ABUBACKER Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioners in all these cases are of Indian origin, except the petitioner in O. P. No. 5441 of 1995, who was born in Mahe in 1935, which was part of Pondicherry, a French settlement. Petitioners left India for employment to countries like Pakistan, Britain, Malaysia, some of which are still Commonwealth countries. Petitioners went for employment to Pakistan, except the petitioner in O. P. No. 53 of 1998 who left for United Kingdom and is holding a British passport. Petitioner in O. P. No. 1717 of 1999 is holding a Malaysian passport. Petitioners are now in India taking up the stand that they are Indian citizens and left India on compelling circumstances, and had to acquire foreign passport. Since their status as Indian citizen was disputed and authorities took steps to arrest and deport them, they preferred applications before the Central Government for determination of their status under S.9(2) of the Citizenship Act, which says that if any question arises as to whether, when or how any person has acquired the 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 that behalf. Contentions were raised before the Government of India, stating that some of the petitioners left India to secure employment abroad leaving their parents, wife and children in India. Petitioners claimed that they were victims of the vagaries of Travel Agents and had to leave the country without proper Travel documents, and without holding any Indian passport. Passports of other countries were obtained for better job opportunities and not voluntarily. According to them, passports of other countries were obtained so as to facilitate them to return to India. Those contentions were considered by the Government of India. Petitioners were given an opportunity of being heard. Government of India rejected those contentions and held that petitioners are not Indian citizens.

(2.) Petitioners have challenged those orders on various grounds. According to the petitioners, they have no intention whatsoever to renounce the Indian Citizenship, and to acquire passports of Pakistan, Britain or Malaysia. According to them, the mere fact that they have obtained Pakistani, British or Malaysian passport, would not necessarily mean that they have voluntarily acquired those passports. Reliance was placed by petitioners on the decision of the Supreme Court in MD. Ayub Khan v. Commissioner of Police, AIR 1965 SC 1623 . The Supreme Court held that if a plea is raised by a citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. Cases may be visualised in which on account of force a person may be compelled or on account of fraud or misrepresentation he may be induced without any intention of renunciation of his Indian citizenship to obtain a passport from a foreign country. Petitioners submit the same would not give rise to a conclusive presumption that they had voluntarily obtained the citizenship of other country.

(3.) The Citizenship Act, 1955 was enacted by the Parliament to provide for the acquisition and determination of Indian citizenship. Provisions of Constitution of India, particularly Art.5 to 9, determine as to who are citizens of India at the commencement thereof. Art.10 of the Constitution of India provides for continuance of such citizenship subject to provisions of any law that may be made by Parliament. Art.11 of the Constitution of India leaves it to the law makers to deal with the cases of acquisition of citizenship after the commencement of the Constitution, which led to the enactment of the Citizenship Act, 1955. S.9 of the Citizenship Act provides for determination of Indian Citizenship in case a person voluntarily acquires citizenship of another country. Art.9 of the Constitution of India deals with a person voluntarily acquiring citizenship of any foreign State. S.9(1) of the Citizenship Act provides for termination of citizenship of an Indian citizen, if he has by naturalisation, registration, or otherwise, voluntarily acquired the citizenship of another country. Subject to the exceptions in the proviso thereto, naturalisation, registration or acquisition of citizenship of another country operates to terminate the citizenship of India. Sub-s.(2) of S.9 provides for setting up an authority to determine the question where, when and how citizenship of another country has been acquired, and R.30 of the Citizenship Rules the Central Government is designated as the authority which is invested with powers to determine the question in such manner, and having regard to such rules of evidence as may be prescribed. Provision for prescribing rules of evidence, having regard to which the question of acquisition of citizenship of another country has to be determined, clearly indicates that the order is not to be made on the mere satisfaction of the authority without enquiry as to how the citizen concerned has obtained a foreign passport.