JUDGMENT Yashoda Nandan, J. - This is a petition by Mohd. Qadar Khan u/s 491 of the Code of Criminal Procedure for directions of the nature of habeas corpus. The petition is accompanied by an affidavit sworn to by Mirza Khursheed Beg, uncle-in-law of the Petitioner. It is stated in the affidavit that the Petitioner is a citizen of India, has his permanent domicile in this country and his parents also are citizens of India. According to the affidavit, the Petitioner was also a citizen of this country at the commencement of the Constitution and went to Pakistan in 1952 for a short visit from where he returned back in 1953 on the basis of a passport issued by the authorities in Pakistan. After his return to India in 1953, it is asserted, he obtained service of the State Railways in 1957 and has been so employed without any break since then. In paragraph 5 of the affidavit, it is asserted that the Petitioner neither gave up his Indian citizenship nor acquired citizenship of Pakistan. It is further asserted that the question of the Petitioner's citizenship has never been the subject matter of proceedings u/s 9 of the Citizenship Act, 1955. Admittedly on the 5th December, 1971, the Petitioner was arrested for an alleged offence u/s 14 of the Foreigners Act. He was by an order dated 16th December, 1971, granted bail. According to the Petitioner, on the 30th December, 1971, he was re-arrested by an order of the Superintendent of Police, Gorakhpur, a second time during the period of his release on bail. 2. A counter affidavit has been filed on behalf of the opposite-parties which has been sworn by Harihar Bux Singh, a Sub-Inspector of the Local Intelligence Unit, Gorakhpur. According to it, the Petitioner migrated to Pakistan on the 20th June, 1952 and came to India at the end of the year, 1953 on an Indian Visa dated 14th July, 1953, valid upto 30th July, 1954 and a passport issued by the Pakistan authorities dated 1st June, 1953, describing himself as Mohammad Qadar Khan and declaring himself as a Pakistani national. It is asserted in the counter-affidavit that after his arrival in India, the Petitioner, neither reported his arrival to the 'Civil Authorities' nor obtained any residential permit as required by para 7 (2) of the Foreigners Order, 1948, but went underground. It is asserted in the counter-affidavit that after his arrival in India, the Petitioner, neither reported his arrival to the 'Civil Authorities' nor obtained any residential permit as required by para 7 (2) of the Foreigners Order, 1948, but went underground. It is stated that the Petitioner's name was consequently brought on the list of untraced Pakistani nationals of district Gorakhpur. It is admitted that the Petitioner obtained service with the North Eastern Railways but it is stated that he managed to do so by wrongly describing himself as Mohammad Qadir Khan and ultimately on receipt of information about his presence at Gorakhpur, he was taken in custody u/s 14 of the Foreigners Act. It is admitted that by an order dated 16th December, 1971, passed by the learned Sessions Judge, Gorakhpur, the Petitioner was released on bail on the 17th December, 1971. In paragraph 6 of the counter affidavit, it is disclosed that when the recent war broke out between India and Pakistan, the Government advised the Superintendent of Police to take action against the Petitioner under the Foreigners (Internment) Order, 1962 and consequently on the 29th December, 1971, the Superintendent of Police, Gorakhpur, in his capacity as 'Civil Authority' constituted under the Foreigners (Internment) Order, 1962-hereinafter referred to as the 1962 Order--issued an order for his arrest and detention under paragraphs 5/8 thereof. On the basis of that order, the Petitioner was arrested on the 30th December, 1971 and lodged in the District Jail, Gorakhpur. 3. It thus transpires that the Petitioner is in fact being detained on the basis of an order issued by the Civil Authority under the 1962 Order. We have consequently to decide as to whether the Petitioner's detention under the 1962 Order is legally justified or not. 4. Learned Counsel for the Petitioner urged that his case is not covered by the 1962 Order at all and consequently his continued detention is unsanctioned by any law and is illegal and unjustified. 5. Clause 5 of the 1962 Order occurs in Ch. II while Clause 8 is the Ch. Ill thereof. Clause 3 of the 1962 Order which is also in Ch. 5. Clause 5 of the 1962 Order occurs in Ch. II while Clause 8 is the Ch. Ill thereof. Clause 3 of the 1962 Order which is also in Ch. II, after its amendment in 1965, stands as follows: This chapter shall apply to and in relation to any national of Pakistan and to any other foreigner who is and any person who, or either of whose parents, or any of whose grand parents was at any time a citizen or subject of any country at war with, or committing external aggression against, India or of any > other country assisting the country at war with, or committing such aggression against, India. An examination of Clause 3 indicates that the provisions of Ch. II of the 1962 Order are applicable to the following categories of persons: 1. Any national of Pakistan and to 2. Any other foreigner who is a citizen or subject of any country at war with, or committing external aggression against, India or of any other country assisting the country at war with, or committing such aggression against, India, 3. Any person who was at any time a citizen or subject of any country at war with, or committing external aggression against, India or of any other country assisting the country at war with, or committing such aggression against, India. 