Government of Andhra Pradesh vs Syed Mohd. Khan

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

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 258-279 of 1961

Decision Date: 17 April 1962

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha, K.N. Wanchoo, N. Rajagopala Ayyangar

The case titled Government of Andhra Pradesh versus Syed Mohd. Khan was decided by the Supreme Court of India on 17 April 1962. The judgment was authored by Justice P B Gajendragadkar, who was joined by Justices Bhuvneshwar P Sinha, K N Wanchoo, and N Rajagopala Ayyangar on the bench. The official citation of the decision appears as 1962 AIR 1778 and also as 1962 SCR Supl. (3) 288, with subsequent authorities referencing the case in various reports such as 1965 SC 810, 1965 SC 1623, 1969 SC 1234, 1971 SC 1382, 1974 SC 28, and 1986 SC 1534. The matter concerned the application of the Citizenship Act, 1955 (57 of 1955), particularly section 9(2), and the Citizenship Rules, 1956, Schedule III, rule 3, in determining whether an individual who possessed a foreign passport had automatically ceased to be a citizen of India.

The Government of Andhra Pradesh issued an order directing the respondents, who had entered India holding a Pakistan passport, to leave the country by a specified deadline. In response, the respondents filed writ petitions before the High Court of Andhra Pradesh challenging the order. The single judge hearing the petitions concluded, relying on section 9 read together with rule 3 of Schedule III of the Citizenship Rules, that the mere possession of a Pakistan passport created an automatic statutory cessation of Indian citizenship. The respondents appealed this decision to the Division Bench of the same High Court. The Division Bench affirmed that section 9 was constitutionally valid, but held that rule 3 of Schedule III was beyond the authority of the State and therefore ultra vires. Nonetheless, the Division Bench clarified that its decision did not prevent the Central Government from deciding whether the respondents had acquired foreign citizenship, and it instructed the Central Government to disregard rule 3 of Schedule III, which it considered ultra vires. The Andhra Pradesh Government subsequently obtained a certificate of appeal and approached this Court. The Supreme Court observed that the issues raised in the present appeals had already been settled by its earlier judgment in Izhar Ahmad Khan v. Union of India. The Court emphasized that whenever action is contemplated against persons residing in India on the ground that they have acquired citizenship of a foreign state and consequently lost Indian citizenship, the question must first be examined by the Central Government. In carrying out that examination, the Central Government is entitled to give effect to rule 3 of Schedule III of the Citizenship Rules and to apply the other relevant rules made under the Act.

It was held that the provisions of section 9 of the Citizenship Act do not create an immediate loss of Indian citizenship merely because a person obtains a passport issued by the Government of Pakistan. The Court explained that the question of whether the respondents had acquired Pakistani citizenship must first be examined by the Central Government, which is the authority empowered to determine such status. Only after the Central Government reaches a conclusion that the respondents have indeed obtained Pakistani citizenship may the administrative agencies issue a deportation order against those individuals. The judgment recorded the appellate jurisdiction of the Civil Court for Appeals Nos 258‑279 of 1961, arising from the order dated 4 September 1957 of the Andhra Pradesh High Court in Writ Appeals Nos 46, 66 and 73 of 1957. Counsel for the appellant was instructed by representatives for the government, while counsel for the respondents was instructed by a representative for the respondents in the listed appeals. The judgment was delivered on 17 April 1962 by Justice Gajendragadkar. The twenty‑two appeals, each supported by a certificate from the Andhra High Court, contested the High Court’s view that rule 3 of Schedule III of the Citizenship Rules 1956 was beyond the powers of the government. All twenty‑two respondents had filed separate writ petitions in the Andhra High Court challenging the validity of deportation notices issued by the Government of Andhra Pradesh, which required each respondent to leave India by a date specified in the notices. The factual backdrop revealed that each respondent had entered India holding a passport issued by the Government of Pakistan. The appellant argued that the respondents’ act of applying for and receiving a Pakistani passport demonstrated a voluntary acquisition of Pakistani citizenship and consequently a loss of Indian citizenship, thereby justifying the deportation notices. The respondents, in contrast, maintained that section 9 of the Citizenship Act of 1955 (Act 57 of 1955) together with rule 3 of Schedule III of the Citizenship Rules were beyond the authority of the government, and asserted that they had not acquired Pakistani citizenship and remained Indian citizens.

The writ petitions were heard by Justice Bhimasankaran. He held that both the statutory provision and the rule were within the legislative competence and, reading section 9 together with rule 3 of Schedule III, concluded that the mere fact of a person possessing a passport issued by the Government of Pakistan triggered an automatic statutory cessation of Indian citizenship. Accordingly, Justice Bhimasankaran upheld the validity of the deportation orders issued by the Government of Andhra Pradesh against the respondents and dismissed all the writ petitions. The Court further clarified that, notwithstanding this interpretation, the ultimate determination of citizenship status must be made by the Central Government before any deportation order can be lawfully executed, emphasizing that the Central Government’s decision is a prerequisite for enforcing such orders.

