Izhar Ahmad Khan vs Union Of India

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 16 February 1962

Coram: P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta, N. Rajagopala Ayyangar

In the matter of Izhar Ahmad Khan versus Union of India, the Supreme Court rendered its judgment on 16 February 1962. The decision was authored by Justice P B Gajendragadkar and was delivered by a bench comprising Justices P B Gajendragadkar, A K Sarkar, K N Wanchoo, K C Das Gupta, and N Rajagopala Ayyangar. The case was cited as 1962 AIR 1052 and 1962 SCR Supl. (3) 235, and it appeared in several subsequent law reports. The petitioners, claiming to be Indian citizens, sought to enforce their fundamental right under Article 19(1)(e) of the Constitution, which guarantees the freedom to move and reside anywhere in the territory of India. The central question before the Court was whether the petitioners were indeed citizens of India at the time the petition was filed.

While the petitions were pending, the Government of India, relying on Section 9(2) of the Citizenship Act 1955, determined that the petitioners had voluntarily acquired the citizenship of Pakistan. That determination was based on the application of Rule 3 of Schedule III of the Citizenship Rules 1956, a rule that had been framed by the Central Government under the authority conferred by Section 18 of the Act. Section 9(1) of the Citizenship Act declared that any Indian citizen who voluntarily acquired the citizenship of another country between 26 January 1950 and the commencement of the Act would cease to be a citizen of India. Section 9(2) further provided that any question concerning the acquisition of foreign citizenship should be decided by an authority designated in the Act, following the rules of evidence prescribed in the Rules. Rule 30 of those Rules made the Central Government the appropriate authority for such a determination and required it to give due regard to the evidentiary rules set out in Schedule III. Rule 3 of that Schedule stated that the fact of obtaining a passport from any foreign government constituted conclusive proof that the person had voluntarily acquired the citizenship of that foreign country before the date of issue of the passport. After the Central Government issued its determination, the petitioners challenged both the constitutional validity of Section 9(2) of the Citizenship Act and the legal force of Rule 3 of Schedule III of the Citizenship Rules. Their argument contended that Rule 3 was not merely a rule of evidence but a substantive rule, beyond the scope of the delegated power under Section 9(2) and the general rule‑making authority of Section 18. They further asserted that Section 9(2) itself was ultra vires because it affected the status of citizenship and infringed upon their fundamental right guaranteed by Article 19(1)(e). The Court proceeded to examine these contentions in detail.

In this case the petitioners contended that Rule 3 of Schedule III of the Citizenship Rules 1956 should be regarded as a rule of substantive law rather than a rule of evidence, and consequently that it lay outside the scope of the delegated authority conferred by section 9(2) of the Citizenship Act as well as beyond the general‑rule‑making power under section 18 of the Act. They further argued that section 9(2) itself was ultra vires because it affected the status of citizenship and thereby deprived them of the fundamental right guaranteed by article 19(1)(e) of the Constitution.

The Court, speaking through Justices Gajendragadkar, Wanchoo and Ayyangar, rejected these contentions. It held that it was incorrect to describe Rule 3, which compelled the authority to infer acquisition of foreign citizenship from the fact that a person had obtained a foreign passport, as a rule of substantive law. The Court explained that such a rule functions in the same manner as a rule of rebuttable presumption, which is undeniably a rule of evidence, and similarly to an irrebuttable presumption whose purpose is to aid the judicial mind in ascertaining the existence of a fact. The distinction, the Court noted, is that a rebuttable presumption may be contested, whereas an irrebuttable presumption is placed beyond rebuttal, but both remain within the domain of evidentiary law. Reference was made to D. B. Heiner v. John H. Donnan (1932) 76 Law Ed. 772 to illustrate this point.

The Court further observed that the possible harshness or injustice that might arise from applying an irrebuttable presumption is not a relevant consideration when assessing its constitutional validity. The proper test, according to the Court, is whether the fact from which the presumption is drawn is inherently relevant to the issue at hand; if it is, the rule qualifies as a rule of evidence regardless of whether the presumption is rebuttable or irrebuttable. In the present context, a passport obtained from Pakistan was clearly relevant to deciding whether the petitioner had voluntarily acquired Pakistani citizenship, and any argument to the contrary would be erroneous. The Court cited B. v. Brailsford (1905) 2 K. B. 730 and Joyce Case (11946) A. C. 347 as authorities supporting this view, while noting that the cases Domingo Urtellí‑v. John N. Darcy, Henry Didier and Domingo D’Arble (1835) 9 Law Ed. 690 and In re Cohn (1945) Ch. D. 5 were inapplicable.

The Court pointed out that under Pakistani law only a citizen of Pakistan could apply for and be issued a Pakistani passport. Consequently, the impugned rule could not be characterised as a rule of substantive law; it fell squarely within the ambit of section 9(2) of the Citizenship Act and its validity was not open to challenge. The expression “rules of evidence” in section 9(2) must be interpreted in light of its legislative history. Since the enactment of the Evidence Act, a conclusive presumption has been recognised as part of the law of evidence. The Court affirmed that the scope of legislative power on any subject is determined by the ordinary meaning of that subject as understood in legislative practice, citing Croft v. Dunphy (1933) A. C. 156 and the Central Provinces and Berar Act No. XIV of 1938 (1939) F. C. R. 18 as illustrative authorities.

Dunphy, 1933 A.C. 156 and The Central Provinces and Berar Act, No. XIV of 1938, (1939) F.C.R. 18 were cited. The Court observed that the status of citizenship was not a fundamental right under the Constitution. Accordingly, Parliament possessed a clear authority under Article II of the Constitution to regulate the right of citizenship through legislation. The petitioners’ challenge to section 9(2) of the Citizenship Act, on the ground that the rule‑making power under that provision enabled the authority to deprive them of citizenship, could not be sustained. The Court examined the scheme of the Act and the principles it set out and found that, by enacting section 9(2), the Legislature had not abdicated its essential legislative function in favour of the rule‑making authority. Consequently, there was no doubt that the provision was valid.

Per Sarkar and Das Gupta, JJ, the determination of whether a particular rule was a rule of substantive law or a rule of evidence depended on the purpose it served. The Court asked whether the rule created, extinguished or modified a right or liability, or whether its sole concern was the ancillary function of reaching a conclusion about what had occurred under the substantive law. If the rule created, altered or removed a right or liability, it was a rule of substantive law; otherwise, it was a rule of evidence. The Court further explained that if a rule, purporting to be one of evidence, in effect dictated what the right or liability must be upon the occurrence of a particular fact, it went beyond the scope of the law of evidence and intruded into the domain of substantive law. A rule of conclusive presumption designed to affect a specified substantive right was therefore a rule of substantive law and did not cease to be so merely because it rested on a fact relevant to that right. The test, the Court held, was not one of relevancy but whether the rule was intended to affect a specified substantive right or merely to provide a method of proof. Applying this test, the Court observed that when obtaining a passport from another country was treated as conclusive proof of voluntarily acquiring the citizenship of that country, the substantive right of citizenship was directly affected; hence the rule could not be characterised as a rule of evidence but had to be regarded as a rule of substantive law. The Court noted that it might happen that a person voluntarily acquires a foreign passport without necessarily acquiring that country’s citizenship. In support, the Court referred to Mohd. Khan v. Government of Andhra Pradesh, A.I.R. 1957 And. Pra. 1047 and Sharafat Ali Khan v. State of U.P., A.I.R. 1960 All 637, approved; Mohomed Usman v. State of Madras, A.I.R. 1961 Mad 129 and Ghaural Hasan v. State of Rajasthan, A.I.R. 1958 Raj. 173, disapproved. Finally, the Court held that in view of Article XI of the Constitution it was incorrect to describe the right of citizenship as a fundamental right or to portray the power conferred by section 9(2) of the Act as unguided. The sub‑section, the Court concluded, provided sufficient guidance to the General Government to frame rules of evidence, and the question of whether the petitioners had acquired foreign nationality must therefore be determined by the Government, leaving rule 3 of Schedule III of the Citizenship Rules, 1956, aside.

Foreign nationality, according to the Court, must be determined by the Government while ignoring rule 3 of Schedule III of the Citizenship Rules, 1956. The matter before the Court is presented as an original jurisdiction case involving Petitions Nos. 101 and 136 of 1959 and Petition 88 of 1961. All three petitions were filed under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. The judgment on the issues raised by Justices Gajendragadkar, Wanchoo and Ayyangar was delivered by Justice Gajendragadkar, while the judgment on other aspects raised by Justices Sarkar and Das Gupta was delivered by Justice Das Gupta. The three writ petitions were brought by three separate petitioners, each invoking their fundamental right under Article 19(1)(e) of the Constitution. Although the petitions were heard separately, the Court found it appropriate to decide them together because they posed the same constitutional questions. Each petition challenges the constitutional validity of section 9(2) of the Citizenship Act, 1955 (Act LVII of 1955, hereinafter called “the Act”) and also challenges rule 3 contained in Schedule III of the Citizenship Rules, 1956.

For convenience, the Court outlines the essential facts that underlie the three petitions. The first petitioner, Izhar Ahmad Khan, is the petitioner in Writ Petition No. 101 of 1959. He asserts that he is a citizen of India and that he was residing in Bhopal. He was enrolled as a voter on both the Parliamentary and State Legislative Assembly electoral rolls. On 20 August 1952, police officers seized him from the restaurant he operated in Bhopal and informed him that he was being arrested under an order issued by the then Bhopal Government pursuant to section 7 of the Influx from Pakistan (Central) Act. The very next day he was placed on a train, taken to the Pakistan border and ordered to go to Pakistan despite his protests. Following this, his elder brother, Iqbal Ahmad, filed a writ of habeas corpus before the Court of the Judicial Commissioner, Bhopal, invoking Article 226 of the Constitution. In February 1953, the Judicial Commissioner delivered his judgment on the writ. The Commissioner held in favour of the petitioner, finding that he was born in India and therefore a citizen of India. The Commissioner also decided in the petitioner’s favour on the issue of migration. However, the Commissioner observed that the petitioner had been in Pakistan during May and June 1952 and concluded that, because he had violated the provisions of section 3 of the Influx from Pakistan (Central) Act, he was liable to be physically removed from India under section 7 of that Act. The Commissioner’s observations therefore formed part of the factual background considered by this Court.