4. Any person either of whose parents or any of whose grand parents was at any time citizen or subject of any country at war with, or committing external aggression against, India, or of any other country assisting the country at war with, or committing such aggression against, India. Learned Counsel for the Petitioner urged that he does not belong to any of the classes to which by reason of Clause 3, Clause 5 of the 1962 Order is applicable. There is, in our opinion, force in this contention. 6. The 1962 Order was issued by the Central Government in exercise of powers Under Sections 3, 4 and 8 of the Foreigners Act, 1946, as amended by subsequent legislation read with Foreigners Law (Application and Amendment) Ordinance, 1962, which was latter repealed by an enactment of the same year bearing the same title. The word "foreigner" has been defined in Section 2(a) of the Foreigners Act as meaning "a person who is not a citizen of India". The word "foreigner" has been defined in Section 2(a) of the Foreigners Act as meaning "a person who is not a citizen of India". The Petitioner admittedly was a citizen of India on the date when the Constitution came into force He thus became a citizen of India on the coming into force of the Constitution Under Article 5 thereof. Consequently in order to justify his inclusion either in the first or second category of persons as classified by us above so as to attract the application of Ch. II of the 1962 Order to him, it must be found that he ceased to be a citizen of India after the coming into force of the Constitution. 7. According to the case set up by the opposite-parties in the counter-affidavit subsequent to the date of coming into force of the Constitution and before the enforcement of the Citizenship Act, the Petitioner having migrated to Pakistan voluntarily acquired the citizenship of that country and consequently ceased to be a citizen of India. While interpreting its own earlier decision in Izhar Ahmad Khan Vs. Union of India (UOI), AIR 1962 SC 1052 , the Supreme Court observed as follows in The Government of Andhra Pradesh Vs. Syed Mohd. Khan, AIR 1962 SC 1778 : It is clear that in the course of the judgment, this Court has emphasised the fact that the question as to whether a person has lost his citizenship of this country and has acquired the citizenship of a foreign country has to be tried by the Central Government and it is only after the Central Government has decided the point that the State Government can deal with the person as a foreigner. It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned Rule, the conclusion may follow that he has acquired the citizenship of the foreign country but that conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question. It may be that if a passport from a foreign Government is obtained by a citizen and the case falls under the impugned Rule, the conclusion may follow that he has acquired the citizenship of the foreign country but that conclusion can be drawn only by the appropriate authority authorised under the Act to enquire into the question. Therefore, there is no doubt that in all cases where action is proposed to be taken against persons residing in this country on the ground that they have acquired the citizenship of a foreign State and have lost in consequence the citizenship of this country, it is essential that that question should be first considered by the Central Government. These decisions of the Supreme Court have been followed in numerous cases since then. In State of U.P. Vs. Rehmatullah, AIR 1971 SC 1382 which went up in appeal from this Court, the views quoted above were reiterated. 8. Admittedly no decision u/s 9 of the Citizenship Act has been taken by the Central Government till now. According to the counter-affidavit filed on behalf of the State, the Superintendent of Police, Gorakhpur, has written to the State Government to refer the matter about the citizenship of the Petitioner to the Central Government u/s 9(2) of the Citizenship Act. In view of the decisions of the Supreme Court cited above, it is clear that the opposite-parties had no power to treat the Petitioner as a foreigner till a determination to that effect has been made by the Central Government u/s 9 of the Citizenship Act. Until such a determination has been made, the Petitioner cannot be treated as belonging to either of the first two categories of the classifications made by us either by the State or by this Court. 9. Learned Counsel for the State, however, strenuously contended that the Petitioner may not be a "foreigner" within the meaning of the Foreigners Act and Clause 3 of the 1962 Order but certainly is a "national of Pakistan" and consequently falls within the first category of persons to whom that clause applies. It was urged that since the Citizenship Act does not apply to determination of questions of nationality it is open to this Court to hold that the Petitioner is a national of Pakistan and is consequently included in category 1 of the classifications made by us. It was urged that since the Citizenship Act does not apply to determination of questions of nationality it is open to this Court to hold that the Petitioner is a national of Pakistan and is consequently included in category 1 of the classifications made by us. There is, in our opinion, no force in this contention. Clause 3 which has been quoted above makes the provisions of Ch. II applicable to "any national of Pakistan and to any foreigner." The use of the words any other foreigner clearly shows that a national of Pakistan is as much a foreigner as any other though he has been separately classified and differently treated. A careful analysis of Clause 3 discloses that the only distinction drawn between Pakistani nationals and other foreigners is that while the provisions of Ch. II of the 1962 Order are applicable