pakistan. These facts make it abundantly clear that he was a Pakistani citizen and served Pakistan Navy. It is also clear from his own ' statement that on his own showing he surreptitiously escaped to Muscat when he was suspected to be a spy. We would like to make it clear that a person who makes an application for grant of Indian citizenship under S.5(1) of the Act has no legal right to stay in this country until the disposal of that application. Consequently it follows that merely on the ground that an application under S.5(1) is pending, this Court should not interfere under Art.226 of the Constitution and prevent his deportation. The considerations that weigh with us in a petition for habeas corpus when an application under S.9(2) of the Indian Citizenship Act is pending are different from those that arise in respect of a person whose application under S.5(1) for acquiring Indian citizenship is pending consideration. When an application under S.9(2) is pending, normally this Court directs that the applicant shall not be deported pending consideration of that application, for, it would be contrary to law to deport a person who is a citizen of this country. Until that determination is made, in normal circumstances it would not be reasonable and fair to deport such a person as it may ultimately turn out that he is an Indian citizen in which case his deportation will be clearly illegal. That would not be the position in respect of a person who is admittedly not an Indian citizen and who has made an application for acquiring Indian citizenship under S.5(1) of the Act. As the application under S.5 can only proceed on the basis that he is not an Indian citizen it is obvious that be has no legal right unless permission is granted to him to stay in this country, to insist that he should not be deported. If the contention that during the pendency of the application under S.5(1) deportation should not be permitted and this Court should interfere is accepted it would lead to disastrous situations affecting the integrity and safety of this nation. If it is held that pending application under S.5(1) of the Act the applicant should not normally be deported, it may give rise to the situation that the worst enemy of the nation who is a spy can with justification stay in this country by merely forwarding an application under S.5(1) of the Act. The security of the country should not be put in peril merely because a citizen of a foreign country is anxious to become a citizen of this country. Besides, even if the person is deported, when his application under S.5 of the Act is allowed we see no good reason why he cannot fake advantage of such an order that may be made. We have therefore no hesitation in taking the view that the normal rule that should be followed in cases of this type when an application under S.5(1) is pending is not to interfere in matters like this to prevent deportation. We do not consider any good reasons as to why there should be a departure from the normal rule in this case. The background in this case does not inspire confidence, justifying an order from this Court.