After arriving back in India on 13 August 1953, the petitioner promptly applied to the Government for permission to remain in the country on a permanent basis. His visa for residence was consequently extended repeatedly, each extension pending the ultimate decision on his request for a permanent stay. On 15 February 1954, this Court declared section 7 of the Influx from Pakistan (Central) Act to be void. In view of that declaration, the petitioner intensified his efforts to obtain permanent settlement, and the Government subsequently granted him a long‑term visa while his application was being considered. In 1955 the Influx Act was re‑enacted, and, acting on legal advice, the petitioner filed an application for registration as a citizen of India. That application was refused, and his parallel request for permission to remain in India permanently was also denied. Following those rejections, the District Superintendent of Police in Bhopal issued an order dated 16 June 1959 directing the petitioner to leave India within seven days. The order was issued under section 3(2)(p) of the Foreigners Act, 1946 (No. XXXI of 1946). In response to that order, the petitioner filed the present writ petition before this Court on 13 August 1959, asserting that he did not fall within the definition of “foreigner” under the Foreigners Act and challenging the validity of the operative provisions of that Act.

After notice was served on the Union of India, the State of Madhya Pradesh and the District Superintendent of Police, Bhopal—who were impleaded as respondents 1, 2 and 3—the matter was listed for hearing before this Court on 22 January 1960. After hearing the counsel for the parties, the Court delivered an interlocutory judgment. In that judgment the Court observed that the decisive issue to be resolved in the writ petition was whether the petitioner was a citizen of India. The Court stated that such a determination could be made only under section 9(2) of the Foreigners Act and, accordingly, an enquiry should be conducted by a competent authority. The Court directed that the result of that enquiry be communicated to it as soon as possible, after which the petition would be listed for a final hearing. Meanwhile, the Court ordered that the stay of deportation granted to the petitioner should continue.

Pursuant to that interlocutory order, an enquiry under section 9(2) was instituted after the petitioner was served notice of the enquiry. On 11 September 1961 the Central Government recorded its conclusion that the petitioner had voluntarily acquired Pakistani citizenship sometime after 26 January 1950 and before 29 July 1953. That conclusion was reached substantially on the basis of the impugned order numbered 3. Once the enquiry was completed and its result was communicated to this Court, the petitioner sought permission to raise additional grounds of defence, and he indicated the specific grounds he wished to raise.

The judgment identified two questions that had already been indicated. In brief, the background of the facts relevant to Petition No 101 of 1959 concerned Syed Abrarul Hassan, the petitioner in Petition No 136 of 1959, who asserted that he was a citizen of India and a resident of Bhopal. In 1951 his family received news from Pakistan that his elder brother, Syed Hassan, was seriously ill. Consequently, the petitioner travelled to Pakistan together with his mother, his younger sisters and one younger brother. He remained in Pakistan for several years before attempting to return to India. To facilitate his return, he applied for a Pakistani passport, obtained it, and entered India in May 1954. After his arrival, he applied to the Government of India for permission to settle permanently in India; while that application was pending, he was granted long‑term visas. In 1959 the District Superintendent of Police, Bhopal, served an order directing him to leave India by 22 August 1959 under section 3(2)(c) of the Foreigners Act. Like Petition No 101 of 1959, this petition was originally filed to contest the validity of that order and to challenge the applicability of the relevant provisions of the Foreigners Act on the ground that the petitioner was not a foreigner and therefore the provisions could not be invoked against him. Subsequently, both petitions were heard together on 22 January 1960, and the course of events in this petition mirrored those in the earlier petition. After an enquiry conducted under section 9(2) of the Citizenship Act, the petitioner was informed that the Central Government had concluded that he had voluntarily acquired Pakistani citizenship after 26 January 1950 and before 20 November 1952. Following that conclusion, he applied for leave to raise additional grounds, including the two grounds previously referred to. Accordingly, the material facts in the two petitions were substantially similar.

Another petitioner, Habib Hidayatullah, filed Petition No 88 of 1961, claiming Indian citizenship and asserting that his fundamental rights under article 19 of the Constitution were being infringed because he faced deportation on the premise that he had acquired Pakistani citizenship. According to his statement, he departed Bombay for Basra in Iraq in April 1950 and remained there for three years in connection with business. He later accompanied his brother to Karachi in May 1963 for medical treatment. Upon arrival in Karachi, the Pakistani authorities confiscated his Indian travel documents. He sought assistance from the Indian High Commission to return to India but was unsuccessful; consequently, he applied for and obtained a Pakistani passport on 14 December 1957. He maintained that the passport was obtained with the intention of using it to return to India.

After obtaining a Pakistani passport, the petitioner travelled back to India and submitted several representations to Indian authorities requesting that he be recognised as an Indian citizen and seeking registration in that capacity. Those attempts were unsuccessful, leaving him exposed to the possibility of deportation from India. Consequently, on 20 February 1961 he filed the present petition, asking the Union of India and the State of Maharashtra to be restrained from taking any steps that would result in his removal from the country. The Court admitted the petition and, in its order, indicated that the petitioner could either move the Government pursuant to section 9(2) of the Citizenship Act or invite the Government to act on its own initiative in the matter. Following the admission of the petition, the respondents entered their appearance and opposed the grant of a stay, arguing that the petitioner had ceased to be an Indian citizen. The Government of India then exercised its powers under section 9(2) of the Act and concluded that the petitioner had voluntarily acquired Pakistani citizenship sometime after 26 January 1950 but before 14 December 1957. After this determination was communicated to the petitioner, he raised additional grounds, including the two points that had been previously mentioned. In this factual backdrop, the three petitioners contested their possible deportation on the ground that section 9(2) of the Citizenship Act was beyond the authority of the legislature (ultra vires) and that Rule 3 of Schedule III of the Citizenship Rules, 1956, was likewise unconstitutional. Before addressing the specific contentions raised in the three petitions, the Court found it necessary to outline briefly the relevant constitutional and statutory provisions. Part II of the Constitution, comprising Articles 5 to 8, deals with citizenship. Article 5 states that every person falling within clauses (a), (b) and (e) is a citizen of India. Article 6 provides that, notwithstanding anything contained in Article 5, a person who migrated to Indian territory from the area that became Pakistan shall be deemed an Indian citizen at the commencement of the Constitution if he satisfies the conditions prescribed in clauses (a) and (b). Article 7 declares that a person who, after 1 March 1947, migrated from India to the area that became Pakistan shall not be deemed an Indian citizen, notwithstanding the provisions of Articles 5 and 6; the proviso to this article is not required to be set out. Article 8 concerns the citizenship rights of a person whose parent or grandparent was born in India as defined in the Government of India Act, 1935, and who ordinarily resides in any country outside India as so defined. The next three articles—Articles 9, 10 and 11—are also pertinent, but the excerpt ends before their discussion.

Article 9 stated that no person could become a citizen of India by virtue of Article 5, nor be deemed a citizen under Article 6 or Article 8, if that person had voluntarily acquired the citizenship of any foreign state. In other words, if before the Constitution came into force a person had voluntarily taken the citizenship of another country, that person could not claim Indian citizenship under Articles 5, 6, or 8. The provision therefore dealt with situations in which an Indian citizen had obtained foreign citizenship before the Constitution commenced.

Article 10 guaranteed the continuation of citizenship rights. It provided that every person who was, or was deemed to be, a citizen of India under any of the preceding provisions of Part II would continue to be such a citizen. However, this guarantee was subject to the condition that the continuance of citizenship could be governed by any law that Parliament might enact. The proviso in Article 10 thus made clear that Parliament could, by legislation, affect the continuation of citizenship rights in accordance with the terms of such law.

Article 11 gave Parliament the power to regulate the right of citizenship by law. It declared that nothing in the earlier provisions of Part II would diminish Parliament’s authority to make any provision concerning the acquisition and termination of citizenship, as well as all other matters relating to citizenship. Consequently, while Articles 5 to 8 defined the basis on which individuals could acquire citizenship and Article 9 excluded those who had voluntarily taken foreign citizenship, Article 10 assured the continuance of citizenship subject to parliamentary law, and Article 11 expressly empowered Parliament to legislate on both acquiring and terminating citizenship. This structure meant that Parliament could enact statutes affecting citizenship rights, and such statutes could not be challenged on the ground that they conflicted with Articles 5 to 10. The inclusion of Article 11 in Part II was intended to clarify that the sovereign legislative competence of Parliament over citizenship, which fell under Entry 17 of List I in the Seventh Schedule, was wide and not limited by the other provisions of Part II.