to nationals of Pakistan unconditionally, they became applicable to other foreigners only if they are citizens or subjects of a country at war with, or committing external aggression against India or of any other country assisting the country at war with, or committing such aggression. It is universally known that since Pakistan came into existence, the relations between the two countries have been strained and there has existed a continuous threat of aggression and war. It appears to us that it is on account or this historical background that the Central Government while framing the 1962 Order treated the nationals of Pakistan as a distinct category of foreigners and made the provisions of Ch. II applicable to them irrespective of the consideration as to whether Pakistan is at war with India or not at any point of time. As far as citizens or subjects of any country other than Pakistan are concerned, Ch. II becomes applicable to them on account of Clause 3 only in the event of that country committing external aggression against India or assisting any country committing such aggression. 10. It may be readily conceded that strictly speaking nationality and citizenship are not interchangeable terms and while a citizen of a State must necessarily be a national of that State, a national need not be a citizen of that State (See observation of B.P. Sinha, C.J. in The State Trading Corporation of India Ltd. and Others Vs. The Commercial Tax Officer, Visakhapatnam and Others, AIR 1963 SC 1811 . The Commercial Tax Officer, Visakhapatnam and Others, AIR 1963 SC 1811 . For reasons already given and those to follow, we are of the opinion that the words "national of Pakistan" in the context they occur mean no more than citizen of Pakistan. Moreover, it is the positive case of the opposite parties in the counter-affidavit that in 1952 the Petitioner migrated to Pakistan and acquired the citizenship of that State. In the circumstances, the question as to whether the Petitioner acquired some status in relation to Pakistan other than its citizenship does not arise for consideration. 11. It is not the case of the State that the Petitioner's parents or grandparents were at any time citizens or subjects of any country at war with or committing external aggression against, India or of any other country assisting the country at war with, or committing such aggression against India and consequently he cannot be included in the third category of the classifications made by us. 12. Learned Counsel for the State, however, urged with considerable vehemence that even though the Petitioner may not be a citizen of a country at war with, or committing external aggression against, India or of any other country assisting the country at war with, or committing such aggression against, India, he had become a subject of Pakistan on account of his having gone to Pakistan in the year 1952 and having returned to India on the basis of a Pakistani passport which he obtained after declaring himself as a Pakistani national. Learned Counsel contended that there is a distinction between the word "citizen" and the expression "subject". It was urged by him that even though the question as to whether the Petitioner had acquired the citizenship of Pakistan and thus lost his citizenship of India and became a foreigner may be exclusively within the powers of the Central Government to decide, the question as to whether he had become a "subject" of Pakistan or not is open to be considered by this Court. In our opinion, the two words "citizen" and "subject" in Clause 3 of the 1962 Order have been used as synonyms and convey the same meaning. Though the question did not directly arise for consideration before the Supreme Court in The State Trading Corporation of India Ltd. and Others Vs. In our opinion, the two words "citizen" and "subject" in Clause 3 of the 1962 Order have been used as synonyms and convey the same meaning. Though the question did not directly arise for consideration before the Supreme Court in The State Trading Corporation of India Ltd. and Others Vs. The Commercial Tax Officer, Visakhapatnam and Others, AIR 1963 SC 1811 a passage from "We is on Nationality and Statelessness in International Law" (1956) pp. 4-5 was quoted in the judgment of Hidayatullah, J. as he then was and is as follows: One of the terms frequently used synonymously with nationality is citizen ship. Historically, this is correct for States with the Roman conception of nationality, but not for States with the feudal conception of nationality, where citizenship is used to denote not political status but membership of a local community. It has, however become usual to employ the term citizen instead o subject in republican States-including common law countries such as the United States: "he who before was a 'subject of the King' is now a 'citizen' of the States'"-and in that sense in those State the terms 'nationality' and 'citizenship must be regarded as synonymous. This quotation shows that the words 'national', 'citizen' and 'subject' have commonly come to be employed to denote the same concept. Citizens of a country where there is still a King are, it appears described as 'subjects' while 'citizens of a country which has a republican set up are described as 'citizens'. At a later stage of the judgment, Hidayatullah, J. has observed as follows: The word 'subject' need not be considered in a sinister sense. It only meant a citizen though the feudal concept of subjection seemed to persist in the word. This observation by the learned Judge also indicates that the two expressions 'citizen' and 'subject' are indicative of the same concept depending upon the nature of the Government existing in the country concerned. Shah, J. (as he was), while considering the true concept of citizenship has cited with approval the following observation by Waite, C.J. in V.L. Minor v. R. Happersett (1875) 21 Wall 162 : 22 Law Ed. 627: There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. 