Union of India vs Ghaus Mohammad

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 4 April 1961

Coram: B.P. Sinha, A.K. Sarkar, K.C. Das Gupta, N. Rajgopala Ayyangar, S.K. Das

In this case, the Union of India appealed against a decision of the High Court of Punjab that had allowed the respondent’s petition filed under article 226 of the Constitution. The petition sought a writ that would set aside an order issued on 29 January 1958 by the Chief Commissioner of Delhi under section 3(2)(c) of the Foreigners Act, 1946. The order, which was addressed to Mr Ghaus Mohd and identified him as a Pakistani national, directed him not to remain in India beyond three days from the date on which the notice was served. The notice was served on the respondent on 3 February 1958, and instead of complying with the directive, the respondent approached the High Court on 6 February 1958 requesting that the order be quashed.

The High Court observed that an authority must possess prima facie material before it can issue an order under section 3(2)(c) of the Foreigners Act, 1946. It noted that if such material existed, the resulting order would be valid, and the court would not be entitled to examine whether the person concerned is a foreigner, because the determination of citizenship falls under section 9 of the Citizenship Act, 1955, and is to be made by the Central Government as prescribed by the Citizenship Rules, 1956. After reviewing the material before it, the High Court concluded that no material existed on the basis of which the proper authority could have issued the impugned order. Consequently, the High Court set aside the order.

The Union of India contended that section 9 of the Citizenship Act, 1955, was inapplicable to the present dispute. The Court agreed with this contention, holding that section 9 deals with the termination of citizenship of an Indian citizen under specific circumstances, and neither the Union nor the respondent claimed that the respondent’s citizenship had been terminated for any of those reasons. Therefore, the High Court’s reference to section 9 in reaching its decision was misplaced and had no bearing on the facts of the case. The Court further noted that section 2(a) of the Foreigners Act, 1946, defines a “foreigner” as a person who is not a citizen of India, and that subsection (1) of section 3 of that Act empowers the Central Government to make orders concerning the presence of foreigners in India.

By virtue of sub‑section (2) of section 3 of the Foreigners Act, 1946, the Central Government possessed the explicit authority to issue an order directing that a foreigner should not continue to stay in India. The order that required the respondent to leave the country was issued under this specific provision. The Court observed that there was no dispute that, if the respondent were indeed a foreigner, the order could not be legally challenged; therefore the critical issue to resolve was whether the respondent qualified as a foreigner. The Court examined section 8(1) of the same Act, which deals with a situation where a foreigner’s nationality is either recognised by more than one foreign nation or is uncertain. That subsection empowers the Government to determine the nationality of such a person, and subsection (2) makes any determination under subsection (1) final and not subject to challenge in any court. The Court fully accepted the Union’s contention that section 8 did not apply to the present matter, because the question before the Court was not about the nationality of a person who was already known not to be an Indian citizen, but rather whether the person was a foreigner or an Indian citizen. Consequently, the provisions of section 8 were held to be inapplicable to the facts of this case.

Section 9 of the Foreigners Act was identified as the relevant provision for this dispute. The text of section 9 reads: “If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner… the onus of proving that such person is not a foreigner… shall, notwithstanding anything contained in the Indian Evidence Act, 1872, lie upon such person.” The Court held that this section clearly applied to the present case and that the burden of establishing that the respondent was not a foreigner rested on the respondent himself. The Court found that the High Court had overlooked the provisions of section 9, misdirecting its analysis and incorrectly placing the evidential burden on the Union instead of on the respondent. The Court described this approach as wholly erroneous. Recognising that the determination of the respondent’s status as a foreigner involved substantial factual disputes requiring detailed evidentiary assessment, the Court concluded that a writ petition under article 226 of the Constitution was not the appropriate mechanism for resolution. Rather, the Court suggested that the matter be decided through a civil suit, a course to which neither party expressed serious objection. Accordingly, the Court indicated that the respondent would be at liberty to initiate such a suit if advised, and therefore the Court refrained from addressing the evidentiary record on the respondent’s nationality so as not to prejudice any future proceedings.

In this matter the Court observed that the evidence on the record concerning the respondent’s nationality was to be left untouched so that no prejudice would arise to any suit or other proceeding that might be instituted in the future. The Court then stated that, for the reasons previously set out, the judgment delivered by the High Court could not be sustained. Accordingly the Court held that the High Court’s judgment must be set aside and ordered that it be vacated. The Court recorded that, on behalf of the Union of India, the learned Attorney‑General had conveyed that the Union would not take immediate steps to enforce the deportation order dated 29 January 1958 against the respondent. The Attorney‑General further explained that the postponement of enforcement was intended to permit the respondent, if he so desired, to institute a suit or to commence any other appropriate proceeding that he deems suitable for obtaining a determination of the question whether he is a foreigner. Consequently the sole operative direction issued by the Court was that the order and the judgment of the High Court be set aside. Finally, the Court allowed the appeal. Thus the Court restored the situation to that which existed before the impugned order, leaving the parties to seek resolution through appropriate proceedings.