In this matter, the relevance of the Parliament’s power to legislate on citizenship was examined in order to address the petitioners’ claim that their rights under Article 19 were impaired by the challenged provisions of section 9(2) of the Citizenship Act. The Parliament exercised the authority granted to it by Entry 17 of the Union List and, in accordance with Article 11 of Part II of the Constitution, enacted the Citizenship Act, which came into force on 30 December 1955. The preamble of the Act declares that its purpose is to provide for the acquisition and termination of Indian citizenship. The provisions relating to acquisition are contained in sections 3 to 7: section 3 deals with citizenship by birth, section 4 with citizenship by descent, section 5 with citizenship by registration, section 6 with citizenship by naturalisation, and section 7 with citizenship resulting from the incorporation of territory. After setting out the mechanisms for acquiring citizenship, the Act addresses termination of citizenship in sections 8, 9 and 10. Section 8 provides for renunciation of citizenship, section 9 for termination of citizenship, and section 10 for deprivation of citizenship. The Court’s analysis was centred on section 9, which governs termination of citizenship. The text of that section reads: “(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January 1950 and the commencement of this Act voluntarily acquired, the citizenship of another country, shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India: Provided that nothing in this sub‑section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs. (2) 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.”

The Court observed that the effect of the provision is unambiguous. It makes clear that whenever an Indian citizen voluntarily acquires the citizenship of another country, that person’s Indian citizenship terminates, whether the voluntary acquisition occurred between 26 January 1950 and the commencement of the Act or occurs thereafter. The Court contrasted this statutory rule with Article 9 of the Constitution, which deals with the acquisition of foreign citizenship that took place prior to the Constitution’s commencement. Section 9 of the Act, by contrast, regulates the acquisition of foreign citizenship that occurs after the Constitution came into force. Consequently, the Constitution does not endorse the concept of dual or multiple citizenship. Just as Article 9 prevents a person who had voluntarily taken foreign citizenship before the Constitution’s commencement from claiming Indian citizenship, section 9(1) imposes a comparable restriction for acquisitions made after that date. The Court therefore concluded that the Constitution and the statutory scheme consistently reject the possibility of holding Indian citizenship concurrently with citizenship of another country.

Section 9 of the Act states that a person may acquire the citizenship of a foreign country through naturalisation, registration or any other voluntary method. In the same way that Indian citizenship can be obtained by naturalisation or registration, the citizenship of a foreign country may also be acquired by those means. When it is established that an individual has obtained foreign citizenship by naturalisation or registration, there is no uncertainty that his Indian citizenship ceases as a direct result of that foreign naturalisation or registration. These two categories of foreign citizenship therefore present no difficulty. Difficulty could arise only in the third category, where foreign citizenship is obtained by a method other than naturalisation or registration. However, even for that category the position is clear: if it is shown that, by some other procedure, foreign citizenship has been voluntarily acquired, the individual's Indian citizenship terminates immediately. The proviso to sub‑section (1) is not considered because the cases falling within that proviso are not relevant to the present discussion. Sub‑clause (2) of section 9 provides that any question concerning the acquisition of foreign citizenship by an Indian citizen shall be determined by the authority, in the manner, and with reference to the rules of evidence that may be prescribed for that purpose. In other words, if a dispute arises about whether an Indian citizen has voluntarily acquired foreign citizenship, or about the timing or method of such acquisition, the power to decide that question is delegated to the authority prescribed in the rules. Likewise, the rules must prescribe the manner in which the enquiry is to be conducted and the evidentiary standards that will apply. Consequently, this sub‑section requires that regulations be formulated specifying the competent authority, the procedure for hearing such questions, and the applicable rules of evidence. Section 18(1) confirms that the power to make such regulations may be exercised to achieve the objectives of the Act. Sub‑section (2) adds that, without limiting the generality of this power, the rules may address the matters listed in clauses (a) to (k) of that provision. Section 18(3) empowers the Central Government to stipulate that any breach of a rule may be punishable by a fine not exceeding one thousand rupees. Finally, section 18(4) mandates that all rules made under this section be laid before both Houses of Parliament for a period of not less than fourteen days as soon as practicable after their creation, and that Parliament may amend them during that session.

In the judgment, the Court observed that the provision allowing rules to be laid before both Houses of Parliament for a minimum period of fourteen days gave Parliament the opportunity to modify those rules during the session in which they were presented. This mechanism was intended to enable parliamentary oversight over the rules made by the Central Government in the exercise of the delegated authority conferred upon it by the statute. The Court noted that in 1956 the Central Government purported to make Rules under the powers granted by section 18 of the Act. The matter before the Court concerned Rule 30, which dealt specifically with the authority to determine whether a person had acquired the citizenship of another country. Under clause (1) of Rule 30, the Court recorded that if any question arose concerning the acquisition, timing, or manner of a person’s acquisition of foreign citizenship, the authority designated to decide such a question, for the purposes of section 9(2), would be the Central Government. Clause (2) required the Central Government, in determining any such question, to give due regard to the rules of evidence set out in Schedule III. The Court then described the provisions of Schedule III, noting that Rule I empowered the Central Government, upon finding that an Indian citizen had voluntarily acquired the citizenship of another country, to demand proof within a specified time that the citizen had not done so, placing the burden of proof on the individual. Rule II authorized the Central Government to refer any question it needed to decide in the enquiry to the Indian Embassy in the relevant foreign country or to that foreign government, and to act upon any report or information received as a result of such a reference.

The Court further explained that Rule III, the subject of constitutional challenge, stated that the fact that an Indian citizen had obtained a passport from a foreign government on any date constituted conclusive proof that the citizen had voluntarily acquired the citizenship of that foreign country prior to the date of the passport. The Court clarified that the remaining rules of the schedule were not necessary to consider for this purpose. It emphasized that the scope and effect of Rule III were clear: the issuance of a foreign passport created a presumption that the individual had already voluntarily become a citizen of that foreign nation before the passport was obtained. Consequently, the proof of passport acquisition on a particular date conclusively established the prior acquisition of foreign citizenship. The Court identified the two principal questions for determination: first, whether Rule III was constitutionally valid; and second, if it was valid, whether section 9(2), which conferred on the Central Government the power to conduct the enquiry subject to the relevant rules, had been constitutionally delegated to the Central Government. The Court indicated that it would first address the challenge to the validity of Rule III.

In this case the Court examined the challenge to the validity of rule 3. The principal ground of the challenge was that section 9(2) authorises the Central Government to prescribe rules of evidence for the enquiry, whereas the Central Government, in framing rule 3, was alleged to have prescribed a rule of substantive law. The argument advanced was that the term “rules of evidence” in section 9(2) plainly refers to evidential rules, and because the impugned rule in substance is not a rule of evidence but a substantive rule, it lies beyond the scope of the delegated authority under section 9(2) and is consequently invalid. While it is true that section 18(1) gives the Central Government a general power to make rules to carry out the purposes of the Act, the Court observed that this general power does not automatically include the power to create substantive law. Therefore, if rule 3 is indeed a substantive rule and if “rules of evidence” in section 9(2) does not encompass such a rule, the challenge to the rule’s validity must be upheld.

The Court then considered the need to understand the genesis and purpose of the Law of Evidence. The well‑recognised division of law into substantive and procedural categories was highlighted. Substantive law defines rights, duties and liabilities, whereas procedural law governs the application of those substantive rules to individual cases. The Court noted that the law of evidence forms part of procedural law. It explained that evidence law determines which facts may be proved, which evidence may be admitted, who may present it and the manner of presentation. Consistent with these functions, the Indian Evidence Act codifies rules of relevance, excludes certain kinds of evidence such as hearsay or parol evidence, and addresses the onus of proof, competence of witnesses, proof of documentary evidence, presumptions and estoppel. Quoting Best, the Court stated that “Evidence … has been well defined as any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative of the existence of some other matter of fact.” The Court further described judicial evidence as a species of the generic term “evidence,” which, according to Best, is essentially natural evidence, possibly restrained or modified.

In the judgment, the Court explained that the statutory provisions of the Law of Evidence were founded on the principle that a legal system works best when it minimizes judicial discretion. Consequently, the laws of every well‑governed State have created rules that govern both the quality and, at times, the quantity of evidence that must be produced to support a judicial decision. The Court noted that the purpose of these rules is to control how evidence is presented and proved during a judicial inquiry, and that the rules of evidence therefore contain certain presumptions that may be either rebuttable or irrebuttable. The Court defined a “presumption” in its broadest sense as an inference—either affirming or denying the truth of a doubtful fact or proposition—derived by probable reasoning from something that has already been proved or taken as given. According to the authority of Best, when the rules of evidence permit the creation of a rebuttable or irrebuttable presumption, the intention is merely to aid the judicial mind in evaluating the probative or persuasive value of facts that have been proved against other facts that are presumed or inferred. The Court observed that the entire scheme of the Evidence Act is designed to achieve the objective of regulating the proof of facts by subjecting the production of evidence to the rules laid down for that purpose. In light of this function and objective, the Court turned to the petitioners’ argument. The petitioners contended strongly that the impugned rule, which obliges the enquiring authority to infer that a foreign citizenship has been acquired because an Indian citizen has obtained a foreign passport, was not a rule of evidence at all but rather a rule of substantive law concerning the acquisition or termination of citizenship. To support their position, the petitioners cited the opinions of jurists. The Court therefore examined those opinions to determine whether they supported the petitioners’ conclusion. Holdsworth was quoted as observing that difficulties in proving facts required for legal liability under older trial methods, the gradual development of modern trial procedures, persisting challenges even under modern processes, and sometimes the desire to amend an inconvenient law have, at different times, led both legislators and courts to adopt the expedient of creating presumptions of law, which may be rebuttable or irrebuttable. Holdsworth further explained that rebuttable presumptions of law primarily belong to the substantive law branches they affect, yet they are all linked to that part of adjective law concerned with evidence because they direct the court to draw specific inferences from particular facts.

