Akbar Khan Alam Khan and Another vs The Union of India and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 18 of 1961

Decision Date: 5 April 1961

Coram: A.K. Sarkar, Bhuvneshwar P. Sinha, S.K. Das, K.C. Das Gupta, N. Rajagopala Ayyangar

In the matter titled Akbar Khan, Alam Khan and Another versus the Union of India and Others, a decision was rendered on the fifth day of April, 1961 by the Supreme Court of India. The opinion was authored by Justice A K Sarkar, and the bench comprised Justices A K Sarkar, Bhuvneshwar P Sinha, S K Das, K C Das Gupta and N Rajagopala Ayyangar.

The petitioners in this case were Akbar Khan, Alam Khan and another individual, while the respondents consisted of the Union of India together with several other parties. The judgment was delivered on 5 April 1961 and the bench configuration was recorded as Sarkar, A K; Sinha, Bhuvneshwar P (Chief Justice); Das, S K; Gupta, K C Das; and Ayyangar, N Rajagopala. The case is reported in the 1962 volume of the All India Reporter at page 70 and in the 1962 Supreme Court Reporter (First) at page 779. Subsequent citations include 1969 SC 1234 (8) and 1974 SC 645 (8). The dispute concerned the Citizenship Act of 1955, specifically a suit for a declaration of rights as Indian citizens and the jurisdiction of civil courts under section 9(2) of that Act.

The headnote of the reported decision explained that the sole question a civil court is barred from deciding under section 9(2) of the Citizenship Act, read together with rule 30 of the Rules made thereunder, is the question of when or how any person acquired the citizenship of another country. Civil courts are not prevented from determining other aspects of a person’s nationality. Consequently, when a suit was instituted seeking a declaration that the appellants were Indian citizens—while the appellants themselves had raised the issue of having acquired foreign citizenship—the lower courts dismissed the suit on the ground that it was entirely barred by section 9(2). The Supreme Court held that the lower courts erred in concluding that the suit was wholly barred. The Court said that the tribunals should have first decided whether the appellants had ever been citizens of India and, if that finding favored the appellants, should have stayed the proceedings until the Central Government determined whether any such citizenship had been renounced; if the finding was adverse, the suit should have been dismissed.

The appeal that came before the Supreme Court was Civil Appeal No 18 of 1961, taken by special leave from the judgment and order dated 23 January 1960 of the Madhya Pradesh High Court at Indore in Second Appeal No 473 of 1959. Counsel for the appellants included Z F Bootwala, E Udayarathanam and S S Shukla. Representing the first respondent, the Union of India, were M C Setalvad, Attorney‑General of India, together with B Sen and T M Sen. Counsel for respondents numbered two and three were H L Khaskalam and N Shroff. The judgment was delivered by Justice Sarkar.

Justice Sarkar began by noting that the appeal raised the question of whether the suit filed by the appellants should have been dismissed on the ground that a civil court lacked jurisdiction to entertain it. The lower courts had held that jurisdiction of a civil court to hear the suit was barred by section 9 of the Citizenship Act, 1955. The appellants had instituted the suit seeking a declaration that they were citizens of India and also sought an injunction restraining the defendants from removing them from the country. The defendants in the suit were the Union of India, the State of Madhya Pradesh and the District Magistrate of Jhabua in Madhya Pradesh.

The respondents were the State of Madhya Pradesh and the District Magistrate of Jhabua, located in Madhya Pradesh. In their plaint, the appellants asserted that they were Indian citizens and that they had never relinquished that status. They explained that at the beginning of 1953 they travelled to Pakistan for a short visit without possessing any passport; however, when they attempted to return to India they were forced to obtain Pakistani passports. According to the appellants, those passports were procured solely as a means to facilitate their return to India and were obtained under compulsion, not by their own free choice. Consequently, they maintained that the acquisition of Pakistani passports did not amount to the acquisition of Pakistani citizenship. The appellants further claimed that they had taken every possible step to have the Pakistani passports cancelled and to secure permission to reside permanently in India, but that all such efforts had proved unsuccessful. They further alleged that the State of Madhya Pradesh had served them with an order dated 11 November 1955 under section 3(2) of the Foreigners Act, 1946, directing them to leave the country. The appellants contended that this order was unlawful and without justification because they were not foreigners.