The respondents challenged the earlier judgment by filing twenty‑two separate appeals before a Division Bench of the Andhra High Court. That Bench examined the merits of the appeals and affirmed that section 9 of the Citizenship Act remained within constitutional limits, describing it as intra vires. However, the Bench concluded that rule 3 of Schedule III of the Citizenship Rules exceeded the authority granted to the Central Government by section 9(1) and therefore was ultra vires. In the view of the High Court, the rule also conflicted with article 19 of the Constitution. Because of these findings, the High Court held that the deportation orders issued by the appellant against the respondents could not stand. Consequently, the appeals filed by the respondents were allowed, and the Court issued a writ of mandamus directing the appellant to refrain from executing the deportation orders. The Court of Appeal further observed that, under the Citizenship Act and its accompanying Rules, the Central Government functions as a Special Tribunal tasked with determining whether an individual has acquired the citizenship of a foreign country. Accordingly, before any deportation order could be issued, the appellant was required to obtain a decision from the Central Government on the respondents’ citizenship status. The High Court clarified that its decision in these appeals would not prevent the Central Government from later deciding whether the respondents had voluntarily acquired foreign citizenship under section 9(1), but it instructed the Central Government to disregard rule 3 of Schedule III, which the High Court regarded as ultra vires.

The appellant brought the present matter before this Court, contesting the Division Bench’s declaration that the rule was invalid. The validity of section 9 of the Citizenship Act and rule 3 of Schedule III had recently been examined by this Court in petitions numbered 101 and 136 of 1959 and 88 of 1961, where it held that both section 9(2) and rule 3 of Schedule III are intra vires. Accordingly, the point raised by the appellant in the present appeals is resolved in his favour by that earlier decision, a position not contested by the respondents. This raises the question of the appropriate order to be made in the current appeals. Counsel for the appellant argued, relying on the decision in the case of Izhar Ahmad Khan, that once a person obtains a passport from a foreign government, his Indian citizenship automatically terminates, and therefore the Central Government need not conduct any inquiry or make a finding before the appellant may issue a deportation order. In our opinion, this contention is clearly misplaced.

In this case, the Court observed that the contention put forward by counsel for the appellant was clearly misconceived. While addressing the question of whether the impugned statutory provision and the accompanying rule were valid, the Court acknowledged that it had previously stated that “the proof of the fact that a passport from a foreign country has been obtained on a certain date conclusively determines the other fact that before that date he has voluntarily acquired the citizenship of that country.” However, the Court emphasized that the effect of this observation must be understood in the context of the specific factual situation before it. In all the matters that the Court was then considering, the issue of the petitioners’ citizenship had been expressly referred to the Central Government, and the Central Government had subsequently made its own findings on that issue. Only after the Central Government had recorded a finding that the petitioners had acquired the citizenship of Pakistan did those writ petitions come before the Court for final disposal. It was against this factual backdrop that the Court examined the argument concerning the validity of the impugned section and rule. Consequently, the Court held that the observations relied upon by counsel for the appellant were not intended to convey that a mere allegation of possession of a foreign passport allows a State Government to instantly order deportation without a requisite enquiry by the Central Government. The judgment further stressed that the determination of whether an individual has lost Indian citizenship and has acquired the citizenship of another country must be made by the Central Government, and only after that authority has reached a decision may a State Government treat the person as a foreign national. The Court acknowledged that if a citizen obtains a passport from a foreign government and the case falls within the scope of the impugned rule, it may follow logically that the person has acquired foreign citizenship; however, such a conclusion can be drawn only by the authority authorized under the Act to conduct the enquiry. Therefore, the Court concluded without doubt that in every instance where action is contemplated against a person residing in India on the ground that he has acquired foreign citizenship and consequently lost Indian citizenship, the question must first be considered by the Central Government. In exercising that function, the Central Government would be entitled to apply the impugned rule 3 of Schedule III and to proceed in accordance with the other relevant rules made under the Act. The decision of the Central Government regarding the individual’s status constitutes the foundation upon which any further action, including deportation, may be taken. Accordingly, the Court found no merit in the argument that deportation orders issued by the appellant could be sustained without a prior enquiry by the Central Government.

In this case, the Court held that the appeal filed by the appellant against the respondents ought to be sustained even though the Central Government had not yet undertaken an enquiry into the citizenship status of the respondents. Accordingly, the Court expressed that, in substance, the direction issued by the High Court was correct, although it recognized that the High Court had erred by stating that the Central Government should conduct the enquiry without reference to rule 3. As a result, the Court concluded that the appeals succeeded on the principal point of law and that the High Court’s decision declaring the impugned rule 3 in Schedule I to be invalid was set aside. The Court, however, could not accept the trial judge’s view that the respondents’ citizenship ceased automatically by operation of section 9. The Court affirmed that the question concerning the respondents’ status must be examined by the Central Government, and only after the Central Government reaches a definitive conclusion that the respondents have acquired the citizenship of Pakistan may the appellant lawfully issue orders of deportation against them. On the basis of this reasoning, the Court confirmed the writs issued by the High Court which restrained the appellant from giving effect to the contested deportation orders until the Central Government determines the respondents’ citizenship status. The Court further ordered that no costs be awarded to either party and that the appeals be allowed.