In this discussion, the Court noted that when the contrary is proved, an irrebuttable presumption cannot operate, and it explained that, at present, irrebuttable presumptions of law are more properly classified as part of substantive law rather than as rules of evidence (1). The Court then referred to the observation of Holdsworth, who drew a distinction between estoppel, which he described as a rule of evidence, and the irrebuttable presumption, which he regarded as a rule of substantive law. Holdsworth’s commentary, recorded in “A History of English Law” (Vol. IX, pages 143‑144), explains that while an irrebuttable presumption functions as a substantive rule that obliges a particular inference when certain facts exist, estoppel operates as an evidential rule that prevents any contrary evidence from being received once certain facts have been proved between the parties in litigation. Accordingly, Holdsworth concluded that irrebuttable presumptions always belong to substantive law, whereas rebuttable presumptions do not, and that estoppel remains a rule of evidence and not a rule of substantive law.

The Court further cited Wigmore, who expressed the same view regarding the nature of irrebuttable presumptions. Wigmore stated that whenever one fact is said to be conclusively presumed from another—meaning that the opponent is absolutely precluded from presenting any evidence to disprove the second fact—the rule effectively makes the existence of the second fact immaterial for the proponent’s case. He asserted that such a rule constitutes a rule of substantive law rather than a rule that merely allocates the burden of persuasion or alters the duty to produce evidence (1). The Court observed, however, that there is some doubt about phrasing the rule as rendering the second fact’s existence wholly immaterial. Instead, the Court explained that the rule actually provides that the probative or persuasive value of the proved fact is so great with respect to the unproved fact that the unproved fact should be treated as proved once the first fact is established. In any event, the opinion expressed by Wigmore supports the petitioners’ contentions.

Turning to the view of Phipson, the Court noted that Phipson presented the proposition in a guarded and qualified manner. Referring to the ninth edition of Wigmore on Evidence (page 292, paragraph 2492), Phipson observed that the so‑called conclusive presumptions are, in proper terms, rules belonging to various branches of substantive law and not to the law of evidence. He gave examples such as the presumption that a child under seven years of age is incapable of committing a felony and the presumption that everyone knows the law, i.e., that ignorance of the law is no excuse for criminal conduct. The Court pointed out that Phipson’s observation indicates that it is not an absolute principle that every conclusive presumption falls within substantive law; rather, he illustrated his point with two specific instances to show that those presumptions are indeed matters of substantive law. Consequently, the Court stated that if one accepts the test articulated by Phipson, the question of whether a conclusive presumption in a particular case forms part of substantive law or constitutes a rule of evidence must be decided by examining the content and implications of the rule itself.

If the test set out by Phipson is considered reliable, then the determination of whether a conclusive presumption in a particular case belongs to the substantive law or forms part of the rule of evidence must be made by examining the substance of the rule and the consequences that follow from it. Stephen has also examined this difficulty. He states that “conclusive presumptions appear to me to belong to different branches of the substantive law and to be unintelligible except in connection with them.” He illustrates his point by referring to the presumption that everyone knows the law, explaining that this rule cannot be properly understood if it is treated as part of the law of evidence because it actually belongs to criminal law. In the same manner, he observes that many presumptions concerning property rights, such as those relating to easements and incorporeal hereditaments, are not rules of evidence but belong to the law of real property. After making this observation, Stephen adds that, in his view, only those presumptions which relate to facts merely as facts and which are separate from the particular rights that those facts create should be placed within the law of evidence. To illustrate this, Stephen notes that his digest includes certain presumptions listed in Articles 98 to 105, namely the presumption of legitimacy, the presumption of death after seven years of absence, the presumption of a lost grant, the presumption of regularity, and the presumption concerning deeds to complete title, as well as various forms of estoppel such as estoppel by conduct, estoppel of a tenant or licensee, estoppel of an acceptor of a bill of exchange, and estoppel of a bailee, agent, or licensee. From this, Stephen concludes that the four types of estoppel he mentions constitute a branch of the rule of evidence.

Dicey appears to hold that, even for the purposes of domestic law, irrebuttable presumptions of law should be regarded as rules of substance. He further argues that rebuttable presumptions of law must, for the present discussion, be subdivided. The first subclass comprises those presumptions that apply only in specific contexts, such as presumptions of advancement, satisfaction, and ademption, which are so closely linked to substantive rights that they ought to be classified as rules of substance. The second subclass includes presumptions that, although not always applied in exactly the same manner, are relevant to all categories of cases, for example presumptions of legitimacy, marriage, and death. Dicey remarks that it remains uncertain whether such presumptions are rules of substance or merely rules of procedure. According to Dicey, for the purposes of English domestic law, estoppel is generally treated as a rule of evidence. In addressing this matter, Dicey observes that to decide whether a presumption is a rule of substance or a rule of procedure, one must distinguish among three kinds of presumptions: presumptions of fact, rebuttable presumptions of law, and irrebuttable presumptions of law. With respect to presumptions of fact, Dicey maintains that, strictly speaking, they have no legal effect at all; they are merely common inferences that are applied equally in cases governed by English law as well as foreign law.

It was observed that presumptions of fact possess no legal force; they are simply ordinary inferences that are applied in the same manner to cases decided under English law as well as to those governed by foreign law. This observation was supported by references to the seventh edition of Dicey’s Conflict of Laws, page 1098, and to Thayer’s A Preliminary Treatise on Evidence at the Common Law, page 314. The Court acknowledged that, when considering the nature of the rule that creates an irre‑buttable presumption, the opinions of jurists must be given appropriate weight. However, the Court also noted that the juristic commentary on this subject does not reveal a single, uniform approach; rather, the scholars express varied viewpoints and nuanced conclusions. Accordingly, keeping in mind the juristic perspectives previously mentioned, the Court proceeded to scrutinise the argument that the rule establishing an irre‑buttable presumption, as set out in the impugned provision, forms part of substantive law rather than belonging to the law of evidence. The Court accepted, and rightly so, that a rule that creates a rebuttable presumption is categorised as a rule of evidence. To understand the meaning of such a rule, the Court explained that a fact designated as “A,” which bears relevance to proving another fact “B,” inherently carries a certain degree of probative or persuasive value. Once fact A is proved, a judicial mind may weigh its value before reaching a conclusion on whether fact B is also proved. When the law of evidence provides a rule that, upon proof of fact A, treats fact B as proved unless the contrary is demonstrated, the rule aims to regulate the judicial process of assessing evidence. It directs that the inference drawn from fact A should be that fact B is also proved, unless the presumption is rebutted. In effect, the rule removes the judge’s discretion to decide whether to assign probative weight to fact A and instead requires, on a prima facie basis, that such weight be attached to the inference of fact B, subject to the possibility of rebuttal. As Thayer observed, presumptions serve as aids to reasoning and argumentation; they assume the truth of certain matters for the purpose of a specific inquiry, thereby placing the burden of going forward with argument or evidence on the party against whom the presumption operates. Thayer further explained that legal rebuttable presumptions define the quantity of evidence or the state of facts sufficient to constitute a prima facie case, that is, they indicate the circumstances under which the burden of proof shifts to the opposite party.

The Court explained that a rebuttable presumption is sufficient to establish a prima facie case, meaning that it creates a situation in which the burden of proof shifts to the opposite party. By giving statutory force to the natural and inherent probative value of a fact (referred to as fact A) for proving the existence of another fact (fact B), the rule of rebuttable presumption operates within the scope and function of the law of evidence. The Court questioned whether, in principle, it matters if the same rule adds conclusive strength to the probative value of fact A for establishing fact B. Regarding facts that are covered by an irre‑reb uttable presumption prescribed by a rule of evidence, the Court noted that the inherent probative value of fact A is already very great. When such a fact is proved in a judicial proceeding, the judicial mind would ordinarily give it great importance in relation to proving fact B. The rule then steps in and requires the judicial mind to treat that fact as conclusive in its probative effect. The Court observed that, just as with a rebuttable presumption, an irre‑reb uttable presumption is intended to help the judicial mind appreciate the existence of facts. In one situation the statutory strengthening of probative value remains open to rebuttal; in the other, as cited from Thayer’s “A Preliminary Treatise on Evidence at the Common Law,” page 314, the statutory strengthening is made conclusive and not subject to rebuttal. From this perspective, the Court found it difficult to accept the view that a rebuttable presumption falls within the law of evidence while an irre‑reb uttable presumption lies outside that domain and belongs to substantive law.

In the United States case of D. B. Heiner v. John H. Donnan, the Supreme Court examined the validity of a federal statute that imposed a death‑transfer tax on transfers made at the time of or in contemplation of death. The statute deemed any transfer made within two years before the decedent’s death to have been made in contemplation of death, and the Court held that this provision violated the due‑process clause of the Fifth Amendment. A key issue in that case concerned whether the irre‑reb uttable presumption created by the statute was part of the law of evidence or part of substantive law. Those defending the statute argued that the conclusive presumption it created constituted a rule of substantive law. The Court’s discussion in that case, as referenced, illustrates the broader question of how presumptions—whether rebuttable or irre‑reb uttable—should be classified within the legal framework, and whether the statutory enhancement of a fact’s probative value transforms it from a rule of evidence into a rule of substantive law.

