Bhanwaroo Khan & ors vs Union of India & ors AIR 2002 SC 1614

Author- Farsana A S, Student, School of Legal Studies, CUSAT

Edited by- Masooma Naqvi, Student, Amity University, Lucknow

1. ABSTRACT / HEADNOTE

A Writ Petition was made before the Hon’ble Supreme Court of India challenging an order of the Central Govt. in determining the citizenship of petitioners under the Indian Citizenship Act, 1955. The appellants voluntarily migrated to Pakistan after the partition and obtained Pakistan nationality. They came to India using a Pakistan passport and a visa obtained from the Indian Authority. Upon the expiry date of the visa period they illegally stayed in India. When detected, they filed a Writ Petition to claim Indian Nationality, fearing arrest. The Supreme Court on appeal directed the petitioners to approach the concerned govt. authorities under the Citizenship Act to decide on the matter. the Indian Govt. passed an order under the Act rejecting the petitioner’s claim to Indian citizenship. The court upon evaluating the evidence and the factual circumstances found the order factually correct and in accordance with the law and in turn dismissed the petition.

Keywords

Indian citizenship Act,1955- Section 9(2)- Rule 3 of Schedule III- Pakistani passport- Partition- Migration- Visa expiry-Rule of Evidence- Deportation- Supreme Court

1. CASE DETAILS

1. INTRODUCTION AND BACKGROUND OF JUDGEMENT

Partition of India and Pakistan caused massive population changes and numerous complications in citizenship determination. To sort out these complications the Govt. of India passed several laws on citizenship apart from the guiding provisions in the constitution. The Indian Citizenship Act 1955, is one of the prominent statutes that provides the framework for the acquisition and loss of Indian citizenship post constitution period. It also provides that Indian citizenship for a person terminates on acquiring citizenship of another country.[1] The Indian Citizenship Rules, 1956 provides detailed guidelines and procedures for implementation of the Citizenship Act.

The Citizenship Act provides a scope for implementation of Govt. discretion for the determination of citizenship status from the factual circumstances and evidence. The case exemplifies the judicial review over the government’s assessment of citizenship when illegal immigrants claimed entitlement to Indian Nationality.

1. FACTS OF THE CASE
2. i) Procedural Background of the Case
   • The appellants were migrants from Pakistan into India, filed a civil writ petition dated 10th July, 1987 before the High Court of Rajasthan under the allegation that they were Indian citizens and the police were unnecessarily harassing them to deport to Pakistan. The single civil bench dismissed the case and aggrieved by the decision a special appeal was filed which was dismissed by an impugned judgement. The appellants thereafter filed a Civil Appeal before the Supreme Court against the same and the court directed them to file an application before the concerned authorities under the Citizenship Act,1955 to decide on the matter. The order of the Indian Government on 21st July, 1995 passed under Section 9 (2) of the Citizenship Act rejected their claim to be Indian citizens and the appellants filed a Writ Petition before the Supreme Court against the same.
3. ii) Factual Background of the Case
   • The appellant No. 1, Bhanwaroo Khan and the appellant No. 2, wife of the appellant No. 1, claimed to be the residents of Village Hammoosar, Tehsil Ratangarh, in the State of Rajasthan and currently residing at Sardar Sahar, District Churu of Rajasthan had left India after partition of the country and acquired the citizenship of Pakistan. With the passport obtained from Pakistan as a Pakistani citizen and visa obtained from the Indian High Commissioner, the appellants entered Indian territory via Atari Check Post, Border of Punjab on 12th February 1955. Upon registering with the District Superintendent of Police, Churu on 14th February 1955 the appellants stayed in India till 7th May and reported about their departure with the same authority on the same day. However, the appellants had not left India, but remained in the country illegally until they decided to file a Civil Writ Petition to determine their citizenship when encountered with the fear of getting arrested.
4. LEGAL ISSUES RAISED

• Whether the order made by the Government of India, dated 21st July, 1995 determining the national status of the petitioners under Section 9 (2) of the Citizenship Act, 1955 pertains to be valid?
• Whether the appellants are liable to be deported to Pakistan as illegal immigrants?