In the written statement filed by the respondents, it was asserted that the appellants had departed India between March and May 1948 and that they made their first return on a temporary Pakistani passport in the early part of 1955. The respondents added that the permits allowing the appellants to remain in India had been extended periodically, ultimately up to about October 1955, after which the appellants were served with orders directing them to quit India. The respondents further claimed that the appellants were not Indian citizens because they had voluntarily acquired Pakistani citizenship by obtaining passports issued by Pakistan.

The trial court dismissed the suit, holding that it was not maintainable under subsection (2) of section 9 of the Citizenship Act. That subsection reads as follows: “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 30 of the Rules framed under the Citizenship Act provides that such a question shall be determined by the Central Government, which, for that purpose, must apply the rules of evidence specified in Schedule III to the Rules. The Court observed that subsection (2) of section 9 clearly bars the jurisdiction of a civil court to adjudicate the question mentioned therein, because it mandates that the matter be decided by the prescribed authority, thereby excluding any other forum. The only question that a civil court is precluded from deciding under section 9(2) is whether a citizen of India has acquired the citizenship of another country, or the time and manner in which such acquisition occurred.

The Court observed that the provision of section 9(2) of the Citizenship Act did not prevent civil courts from deciding questions about a person’s nationality other than whether the person had acquired the citizenship of another country. The suit filed by the appellants indeed raised the issue of whether they had lost their Indian citizenship by acquiring the citizenship of Pakistan. The appellants themselves asserted in their plaint that they had not voluntarily acquired Pakistani citizenship. On that point, the Court held that the suit was barred by section 9(2). However, the Court noted that the suit also raised additional questions. The respondents contended that the appellants, having migrated to Pakistan in 1948, had never acquired Indian citizenship, a position that could be derived from Article 7 of the Constitution. The Court affirmed that the authority of a civil court to determine that particular question was not restricted by section 9(2). Consequently, the Court concluded that the whole suit should not have been dismissed outright. The lower courts should first have examined whether the appellants had ever been Indian citizens. If the answer were affirmative, then the subsequent question would be whether they had renounced that citizenship and acquired a foreign one, a matter that the civil court could not decide. In that situation, the proper course would have been to stay the suit until the Central Government resolved the question of renunciation and foreign citizenship, and then to dispose of the remaining issues in accordance with the Government’s decision. The Attorney‑General, appearing for the respondents, accepted this position and did not argue that any other barrier existed apart from that created by section 9 of the Citizenship Act.

The Court then addressed several arguments advanced by counsel for the appellants. The first argument asserted that only when a statutory right is created and a specific tribunal is established to determine that right does the jurisdiction of a civil court to decide the question disappear, and therefore the civil court retained jurisdiction over the appellants’ suit. The Court rejected this contention, holding that a competent legislature may also remove the jurisdiction of civil courts to consider other questions, and no authority was cited to show that such removal is impermissible. A second argument claimed that the appellants had no statutory right to approach the Central Government to resolve the question of loss of Indian citizenship, and thus they retained the right to seek a civil‑court determination of that issue. The Court noted that the Attorney‑General had conceded the appellants’ entitlement to apply to the Central Government for a decision on that question. Accordingly, the Court found no need to explore that argument further. By rejecting the appellants’ contentions, the Court clarified the appropriate procedural steps and affirmed that the suit should proceed on all issues except the one concerning whether the appellants, having been Indian citizens at some time, subsequently renounced that citizenship and acquired foreign citizenship.

In this case, the Court noted that the question could not be said to be barred. The respondents’ counsel relied on the decision in Sharafat Ali Khan v. State of U.P. (1) to support that contention. That issue did not actually arise because the Attorney General appearing for the respondents conceded that the appellants were entitled to approach the Central Government for a decision on the matter. Even ignoring this concession, the view expressed in Sharafat Ali Khan v. State of U.P. (1) appeared to be seriously doubtful. Nevertheless, the Court stated that it was not required to elaborate further on that point in the present circumstances. Accordingly, for the reasons previously explained, the Court set aside the orders and judgments of the lower courts and directed that the suit be heard and decided on every issue raised, except for the question of whether the appellants, having been Indian citizens for some time, had subsequently renounced that citizenship and acquired a foreign citizenship. If the trial court finds that the appellants were never Indian citizens, the suit will be dismissed. Conversely, if the court finds that they were Indian citizens at an earlier date, the further hearing of the suit will be stayed until the Central Government determines whether they subsequently acquired a foreign nationality, as reported in (1) A.I.R. i96o All. 637. After the Central Government’s decision, the trial court will dispose of the suit in accordance with whatever order the government’s decision justifies. The Court ordered that no costs be awarded. The appeal was allowed and the case was remitted to the trial court.