The Court dismissed the submission that the provision under discussion should be characterised as a rule of substantive law, and instead held that it was a rule of evidence which therefore contravened the constitutional protection embodied in the Fifth Amendment. In rejecting the State’s argument that the rule belonged to the domain of substantive law, the Court cited the observations of Mr Justice Sutherland, who noted that a rebuttable presumption is plainly a rule of evidence because it shifts the burden of proof to the party against whom the presumption operates. To support this conclusion, he referred to earlier decisions of the Court that had treated similar presumptions in the same way. He further explained that it is difficult to imagine a statutory rebuttable presumption being transformed into a rule of substantive law merely because a later enactment renders it conclusive. He quoted the earlier judgments, observing that in both instances the presumption acted as a substitute for proof – in one case the presumption remained open to challenge and disproof, while in the other it was conclusive. The learned Judge also clarified that, irrespective of whether a presumption is classified as a rule of evidence or as a rule of substantive law, it represents a legislative attempt to create a factual situation that does not actually exist, and the practical effect is the same unless the Court were prepared to over‑rule the precedent set in Schlesinger. In that case the Court had struck down a conclusive presumption without giving weight to the technical label attached to it. Consequently, the observations of Mr Justice Sutherland regarding the nature of an irrebuttable presumption provided assistance to the position advocated on behalf of the Union of India. However, the argument that a conclusive presumption bars the party against whom it is drawn from disproving the inferred existence of fact B, which is derived from proof of fact A, does not alter the classification of the rule as one that falls within the law of evidence. The Court illustrated this point by referring to the doctrine of estoppel, which is universally recognised as a rule of evidence. Where the essential elements of estoppel are satisfied, a party is precluded from denying the truth of a statement, act or omission that he has made, and the rule consequently prevents him from proving that the matter in question is untrue. Yet, despite the bar that estoppel imposes on the party, the rule itself is still treated as a rule of evidence. Thus, the mere existence of a prohibition on a party’s ability to prove the truth or falsity of an inferred fact does not demonstrate that the rule belongs to substantive law.

In this matter, the Court observed that the contention that the conclusive rule at issue extinguished the status of citizenship and therefore constituted a rule of substantive law was unpersuasive. The Court explained that the rule actually required that when one fact was established, another fact had to be deemed established as well. The established fact was that an Indian citizen had obtained a passport issued by a foreign government on a particular date. From this fact, the Court said, an irrebuttable presumption had to be drawn that the act of obtaining the foreign passport meant that the individual had acquired the citizenship of that foreign state. The Court characterized the situation as one in which the proof of fact A (possession of the foreign passport) compelled an inference regarding the existence of fact B (acquisition of foreign citizenship). The Court noted that it would later discuss the inherent probative and persuasive value of fact A for establishing fact B. The Court dismissed the argument that the rule might, in some hypothetical scenario, cause hardship or injustice, stating that such considerations were irrelevant to the constitutional validity of the rule.

The Court then set out the proper approach for determining whether a rule that creates an irrebuttable presumption is a rule of evidence. It said the approach required examining whether fact A, from which a presumption about fact B was drawn, was inherently relevant to proving fact B and possessed any inherent probative or persuasive value. If fact A was intrinsically relevant to proving fact B and a rational mind would regard it as having probative or persuasive force, then a rule prescribing either a rebuttable or an irrebuttable presumption would be classified as a rule of evidence. Conversely, if fact A was not inherently relevant to proving fact B or lacked any probative value, yet a rule still imposed a rebuttable or irrebuttable presumption, such a rule would be a rule of substantive law rather than a rule of evidence. Accordingly, the Court rejected a blanket view that all rules creating irrebuttable presumptions automatically fell within substantive law. It emphasized that each rule must be examined in light of its impact on the proof of facts A and B. Applying this test, the Court said, required an inquiry into whether obtaining a foreign passport was inherently relevant to proving the voluntary acquisition of the foreign citizenship. The Court indicated that it would proceed to address that specific question.

The petitioners conceded that a passport they had obtained from the Government of Pakistan would unquestionably be relevant to determining whether the act of obtaining that passport amounted to acquisition of Pakistani citizenship. On the other hand, an argument was sometimes advanced, and apparently accepted, that the passport in question was irrelevant to the enquiry into the acquisition of Pakistani citizenship. The Court considered that view to be plainly incorrect. The Court referred to the definition of a passport articulated by Lord Alverstone, C. J., in R. v. Brailsford [1905] 2 K. IL 730, a definition that was later endorsed by the House of Lords in the Joyce case [1946] A.C. 347. Lord Alverstone described a passport as “a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries.” The Court also cited the observation of P. Weis, who noted that in both Great Britain and the United States a passport is regarded as prima facie evidence of the holder’s national status, although it is not conclusive evidence. Weis further remarked that the United States has frequently insisted that foreign authorities may not disregard an American passport or refuse to treat it as sufficient proof of the holder’s nationality. The Court observed that some authorities rely on a statement made by Mr. Justice Thompson in Dominao Urtetiqui v. John N. D’Arcy, Henry Didier and Domi D’Arbel (2), wherein Thompson, speaking for the United States Supreme Court, said that “upon the general and abstract question … whether the passport per se was legal and competent evidence of the fact of citizenship, we are of the opinion that it was not.” However, the Court examined the entirety of that judgment and found that Justice Thompson clarified, in the later portion of his opinion, that the Court was divided on the issue and that the question remained undecided. Consequently, the Court held that the earlier general observation could not be given any weight in the present matter. The Court further noted that the case involved a plaintiff who produced a passport issued by the United States Secretary of State to demonstrate his citizenship of the State of Maryland, while the defendant introduced as evidence the record of the United States District Court for the District of Louisiana, which contained proceedings in a suit originally instituted against the plaintiff on the ground that he was an alien; the Court in that case gave greater reliability to the latter piece of evidence.

In the passage cited from International Law at pages 225‑226, the Court observed that the suit had originally been instituted against the plaintiff on the ground that he was an alien, and that among the two pieces of evidence offered, the second piece had been deemed the more reliable. The Court therefore concluded that the counsel for the petitioners had been correct in acknowledging that the passports obtained by the petitioners were pertinent to the inquiry into whether the petitioners had acquired Pakistani citizenship. Applying the appropriate test for such circumstances, the Court held that the rule under challenge was a rule of evidence rather than a rule of substantive law. The mere fact of obtaining a Pakistani passport, which created a conclusive presumption of voluntary acquisition of Pakistani citizenship, was relevant, and the rule in question merely gave that presumption a definitive probative effect. Consequently, the Court was not persuaded to sustain the petitioners’ objection that the impugned rule constituted a rule of substantive law and therefore lay outside the ambit of section 9(2). If, as the Court found, the rule was properly characterised as a rule of evidence, it fell within the authority granted to the Central Government by section 9(2), and its validity could not be successfully challenged. The Court then referred to a decision that was relevant to the issue. The petitioners, in supporting their argument that the impugned rule was a rule of substantive law, relied upon the case In re Kohn. In that case, a mother and her daughter, both German nationals domiciled in Germany, were killed in the same air‑raid explosion in London, and it could not be proved which of them died first. The daughter’s entitlement to movable property under her mother’s will depended on her surviving her mother. The Court in that matter held that the question of survivorship was to be determined according to a provision of the German Civil Code, which presumed simultaneous death and consequently denied the daughter’s claim. By contrast, section 181 of the English Law of Property Act 1925 provided that where deaths were uncertain, they should be presumed to have occurred in order of seniority, deeming the younger survivor to have outlived the elder. The Court noted that both the German and English statutory provisions were rules of substantive law, the English provision being part of the Law of Property Act.

It was held that the rule which required the presumption to be applied in every case affecting the title to property qualified as a rule of substantive law, and that the provision contained in Article 20 of the German Civil Code was likewise to be treated as a rule of substantive law. The principal justification offered for classifying both provisions as substantive law was that each one mandated a specific presumption to be made whenever a question of title to property arose. Nevertheless, the Court observed that the scope, purpose and effect of those two rules differed substantially from the scope, purpose and effect of the rule that was the subject of the present dispute. In the matters considered in re‑Cohn there was no question about the evidential value of one fact being judged or evaluated under a statutory rule for the purpose of proving another fact. Like the well‑known principle that ignorance of the law is no excuse, the rules examined in that case were clearly rules of substantive law. Consequently, the Court found that the decision of Uthwatt, J. in re‑Cohn did not offer much assistance for the present issue. The Court further explained that the occurrence of simultaneous deaths of two persons is neither logically nor intrinsically relevant to, nor does it possess any inherent evidential value in, establishing the sequence of the two deaths; therefore the provisions in the two sections, being essentially arbitrary, were correctly characterized as matters of substantive law. While addressing this question, the Court also turned to the practical aspect of the rule, which led to an examination of the procedure that must be followed in Pakistan for obtaining a passport from the Government of that country for travel to India. One of the objectives that the Act incidentally sought to achieve was to meet the emergency created by the partition of India and Pakistan, and the relevant provisions are primarily applicable to Indian nationals who, upon going to Pakistan, obtain a passport from the Pakistani Government. It is not disputed that, under the prevailing laws of Pakistan, a person cannot apply for or obtain a passport unless he is a citizen of Pakistan within the meaning of the Pakistani Citizenship Act. Moreover, the prescribed passport‑application form requires the applicant to make a declaration that he is a citizen of Pakistan, and that declaration must be accepted by Pakistani authorities before a passport can be issued. During the inquiry into the applicant’s citizenship, declarations made by Pakistani officials regarding the truth of the applicant’s statement are also required to be filed. Accordingly, the procedure laid down by the applicable Pakistani statutes makes it abundantly clear that a passport application must be made by a Pakistani citizen, must contain a declaration to that effect, and must satisfy the Pakistani authorities that the declaration is true before the passport is granted.