627: There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance. For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words "subject", "inhabitant" and "citizen" have been used and the choice between them is sometimes made to depend upon the form of the Government. Citizen is now more commonly employed, however and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation and nothing more. The passages quoted above give ample support to the view taken by us that when the Central Government used the expressions "national" "citizen" and "subject" in Clause 3, they were used to denote the same concept and different terms were used merely to avoid repetitions. In this connection it might be usefully mentioned that there are on the borders of India monarchies like Sikkim, Bhutan and Nepal and the nationals of those countries might well be termed as "subjects" of those countries. Since the interpretation placed by us of the provisions of Clause 3 of the 1962 Order, Ch. Ill cannot be made applicable to the case of the Petitioner, his arrest and internment on the basis of Clause 5 thereof cannot be justified. 13. Clause 8 of the 1962 Order which is the other provision under which the Petitioner's arrest and detention is sought to be justified by the State authorities the 'Civil Authority' to arrest without any warrant "any foreigner". 13. Clause 8 of the 1962 Order which is the other provision under which the Petitioner's arrest and detention is sought to be justified by the State authorities the 'Civil Authority' to arrest without any warrant "any foreigner". For the reasons already given by us while considering the scope of Clause 3 of the 1962 Order, it must be held that in the absence of any decision by the Central Government, u/s 9 of the Citizenship Act, the State cannot take action against the Petitioner Under Clause 8 treating him as a foreigner. 14. In this view of the matter, the Petitioner's detention in jail is wholly unjustified and illegal. 15. After we had heard this petition for some time, learned Counsel for the State raised an argument challenging the maintainability of this petition on a ground in the nature of a preliminary objection. He contended that since a Proclamation of Emergency made by the President of India Under Article 352(1) of the Constitution is in operation, the power of the State to pass an order of detention is uncontrolled by Article 19 in consequence of Article 358. He further urged that the petition which in effect is one for the enforcement of the fundamental rights Under Articles 21 and 22 is not maintainable in consequence of the Order made by the President of India by Gazette Notification dated 5th December, 1971, in exercise of powers conferred on him by Clause 1 of Article 359 of the Constitution. The Gazette Notification is as follows: G.S.R. 1843-In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the right of any person who is: (a) a foreigner or (b) a person who, or either of whose parents, or any of whose grand parents was at any time a citizen or subject of any country committing external aggression against India, or of any other country assisting the country committing such aggression against India, to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the proclamation of Emergency issued Under Clause (l)of Article 352 thereof on the 3rd December, 1971 is in force. Explanation.-In this order, the word "foreigner" has the meaning assigned to it in the Foreigners Act, 1946. 16. Explanation.-In this order, the word "foreigner" has the meaning assigned to it in the Foreigners Act, 1946. 16. His contention in substance was that every detention must necessarily result in affecting one of the fundamental rights guaranteed by one or the other of the Articles covered either by Article 358 of the Constitution or by the Presidential Order made Under Article 359. He urged consequently, that if an order of detention is permitted to be challenged on any ground whatsoever it will inevitably result in disregard either of Article 358 or the Presidential Order issued Under Article 359(1). According to him consequently as long as the Presidential Order subsists no detention made by the State is open to scrutiny by Courts even if it is wholly unsupported by any law in existence. He invited our attention to paragraph 10 of the decision in Makhan Singh Vs. State of Punjab (and connected appeals), AIR 1964 SC 381 for the purpose of submitting that such an argument had been advanced in that case but had been left, undecided. The paragraph is as follows: Before proceeding further, we may at this stage, in parenthesis, observe that there has been some argument before us on the question as to whether the fundamental rights specified in the Presidential Order issued Under Article 359 are even theoretically alive during the period specified in the said Order. The learned Attorney General has contended that the suspension of the citizens' right to move any court for the enforcement of the said rights, in law, amounts to the suspension of the said rights themselves for the said period. We do not propose to decide this question in the present appeals. We will assume in favour of the Appellants that the said rights are, in theory, alive and it is on that assumption that we will deal with the other points raised in the present appeals. We are unable to interpret the paragraph quoted above in the fashion canvassed by the learned Counsel. In Makhan Singh v. State of Punjab (supra) the relevant facts were that the Appellants before