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2000 DIGILAW 663 (PAT)

Salamat Fatema v. Union of India

2000-05-02

S.N.JHA

body2000
ORDER The petitioners, who are mother and son, seek issuance of writ in the nature of mandamus restraining the respondents from interfering with their residence and stay in India, to be precise, their so called home at Bettiah. Their case, shortly stated, is that in 1951 late Syed Zahir Alam, who was husband of petitioner no.1 and father of petitioner no.2 went to Dhaka and took the petitioners along. In 1954 he returned to India along with the petitioners on the basis of Pakistani passport and visa issued by the authorities of the Indian High Commission. Late Syed Zahir Alam got the visa with respect to self as well as the petitioners extended from time to time upto 1985. He is also said to have made an application for citizenship under section 5(1)(a) of the Citizenship Act after coming into force of the said Act in which favourable report was submitted by the Subdivisional Officer, Bettiah. Nothing tangible, however, seems to have happened. In the meantime, in 1981 Syed Zahir Alam died. It is said that petitioner no.2 also made an application for registration of his citizenship under section 5(1) (a) of the Citizenship Act on 4.8.89 pursuant to advice of the Central Government contained in letter dated 7.7.89 of the Ministry of Home Affairs. It may be mentioned here itself that there is a dispute as to whether petitioner no.2 made any such application. In the counter affidavit filed on behalf of the respondents it has been stated that there is no trace of any such application. A first information report under section 14 of the Foreigners Act, 1946, for overstaying in India was lodged against the petitioners on 6.9.91. The prosecution was later withdrawn to facilitate the deportation of the petitioners from India. In the counter affidavit it has been stated that various opportunities were given to the petitioners to get their stay extended but they did not take steps. As a matter of fact, in one of the paragraphs of the affidavit it has been stated that the petitioners went underground after 1985. Before considering the case of the petitioners in the backdrop of the facts briefly stated above, it would be appropriate to make few general observation on the point of citizenship. As a matter of fact, in one of the paragraphs of the affidavit it has been stated that the petitioners went underground after 1985. Before considering the case of the petitioners in the backdrop of the facts briefly stated above, it would be appropriate to make few general observation on the point of citizenship. Articles 5 of the Constitution of India provides that every person who has his domicile in the territory of India at the commencement of the Constitution and-(a) was born in the territory of India or (b) either of whose parents was born in the territory of India or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. Article 11 of the Constitution empowers the Parliament to make law with respect to acquisition and termination of citizenship and all other matters relating thereto, The Citizenship Act 1955 has thus been enacted to provide for acquisition of citizenship, after the commencement of the Constitution, by birth under section 3, by descent under section 4, by registration under section 5 and by naturalization under section 6. Prima facie, on the case pleaded by the petitioners, Article 5(1)(a) and (b) of the Constitution would seem to cover their cases because not only they were born in the territory of India and had their domicile in the country on the date of commencement of the Constitution, but their parents were also born and had domicile in the country at that time. They claim to have gone to East Pakistan only in 1951. If it is so, question would arise as to whether they lost their citizenship. The citizenship can be lost in only three situations envisaged in sections 8, 9 and 10 of the Citizenship Act. Section 8 refers to renunciation of citizenship, while section 9 refers to termination and section 10 refers to deprivation of citizenship. Prima facie, the provisions of sections 8 and 10 do not seem to have any application. Section 9 also can come into play when a citizen of India voluntarily acquires the citizenship of another country. Section 8 refers to renunciation of citizenship, while section 9 refers to termination and section 10 refers to deprivation of citizenship. Prima facie, the provisions of sections 8 and 10 do not seem to have any application. Section 9 also can come into play when a citizen of India voluntarily acquires the citizenship of another country. Article 9(2) provides 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 this behalf. It is true that the petitioners came to India on a Pakistani passport and visa issued by the authorities of the Indian High Commission, Dhaka, which was got renewed from time to time upto 1985, but in