The Court observed that the truth of the declaration made by an applicant must be satisfied to the satisfaction of the Pakistani officials before a passport can be issued. When a passport is granted under those conditions, the Pakistani Government can unquestionably regard the holder as its citizen. Consequently, that citizen is estopped from later asserting to the Pakistani Government that the statement he made about his citizenship was false. The Court considered that if the impugned rule declares that the act of obtaining a Pakistani passport by an Indian national—normally the result of a voluntarily submitted application—irrefutably demonstrates the voluntary acquisition of Pakistani citizenship, it would be untenable to describe that rule as “not a rule of evidence.” In the Court’s view, it would be overly pedantic and wholly unrealistic to argue that the rule does not aim to assess the probative value of one fact for the purpose of proving another fact, but instead introduces considerations that belong to substantive law. Accordingly, the Court concluded that the impugned provision is indeed a rule of evidence and falls within the ambit prescribed by section 9 (2). The challenge to its validity on the ground that it is a rule of substantive law must therefore fail. Beyond this theoretical or jurisprudential dimension, the Court identified an additional independent factor supporting the same conclusion. The matter before the Court required construing the expression “rules of evidence” as employed in section 9 (2) of the Act, and such construction necessitates an examination of the legislative history of that expression in India. The Evidence Act (Act No I of 1872) enacted in 1872, under section 4, recognised as rules of evidence those provisions that prescribe a presumption which may be drawn, a presumption which shall be drawn subject to rebuttal, and a presumption which shall be conclusively drawn. Sections 41, 112 and 113 illustrate conclusive presumptions. It was recalled that similar provisions were incorporated by Stephen in his draft of the Law of Evidence after he expressed the opinion that those presumptions form part of the law of evidence. Hence, from 1872 onward, Indian jurisprudence has accepted that a conclusive presumption is a component of the law of evidence. Bearing this historical fact in mind, the Court turned to the meaning of the term “evidence” in the relevant entries of the Seventh Schedule of the Government of India Act 1935 and the Constitution. Entry 5 in List III of the Seventh Schedule of the earlier Act reads: “Evidence and oaths; recognition of laws, public acts and records and judicial proceedings.” Likewise, Entry 12 in the concurrent List of the Seventh Schedule to the Constitution contains the same wording. The Court therefore concluded that, in light of the Indian legislative and judicial tradition, the phrase “rules of evidence” necessarily embraces rules that create conclusive presumptions.

It was well settled that whenever a legislature was granted authority to make laws on a particular subject, the proper way to determine the extent of that authority was to consider what matters were usually regarded as falling within that subject in ordinary legislative practice, and especially in the practice of the State that had conferred the power, as explained in the authority of Croft‑Dunphy. A clear illustration of this rule of construction was provided by the Federal Court in the case of The Central Provinces and Berar Act No XIY of 1938, which examined the meaning of the term “excise”. In that decision, Justice Gwyer observed that Parliament must be presumed to have had Indian legislative practice in mind, and that, unless the context clearly required otherwise, Parliament would not have intended to confer a legislative power that would be understood in a sense alien to those to whom the Act was intended to apply. Consequently, there could be no doubt that the expression “rules of evidence”, when read in the context of Indian legal and legislative history, necessarily encompassed certain rules of conclusive proof. If that interpretation was correct, then it would be futile to argue that the challenged rule formed part of substantive law merely because it created a conclusive presumption. Accepting that position meant that the Court could not adopt the academic or overly pedantic approach suggested by the petitioners in construing the words “rules of evidence”. The term “rules of evidence” unquestionably covered a rule dealing with a conclusive presumption such as the one that was the subject of the present petitions. Accordingly, when section 9(2) was interpreted in this manner, the impugned rule was held to be intra vires. The validity of this rule had already been examined by several High Courts in India. The High Courts of Andhra Pradesh and Allahabad had held the rule to be invalid, whereas the High Courts of Bombay, Rajasthan and Madras had upheld its validity. The next issue for consideration was the validity of section 9(2) itself. It was contended that the rule was ultra vires because it affected the citizenship status conferred on the petitioners and recognised by the relevant articles of the Constitution, and it was argued that by depriving the petitioners of citizenship their fundamental rights under article 19, especially the right guaranteed by article 19(1)(e), were impaired. The Court found this argument difficult to accept. As previously observed, the scheme of the constitutional articles dealing with citizenship in Part II clearly indicated that a parliamentary statute could adversely affect citizenship status. Although this may appear surprising at first glance, it was nevertheless true that while Indian citizens enjoyed the fundamental rights enumerated in article 19, the status of citizenship on which those rights depended was not itself a guaranteed fundamental right. Consequently, a law properly enacted by Parliament that altered the citizenship status of any citizen could not be challenged on the ground that it affected the fundamental rights of persons whose citizenship had been lawfully terminated.

The Court cited several authorities, namely A. I.R. 1957 Andh. 1047, A. 1. R. 1960 All 1637, A. 1. R. 1958 Bom. 1422, A. 1. R. 1958 Raj. 172, and A. 1. R. 1961 Mad. 129. It then observed that the status of citizenship, upon which the existence or continuance of the rights in question depends, is not itself a fundamental right guaranteed to any individual. Consequently, if Parliament validly enacts a law that affects the citizenship status of persons residing in the country, that law cannot be challenged on the ground that it interferes with the fundamental rights of those whose citizenship is thereby terminated. The Court explained that Article 19 presupposes that any person claiming the rights enumerated therein must be a citizen of India. When a Parliamentary statute lawfully terminates a person’s citizenship, that person no longer possesses the standing to invoke the rights guaranteed under Article 19. Accordingly, the Court concluded that the challenge to section 9(2) on the basis that it empowers the rule‑making authority to deprive the petitioners of citizenship cannot be sustained. Having disposed of that contention, the Court turned to the remaining allegation that section 9(2) vests the Central Government with an unbridled and arbitrary power to make rules without any guiding principle, thereby amounting to excessive delegation. The Court found no merit in this argument. It noted that section 9(1) already provides that an Indian citizen who obtains foreign citizenship by naturalisation is deemed to have lost Indian citizenship, and the same consequence follows where citizenship is acquired by registration. The legislature was aware that a person might acquire foreign citizenship voluntarily in ways other than naturalisation or registration, and therefore it expressly created a third category of acquisition under the phrase “otherwise voluntarily acquires.” This limitation meant that the rule‑making power was confined chiefly to cases falling within that third category. The Court underscored that the fundamental principle underlying the Act, and reaffirmed by Article 9 of the Constitution, is that an Indian citizen cannot enjoy dual or multiple citizenships. Once foreign citizenship is obtained—whether by naturalisation, registration, or the “otherwise voluntarily acquires” clause—the original Indian citizenship ceases automatically. In light of these constitutional and legislative principles, the Court held that the rule‑making authority was required to formulate rules addressing only the class of cases that involve the third category of foreign citizenship acquisition. It further observed that Rules 4 and 5, previously referenced, deal with situations other than those where an Indian citizen has obtained a passport, and they set out the relevant factors to be considered in each case before determining whether foreign citizenship has been acquired.

The Court observed that the rule in question dealt with foreign citizenship that an Indian individual might acquire, and it based its reasoning on the fact that the conditions laid down by Pakistani law for obtaining a passport were essentially equivalent to those for registration or naturalisation. Accordingly, the Court held that, given the scheme of the Citizenship Act and the principles expressed in its relevant sections, the legislature had not abandoned its core legislative responsibility to the rule‑making authority by enacting section 9(2). The Court therefore concluded that section 9(2) was constitutionally valid. As a result, the Court dismissed the petitions and ordered that no costs be awarded.

These three petitions presented identical legal questions and were therefore heard together. Because the issues were matters of law and the material facts were undisputed and substantially identical, the Court elected to consider the facts of one petition for brevity, namely W.P. No. 88 of 1961. The petitioner, identified as Habib Hidayatullah, asserted that he remained a citizen of India and invoked his fundamental right under article 19 of the Constitution, which he claimed was jeopardised by actions of the Union of India and the State of Maharashtra. It was not contested that the petitioner was a citizen of India on 26 January 1950 and that he possessed a Hai passport for the purpose of a pilgrimage at that time. He departed from Bombay for Basra, Iraq, on 5 April 1950 and remained there for three years engaged in business activities. Subsequently, on 2 May 1953, he traveled to Karachi with his brother, who required medical treatment, and upon arrival Pakistani authorities confiscated his Indian travel documents.

From 1954 through 1957 the petitioner repeatedly sought assistance from the Indian High Commission in Karachi to facilitate his return to India, but his efforts were unsuccessful. Consequently, he applied for and obtained a Pakistani passport on 14 December 1957, using it to travel back to India. He maintained that acquiring the Pakistani passport was a necessity solely to enable his return with his ailing brother and that he had no intention of relinquishing his Indian citizenship or of acquiring Pakistani citizenship. After re‑entering India, the petitioner submitted several representations to Indian authorities requesting recognition as an Indian citizen, registration as such, and permission to reside permanently in India. These requests were ultimately denied, leaving the petitioner facing possible deportation. He therefore approached the Court seeking an order directing the Union of India and the State of Maharashtra to refrain from deporting him and to recognise him as a citizen of India by birth under article 5(1)(a) of the Constitution.