1. PETITIONER/ APPELLANT’S ARGUMENTS

• The counsels for Petitioner / Appellant submitted that:

The appellants were born to Indian parents, both their siblings and children are Indians and are living in the country. They are senior citizens and shall not be deported to Pakistan as they require the support of their children in their old age. The authorities made a mistake in the determination of their citizenship as the mere existence of the fact that they have a passport from Pakistan could not be a ground to reject the citizenship they acquired naturally from India.

1. RESPONDENT’S ARGUMENTS
   • The counsels for Respondent submitted that:

The fact the appellants had migrated to Pakistan after the partition and their obtainment of Passports from the Govt. of Pakistan raises a presumption against their status as citizens of India. The appellants also made a declaration of being Pakistan citizens to obtain visas from the Indian High Commissioner. On the expiry of the visa period they could have either returned to Pakistan or applied for an extension of the visa. But they allegedly remained in the country and lived underground which amounted to liability of getting deported to Pakistan. A passport obtained by a person from a foreign country is relevant evidence in the determination of that person’s citizenship. Hence the presumption of the appellants to be citizens of Pakistan stands to be valid.

1. RELATED LEGAL PROVISIONS
   • Section 9 (2) of the Citizenship Act, 1955
   • Rule 3 of Schedule III of the Citizenship Rules, 1956
2. JUDGEMENT
   1. RATIO DECIDENDI

Sub-section (2) of Section 9 of the Citizenship Act 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. Rule 3 of Schedule III of the Citizenship Rules, 1956 (for short ‘the Rules’) provides:

“3. The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date.” The Indian Govt. relied upon this rule to determine the citizenship of the appellants.

The court also cited the judgement from Izhar Ahmad Khan & Ors. Vs. Union of India & Ors[2]., wherein this court had considered the validity of Rule 3 of Schedule III of the Citizenship Rules and an order passed under Section 9 (2) of the Citizenship Act to determine the citizenship of one who had obtained a passport from Pakistan. Relying upon its decision the court observed that to evaluate the practical aspect of the Rule one needs to look into the procedures followed in obtaining a passport from the Pakistan Govt. for travel into another country. As per the laws that existed in Pakistan, one could not apply for a passport unless he is a citizen under its Citizenship Act. The application form also requires that the applicant should make a declaration that he is a citizen of Pakistan and the declaration has to be verified by the Pakistan Officials before the passport being issued. Under these circumstances if a passport is issued by the Pakistani Govt. the citizen would be estopped from claiming against the citizenship of Pakistan. if the impugned rule prescribes that the obtainment of a passport from the Pakistani Govt. by an Indian national conclusively proves the voluntary acquisition of Pakistani citizenship , it would be difficult to consider that the rule is ‘not a rule of evidence’.

The Central Govt. in its order declared that the appellants failed to produce relevant materials as evidence to show that they had obtained the citizenship under compulsion. This would raise a presumption that they had obtained the Pakistan citizenship voluntarily.

The appellants failed to adduce any documents in support of their claim and the court pointed out that if the appellants had an intention of returning to Pakistan on expiry of their visa period efforts would have been made way back in the year 1955 to acquire the citizenship of India. The court passed the verdict that they don’t find any infirmity on the order passed by govt. nor the judgement made by the High court.

1. OBITER DICTA
   • Long stay in the country and enrolment in the voters’ list would not confer any right to an alien to continue to stay in the country.
2. CONCLUSION & COMMENTS

The case gives guidance on how to determine the citizenship of people that migrated during the partition period using the rule of evidence. The judgement signifies that citizenship of people should be presumed from their voluntary action to acquire citizenship. Obtaining a foreign passport and using illegal ways to stay in the country could raise presumptions against one’s Indian citizenship. So, one must show the evidence to establish citizenship in the country. If a foreign passport has been acquired by any person, then evidences should be made to establish that it had been acquired under compelling circumstances to attain the rights of natural citizenship in India.

1. REFERENCES
   1. Important Cases Referred
      • Izhar Ahmad Khan & Ors v. Union of India & Ors. (AIR 1962 SC 1052)
   2. Important Statutes Referred
      • Evidence Act, 1872 (Act No. I of 1872)

[1] Indian Citizenship Act, 1955, § 9(1), No. 57, Acts of Parliament, 1955 (India).

[2] Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052