State of U.P. v. Rahmatullah, AIR 1971 Supreme Court 1382, while considering the issue on more or less similar facts though in the context of prosecution under section 14 of the Foreigners Act, the Apex Court observed that a person born in the territory at the commencement of the Constitution, and thus covered by Article 5(a) of the Constitution, would continue to be an Indian citizen unless he lost his citizenship under some law between the commencement of the Constitution and his entry into India. In that case also the person concerned had come to India on 1.4.55 on the basis of Pakistani passport and visa granted by the authorities of the Indian High Commission. The Court held that unless a determination as to whether he had ceased to be a citizen of India is made by the competent authority i.e. the Central Government, no prosecution under section 14 of the Foreigners Act can be maintained. However, in the present case the petitioners instead of asserting that they continued to be citizens of India by virtue of the provisions of Article 5 of the Constitution read with section 2(a) of the Foreigners Act, as it stood prior to the 1957 amendment, on their own saying, acquiesced into making an application for registration of the citizenship under section 5(1)(a) of the Citizenship Act as if they had already lost the citizenship in the meantime. As indicated above, though petitioner no.2 claims to have made an application under section 5(1)(a), unfortunately, no such application is available in the records of the Government. It is obvious that any plea based on Article 5 of the Constitution and the conduct in making application under section 5(1)(a) of the Citizenship Act cannot stand together. Filing of application under section 5(1)(a) of the said Act is suggestive of the fact that the person concerned accepts the citizenship of another country. In the facts of the case, however, I am inclined to give an opportunity to the petitioners to have their case considered by the Central Government, Counsel for the petitioners was at pains to satisfy this Court that the petitioners all along acted bonafide. At the time of his leaving for East Pakistan in 1951 and return to India in 1954, petitioner no.2 was a minor and he simply accompanied his father as dependent son. Similarly, his getting the stay extended from time to time and finally making application under Section 5(1)(a) of the Citizenship Act too was under bonafide advice. All this mayor may not be true. In the facts and circumstances of the case, notwithstanding the fact that on own saying petitioner no.2 had made application under section 5(1)(a) of the Citizenship Act, I am inclined to direct the Central Government to consider whether the petitioners continued to be citizens of India. Under section 9(2) of the Citizenship Act read with the Rules, this power is vested in the Central Government. As mentioned above, at one stage the petitioners were being prosecuted under section 14 of the Foreigner's Act, but as held by the Supreme Court in State of U.P. v. Rahmatullah (supra) without determining the status of the person he cannot be prosecuted under the said Act. A decision on the point must be taken as expeditiously as possible, preferably, within four months of the receipt/production of a copy of this order. Counsel for the petitioners in course of his submission made a request to permit the petitioners to file fresh application under section 5(1)(a) of the Citizenship Act. Though filing of such application would be at a tangent with determination of the dispute under section 9(2) of the Citizenship Act, I do not think it would be proper to deprive the petitioners of the opportunity to make such application at their own risk. Though filing of such application would be at a tangent with determination of the dispute under section 9(2) of the Citizenship Act, I do not think it would be proper to deprive the petitioners of the opportunity to make such application at their own risk. Before I conclude, I must clarify that direction to the Central Government to consider the case of the petitioners under section 9(2) of the Citizenship Act rests on prima facie acceptance of the petitioners' case that they were born in India and had domicile in the territory at the commencement of the Constitution, that they had gone to East Pakistan in 1951 and returned to India in 1954. These are maters of inquiry. It is expected that in taking decision, due attention to these and other relevant aspects of the case would be bestowed by the authority. It is needless to observe that until decision as above is taken by the Central Government, the petitioners should not be deported from India against their wishes. This writ petition is disposed of with the above observations and directions. Let a copy of this order be handed over to Shri Sanjay Singh, Additional Standing Counsel to the Central Government, and Shri Alamdar Hussain, Standing Counsel to the State of Bihar.