the Supreme Court had been detained as a result of orders issued under the Defence of India Rules. We are unable to interpret the paragraph quoted above in the fashion canvassed by the learned Counsel. In Makhan Singh v. State of Punjab (supra) the relevant facts were that the Appellants before the Supreme Court had been detained as a result of orders issued under the Defence of India Rules. The orders were challenged by the detenus by means of petitions u/s 491(1)(b), Code of Criminal Procedure on the ground that the relevant rule under which the detention orders had been passed were violative of the fundamental rights guaranteed to them by Articles 21 and 22 and hence had no legal efficacy. The Punjab and Bombay High Courts dismissed the petitions holding that the Presidential Order that had been issued Under Article 359 of the Constitution created a bar which precluded the detenus from moving the High Courts u/s 491(1)(b), Code of Criminal Procedure. In the appeals before the Supreme Court it was contended that the bar created by the Presidential Order was confined to proceedings Under Article 32 of the Constitution. The contention appears to have been countered by the learned Attorney-General advancing the argument noticed in paragraph 10 of the Reports quoted above and urging that since the fundamental rights mentioned in the Presidential Order themselves were not even theoretically alive they could not be enforced at all irrespective of the nature of the proceedings. It was for this purpose, in our opinion, that the learned Attorney-General submitted, that the fundamental rights in respect of which the Presidential Order had been issued were not even theoretically alive. Since orders of detention had been impugned only on the ground that they were passed under Rules that were in breach of Articles 21 and 22, there could have been no occasion for the submission that an order of detention could not be impeached on any grounds whatsoever. In fact, in paragraphs 35(a) and 36 to 38 of the judgment as published in the All India Reporter, it was clearly held that the power of the Court to grant relief to a person claiming to have been illegally detained is not effected where the challenge to orders of detention is not founded on the provision of Articles 14, 19, 21 and 22 of the Constitution but is based on other grounds. In paragraph 35(a) Gajendragadkar, J. speaking on behalf of himself, Sarkar, Wanchoo, Hidayatullah, K.C. Das Gupta and Shah, JJ. In paragraph 35(a) Gajendragadkar, J. speaking on behalf of himself, Sarkar, Wanchoo, Hidayatullah, K.C. Das Gupta and Shah, JJ. considered the hypothetical case a detenu alleging that he was in detention in violation of mandatory provisions of the Act under which the State claimed to have detained him. It was held that in such a case it was open to the detenu to move the Courts to challenge his detention. Such a plea, it was specifically held, is outside the purview of a declaration Under Article 359(1) and the right of the detenu to move for his release on such a ground remained unaffected by the Presidential Order. In paragraph 36 of the judgment the learned Judges held that where the challenge to the detention order was grounded on an allegation of mala-fide on the part of the detaining authority, the detenu could not be precluded from substantiating his plea on the ground of the bar created by Article 359 (1) and the Presidential Order. In paragraph 38, it was held that "if a detenu contends that the operative provision of the law under which he is detained suffers from the vice of excessive delegation and is, therefore, invalid, the plea thus raised by the detenue cannot at the threshold be said to be barred by the Presidential Order." The instances considered in that judgment of Gajendragadkar, J., it was observed, are not exhaustive of situations in which the power of the Court to grant relief of a person claiming to be under illegal detention is not barred on account of the Presidential Order. If during the operation of an Order Under Article 359 it is open to a person in detention to claim relief on the ground that this detention is in disregard of a mandatory provision of the law under which he is being detained, there is, in our judgment, no reason why he cannot challenge his detention on the ground that it is unsanctioned by any law in existence. 17. There is yet another reason, in our judgment, why the preliminary objection must fail. The Presidential Order applies to the limited class of persons specifically mentioned therein. A comparison of the order made by the President in exercise of powers Under Article 339 of the Constitution and Clause 3 of the 1962 Order shows that they both apply to the same classes of persons. The Presidential Order applies to the limited class of persons specifically mentioned therein. A comparison of the order made by the President in exercise of powers Under Article 339 of the Constitution and Clause 3 of the 1962 Order shows that they both apply to the same classes of persons. It is significant that the Presidential Order unlike the 1962 Order does not separately mention 'nationals' of Pakistan but includes them among 'foreigners'. We have already given detailed reasons for holding that the Petitioner does not belong to any of the four categories of persons to whom Clause 3 of the 1962 Order is applicable. For identical reasons, we hold that the Order made by the President of India cannot affect his right to move this Court for his release from illegal detention because he does not belong to any of the classes of persons to whom the Order applies. 18. We consequently allow this petition and direct that the Petitioner be released forthwith unless required in connection with some other case.