In this case, the petitioner asked the Union of India and the State of Maharashtra to stop any action that might deport or remove him from the country and to recognise him as an Indian citizen by birth under article 5 (1)(a) of the Constitution. After admitting the writ petition at the preliminary hearing, the Court ordered that the petitioner could approach the Government under section 9 (2) of the Citizenship Act, or that the Government could, on its own initiative, take action under that provision. Following that order, both respondents entered their appearances and opposed the petition for a stay, contending that the petitioner had ceased to be an Indian citizen. The Government of India then exercised the power conferred by section 9 (2) of the Citizenship Act and concluded that the petitioner had voluntarily acquired Pakistani citizenship sometime after twenty‑six January 1950 and before fourteen December 1957. In reaching that conclusion, the Government’s order referred, among other considerations, to the fact that the petitioner had declared himself a citizen of Pakistan before the Pakistani authorities and had obtained a Pakistani passport on fourteen December 1957. Section 9 of the Citizenship Act reads: “Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any such time between twenty‑six January 1950 and the commencement of this Act voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India: Provided that nothing in this subsection shall apply to a citizen of India who during any war in which India may be engaged, voluntarily acquires the citizenship of another country until the Central Government otherwise directs.” Paragraph (2) of the same section adds that whenever a question arises as to when or how any person has acquired the citizenship of another country, that question shall be determined by the authority, in the manner, and having regard to the rules of evidence, as may be prescribed for that purpose. Rule 30 of the Citizenship Rules 1956, framed by the Central Government under section 18 of the Citizenship Act 1955, provides that if any question arises as to when or how a person has acquired the citizenship of another country, the authority to determine the question under section 9 (2) shall be the Central Government. It further directs that the Central Government, in making such a determination, shall give due regard to the rules of evidence specified in Schedule III of the Rules. Schedule III contains five rules, of which rule 3 states: “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.” There can be no dispute that if the order of the Central Government determining that the petitioner has voluntarily acquired the citizenship of

In this case, the Court observed that the order issued by the Government of Pakistan after 26 January 1950 was a valid order made pursuant to section 9(2) of the Citizenship Act. Consequently, under the provisions of section 9(1), the petitioner ceased to be a citizen of India, and therefore the petitioner’s petition could not succeed. Nevertheless, the petitioner contended before the Court that the Government’s determination possessed no legal effect because it was based on Rule 3 of Schedule III of the Citizenship Rules, a rule that the petitioner argued to be invalid. The Court identified the principal issue for determination as the validity of that particular rule.

The principal attack raised by the petitioner was that, although section 9(2) authorises the Government to prescribe rules of evidence, Rule 3 does not operate as a rule of evidence but rather as a rule of substantive law, and thus exceeds the authority conferred on the rule‑making body by the legislature. The petitioner further submitted that a clear distinction must be drawn between a genuine rule of evidence and a rule that, while labelled as a rule of evidence, actually establishes a substantive legal principle; applying that distinction, the petitioner argued, would demonstrate that Rule 3 is not a rule of evidence. An additional argument advanced by the petitioner was that when a rule declares one fact to be conclusive proof of another fact, the rule effectively equates the occurrence of the first fact with the occurrence of the second in law, thereby denying a party the opportunity to introduce relevant evidence to contest the second fact. The Court noted that every law serves the State’s function of granting rights and imposing liabilities on persons. Some statutes primarily create, modify or extinguish rights and liabilities; other statutes perform the ancillary function of ascertaining, in each case, the extent to which such rights or liabilities have arisen or been terminated. For the sake of clarity, the Court explained that the former category of statutes is described as substantive law, whereas the latter category is described as adjective law. Adjective law is further divided into procedural law governing court processes and, in the strict sense, the law of evidence. The Court affirmed that the distinction between substantive and adjective law is well settled in jurisprudence, although occasional confusion arises when writers fail to maintain the separation. The Court recalled that as early as the early nineteenth century, Bentham, in his Rationale of Judicial Evidence, criticised the habit of many writers who presented rules of civil and criminal law as rules of evidence. Bentham observed that what lawyers term “law of evidence” is, in large part, actually civil and penal law. The Court concluded that substantial progress has been made in clarifying this distinction since Bentham’s time.

In the present discussion, many distinguished jurists had stressed the importance of distinguishing genuine rules of evidence from rules that, although presented as evidential rules, actually belong to substantive law. One noted jurist, Mr. Justice Holmes, observed in his work on Common Law that if a court were to declare certain acts or omissions, when coupled with damage, to be conclusive evidence of negligence unless the party explained them, the court would in effect be stating that those acts or omissions constitute a ground of liability or, alternatively, that they bar a recovery. Professor Thayer, in his Preliminary Treatise on Evidence, further explained that not every decision to admit or exclude evidence falls within the domain of the law of evidence; the majority of such determinations lie outside that field. Professor Wigmore, writing in his Treatise on Evidence, clarified that allowing a fact to become a proposition does not constitute an evidentiary procedure. He illustrated this point with an example involving a battery charge on a plea of not guilty: the defendant offered evidence that the plaintiff had used insulting words before the alleged attack, and the court rejected that evidence. The true effect of that rejection, according to Wigmore, was to hold that insults do not provide an excuse or a ground for mitigation of damages, which is a rule of substantive law, or perhaps that such a defence is unavailable under the pleading rules. Consequently, the court’s ruling was not a determination of an evidentiary issue but a declaration that the proposition the defendant sought to prove was either untenable under substantive law or impermissible under pleading law. This reasoning formed the basis of Wigmore’s view expressed in section 2492 of volume nine of the same treatise, where he argued that rules laying down conclusive presumptions are in reality substantive law. He asserted that “in strictness” there can be no such thing as a conclusive presumption. Whenever a rule states that from one fact another is conclusively presumed, thereby absolutely preventing the opponent from producing evidence that the second fact does not exist, the rule actually provides that, once the first fact is established, the existence of the second fact is wholly immaterial to the proponent’s case. Providing such a provision, Wigmore explained, creates a substantive rule rather than a rule that allocates the burden of persuasion or varies the duty to produce evidence. The same perspective was echoed by Professor Holdsworth in his History of English Law. After tracing the evolution of presumptions by courts and legislatures, Holdsworth noted on page 139 of volume nine that the law concerning different kinds of presumptions had become a confused and heterogeneous collection of rules spanning many legal topics. He further observed that when courts or the legislature treat these presumptions as conclusive, they cannot today be regarded as components of the law of evidence; instead, they function as rules of substantive law.

The author continued on page 143 by observing that rebuttable presumptions of law, although they primarily belong to the particular branches of substantive law to which they relate, remain connected with the portion of adjectival law that deals with evidence. He then explained that irrebuttable presumptions of law, in contrast, are now more appropriately classified as part of substantive law rather than as rules of evidence. Nevertheless, he noted that these irrebuttable presumptions are substantive‑law rules that have borrowed the terminology and adopted the appearance of the evidential branch concerned with presumptions. Historically, he said, such presumptions arose in a period when the law had not yet embraced the modern concept of a trial based on the examination of evidence produced by the opposing parties, and instead sought a conclusive proof capable of settling the dispute. Consequently, he argued that these irrebuttable presumptions have never truly been part of the law of evidence as it is understood in contemporary legal systems. While both Wigmore and Holdsworth appeared to treat all conclusive presumptions as rules of substantive law, the author Phipson, in his work Law of Evidence, adopted a more measured stance. On page 698, Phipson remarked that in many instances the so‑called conclusive presumptions are rules that properly belong to various branches of substantive law and not to the law of evidence, giving examples such as the presumption that an infant under seven years of age is incapable of committing a felony and the presumption that all persons know the law, meaning that ignorance of the law does not excuse criminal conduct. He subsequently listed several other matters that constitute conclusive presumptions or amount to conclusive evidence, whether arising from statute or from common law. Unlike Wigmore and Holdsworth, Phipson did not assert that every rule of conclusive presumption is a rule of substantive law. The issue received further critical analysis from Sir James Stephen in his Digest of the Law of Evidence. Stephen first observed (p.xiii) that the whole of law can be divided into substantive law, which defines rights, duties and liabilities, and procedural law, which applies substantive law to particular cases. He then described the law of evidence as that segment of procedural law that, with the aim of ascertaining individual rights and liabilities in specific cases, determines (i) which facts may be proved and which may not, (ii) the type of evidence required to prove a provable fact, and (iii) the persons and the manner by which such evidence must be produced. While discussing presumptions, Stephen briefly noted that they also appear to belong to different branches of substantive law.

In his discussion, Stephen observes that certain presumptions are unintelligible unless they are linked to the substantive rights they affect. He gives the example of the presumption that every person knows the law. The substance of that presumption, he explains, is the general proposition that ignorance of the law does not excuse a person who violates it. Stephen argues that this proposition cannot be correctly treated as a rule of evidence; rather, it is a principle of criminal law. Likewise, he points out that many presumptions concerning property rights—specifically easements and incorporeal hereditaments—do not belong to the law of evidence but to the law of real property. Having made that observation, Stephen proceeds to separate out those conclusive presumptions that, in his view, may rightly be classified as part of the law of evidence. He states: “The only presumptions, which in my opinion, ought to find a place in the law of evidence, are those which relate to facts merely as facts, and apart from the particular rights which they constitute. Thus the rule, that a man not heard of for seven years is presumed to be dead, might be equally applicable to a dispute as to the validity of the marriage, an action of ejectment by a reversioner against a tenant pur autre vie, the admissibility of a declaration against interest, and many other subjects.” After careful study, Stephen placed a few presumptions of this kind in a dedicated chapter and relegated the remaining presumptions to the various branches of substantive law. Consequently, according to Stephen, conclusive presumptions that help to establish rights in different substantive domains may also be regarded as rules of evidence. The Court notes that it is unnecessary to resolve, for the present case, whether every rule that renders one fact conclusive proof of another is automatically a rule of substantive law. However, the Court finds it clear that whenever a question arises as to whether a particular rule is substantive or evidential, the inquiry must focus on the purpose of the rule. If the rule seeks to create, extinguish, or modify a legal right or liability, it is a rule of substantive law. If, instead, the rule is concerned only with the auxiliary function of determining what factual occurrence has taken place under the substantive law, it is a rule of evidence. A rule of evidence, the Court explains, may deal solely with the manner and extent of presenting facts so as to persuade a judge, jury, or other tribunal of the existence or non‑existence of facts that give rise to civil or criminal rights or liabilities. Such a rule does not answer the substantive question of what right or liability arises from the fact. If a rule presented as evidence effectively supplies that substantive answer, it has exceeded the permissible scope of evidential law.

In the respondent’s submission it was argued that a rule which declares one fact to be conclusive proof of another may ordinarily be characterised as a rule of substantive law when the first fact is entirely irrelevant to persuading a reasonable mind of the existence of the second fact. However, the respondent contended that the analysis changes if the first fact is “relevant” in the ordinary sense of possessing some persuasive value in the usual process of reasoning. According to that submission, when a rule designates such a “relevant” fact as conclusive proof of the fact to be proved, the law is effectively assigning the fact a hundred per cent persuasive weight, even though, in the absence of the rule, the persuasive weight might have been lower. The respondent maintained that a rule of this kind should be treated as a rule of evidence, just as a rule that merely states that a fact is relevant – that is, that it possesses some persuasive value – is invariably classified as a rule of evidence. The Court found this argument to be wholly mistaken and based on a misapprehension of the function of the law of evidence. The law of evidence does not direct a judge as to the intrinsic value that an item of proof must have. Its purpose, beyond allocating the burden of proof and prescribing the manner in which documentary and oral evidence may be presented before the tribunal, is to select among the countless facts those that, according to ordinary reasoning, have a varying degree of influence on the human mind in persuading it of the existence of other facts that give rise to, extinguish or modify a right or liability. When a rule simply states that a fact is relevant for proving a fact in issue, it merely informs the court that evidence of that fact may be admitted. By contrast, if the rule goes further and declares that the relevant fact will constitute conclusive proof of the fact in issue, thereby causing a specific right or liability to arise, the rule is directly affecting a substantive right or liability rather than merely providing a method of proof. Consequently, a rule of conclusive presumption intended to affect a specified substantive right is a rule of substantive law; it does not lose that character merely because the conclusive presumption rests on a fact that is deemed relevant.

When a rule declares that a fact either exists or does not exist, it is effectively stating that the particular relevant fact will create, extinguish, or modify a legal right or liability. The essential point, therefore, is that a rule of conclusive presumption that determines the existence of a certain fact solely for the purpose of establishing or disestablishing a specific substantive right actually influences that right and ceases to function merely as a rule of proof. It was previously observed that estoppel, which is fundamentally a rule of conclusive presumption, has traditionally been treated as a branch of the law of evidence. Assuming that classification is correct, the question arises whether this assumption proves that every rule of conclusive presumption must be a rule of evidence. The judgment has already noted that some conclusive presumptions belong to the evidential category and that estoppels may be among them. Halsbury’s Laws of England, 3rd Edition, Volume XV, page 168, defines estoppel as a situation where a party is prohibited from asserting that a particular statement of fact is false, irrespective of the actual truth of the statement. Consequently, estoppel concerns a statement of fact and is not aimed at affecting any specific right, although, in practice, all estoppels eventually influence some rights, as all evidential rules do. Therefore, insofar as estoppels, whether classified as conclusive presumptions or not, are not intended to affect substantive rights, they function as rules of evidence. This reasoning leads to the conclusion that treating estoppel as a rule of evidence does not establish that every rule of conclusive presumption is likewise a rule of evidence. The court then examined the impugned provision, which declares that if a citizen of India obtains a passport issued by a foreign government on any date, such obtaining shall constitute conclusive proof that the individual voluntarily acquired the citizenship of that foreign country before that date. Section 9 of the Citizenship Act (Act No. 57 of 1955) provides that any Indian citizen who, by naturalisation, registration or any other means, voluntarily acquires the citizenship of another country at any time between 26 January 1950 and the commencement of the Act shall, upon such acquisition or, as the case may be, upon the commencement of the Act, cease to be a citizen of India. This provision clearly operates as substantive law, stipulating that the voluntary acquisition of foreign citizenship by an Indian citizen terminates his Indian citizenship. Under subsection 2 of Section 9, the question of whether a person has acquired foreign citizenship must be decided by a prescribed authority, which is required to apply the prescribed rules of evidence. Ordinarily, such evidential rules address matters such as the burden of proof, the modes of presenting evidence, the rights to examination and cross‑examination, and they also identify certain facts that may possess persuasive value and for which evidence may be admitted.

In the context of determining the burden of proof, the applicable rules of evidence were allowed to raise a rebuttable presumption based on certain facts that a person had voluntarily acquired the citizenship of another country. Such a rule was characterised as a rule of evidence because its sole effect was to shift the onus of proof; it was not intended to, nor did it, affect any substantive right. Accordingly, the authority prescribed by law was required to examine those facts that tended to persuade that the individual had voluntarily acquired foreign citizenship, as well as facts that tended to show the contrary, provided that the presentation of those facts was not prohibited by the prescribed evidential rules. The situation changed when the rule‑making authority introduced a provision stating that the mere obtaining of a passport of another country would constitute conclusive proof of voluntary acquisition of that country’s citizenship. Under section 9, the voluntary acquisition of foreign citizenship results in the termination of the person’s Indian citizenship. Because this rule directly affected a substantive right, it had to be regarded as intended to do so in the context of section 9. Consequently, the rule could not be described as a rule of evidence; it was plainly a rule of substantive law. Under the impugned rule, the fact of obtaining a foreign passport produced the loss of Indian citizenship even if the person had not, in fact, acquired foreign citizenship for that purpose. For example, a person who was an Indian citizen by descent but also a French citizen by birth might obtain a French passport; similarly, a foreign country might issue a passport to a person who was not its national under its own law. In either case, obtaining the passport did not necessarily indicate voluntary acquisition of foreign citizenship, yet the impugned rule treated such a passport as conclusive proof and thereby extinguished the individual’s Indian citizenship. Thus, the impugned rule was identified as a substantive law rule, distinct from a rule of evidence. In a final attempt to preserve the rule, the respondent argued that it was not an irrebuttable presumption and pointed out that rule 30(2) provided that the Central Government, when determining the matter, shall have due regard to the relevant rules of evidence.

In this case, the Court examined the meaning of the expression ‘shall have due regard to’ in the provision that requires the Central Government, when deciding whether, when or how a person has acquired the citizenship of another country, to consider the rules of evidence laid down in Schedule III. The Court observed that the argument advanced by the respondent was that the words ‘shall have due regard to’ merely required the Government to take the evidentiary rules into account, but did not bind it strictly to follow them. The respondent supported this view by quoting the observations of Viscount Simon in Ryots of Garabandho v. Zamindar of Parlakimadi. The Court found that the cited authority did not aid the interpretation of ‘shall have due regard to’ in the present context. The Court explained that the effect of the words depends on the situation in which they appear. Here, the provision directs the deciding authority to regard a rule that treats one fact as conclusive proof of another. The Court held that it is untenable to argue that the authority may disregard such a rule and, despite the existence of a fact that is said to be conclusive proof of another, refuse to accept the second fact as proved. Moreover, the Court said that it is unnecessary to analyse further the impact of ‘shall have due regard to’ because once the rule in question is declared void for being beyond the power of the rule‑making authority, any decision that was based on that rule is itself void. The Court then turned to the question of the validity of Rule 3 of Schedule III of the Citizenship Act, which had been examined by several High Courts. The Madras High Court in Mohomed Usman v. State of Madras and the Rajasthan High Court in Ghaural Hasan v. State of Rajasthan had held the rule to be valid. In contrast, the Andhra Pradesh High Court in Mohd Khan v. Government of Andhra Pradesh and the Allahabad High Court in Sharafat Ali Khan v. State of Uttar Pradesh had held the rule to be void. After considering the earlier discussion, the Court affirmed the view expressed by the Andhra Pradesh and Allahabad High Courts. Consequently, the Court concluded that Rule 3 of Schedule III is ultra vires and therefore void. As a result, the Central Government’s determination that the petitioner voluntarily acquired Pakistani citizenship sometime after 26 January 1950 and before 14 December 1957 lacks any legal effect. The Court noted two further submissions. The first submission contended that Section 9 of the Citizenship Act itself violates the Constitution because it deprives individuals of citizenship rights. The Court indicated that it was sufficient to address this point by observing that, if citizenship is regarded as a fundamental right, Article 11 of the Constitution expressly empowers Parliament to enact any provision relating to the acquisition and termination of citizenship.

Article 11 authorises Parliament to make any provision concerning the acquisition and termination of citizenship, and the Court therefore held that Section 9 falls squarely within the scope of this constitutional authority. It was subsequently submitted that subsection 9(2) confers an unguided power on the Government and consequently amounts to an abdication of Parliament’s legislative competence under Article 11. The Court was not persuaded by this submission and found no indication that subsection 9(2) provides any unguided authority. First, the provision empowers the Government to constitute an authority tasked with deciding whether an individual has acquired foreign citizenship; this does not create a power of subordinate legislation but merely enables the Government to establish a body to make determinations that the statute itself requires to be decided. Regarding the power to frame rules of evidence, the Court observed that the subsection supplies sufficient guidance. The only authority granted to the Government is to frame rules of evidence, and any difficulty in classifying a particular rule as evidence does not render the power vague or overly broad. The Court emphasized that the power is clear, limited and confined to making rules of evidence and nothing beyond that. If the Government exceeds this limited power, as the Court believes has occurred in the present case, the exercise of the power becomes invalid. The Court noted that any uncertainty in distinguishing a rule of evidence cannot transform the power to frame such rules into a vague or expansive authority. Consequently, for the disposal of the petitions, the Court concluded that the question of whether the petitioners have acquired foreign nationality must be examined and decided by the Central Government in accordance with law. Accordingly, the Court directed the Central Government to determine, in accordance with law and excluding the operation of Rule 3 of Schedule III of the Citizenship Rules 1956, whether the petitioners voluntarily acquired Pakistani citizenship after 26 January 1950. Upon receipt of the Government’s findings, the Court indicated that it would proceed with further hearing of the petitions. In line with the majority view, the Court held that the petitions fail and ordered their dismissal, without awarding any order as to costs.