Izhar Ahmad Khan vs Union Of India (Uoi) on 16 February, 1962
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: A.K. Sarkar, K.C. Das Gupta, K.N. Wanchoo, N. Rajgopala Ayyangar, P.B. Gajendragadkar
In this matter the Supreme Court recorded that three separate writ petitions had been filed by three distinct petitioners. Each petition had been instituted under article thirty‑two of the Constitution for the purpose of securing the protection of the fundamental right guaranteed by article nineteen‑one‑subparagraph (e). Although the petitions were originally heard on separate occasions, the Court found it appropriate to dispense with separate opinions because all three raised identical constitutional issues. The central question in each case concerned the validity of section nine‑sub‑two of the Citizenship Act, nineteen‑fifty‑five (act LVII of nineteen‑fifty‑five) and also the propriety of rule three contained in schedule III of the Citizenship Rules, nineteen‑fifty‑six. Consequently, the Court decided to set out, at the very beginning of its opinion, a concise statement of the material facts that underlay each of the three petitions, so that the subsequent analysis could be conducted in a single, coherent judgment without sacrificing any of the essential details of the individual applications.
One of the petitions, designated writ petition number one‑zero‑one of nineteen‑fifty‑nine, was filed by a man named Izhar Ahmad Khan, who asserted that he was a citizen of India and that he resided in the city of Bhopal. He had been entered as a voter on both the parliamentary electoral roll and the state legislative assembly electoral roll for that constituency. On the twentieth day of August, nineteen‑fifty‑two, the police seized him from the restaurant he operated in Bhopal. The officers informed him that his arrest was being made pursuant to an order issued by the then Government of Bhopal under section seven of the Influx from Pakistan (Central) Act. The following day he was placed aboard a train that conveyed him to the border with Pakistan, where he was left with an instruction to proceed into Pakistan, despite his repeated protests. In response to this removal, his elder brother, Iqbal Ahmad, filed a petition before the Court of the Judicial Commissioner of Bhopal, invoking article two‑twenty‑six of the Constitution for a writ of habeas corpus. The Judicial Commissioner issued his judgment in February, nineteen‑fifty‑three. In that judgment he held in favor of the petitioner, concluding that he had been born in India and therefore possessed Indian citizenship. The Commissioner also found in his favour on the issue of migration. Nevertheless, the Commissioner observed that the petitioner had been present in Pakistan during the months of May and June, nineteen‑fifty‑two, and that such presence constituted a breach of section three of the Influx from Pakistan (Central) Act. On that basis, the Commissioner concluded that the petitioner was liable to be physically removed from India under the provisions of section seven of the same Act.
After being taken to Pakistan against his will, the petitioner sought assistance from the High Commissioner of India in order to secure his return to Indian territory, but his efforts proved unsuccessful. Consequently, he was compelled to complete an application form in order to obtain a passport that would enable him to travel back to India. Upon receipt of the passport, he returned to Indian soil on the thirteenth day of August, nineteen‑fifty‑three. Shortly after re‑entering the country, he submitted an application requesting permission to remain in India on a permanent basis. In connection with that request, the authorities issued him a visa that would permit his stay in India, setting the stage for further proceedings concerning his status and right to permanent settlement.
The petitioner’s long‑term visa was renewed repeatedly while his application for permanent residence in India was pending. On 15 February 1954, this Court declared section 7 of the Influx from Pakistan (Central) Act void. Consequently, the petitioner pressed his request for permanent settlement, and the Government of India issued a long‑term visa to him pending a decision on that request. In 1955 the Act was re‑enacted, and, following legal advice, the petitioner applied for registration as an Indian citizen. That application was rejected, and his request for permanent leave to stay in India was likewise denied. Subsequently, the District Superintendent of Police at Bhopal served an order dated 16 June 1959 directing the petitioner to leave India within seven days; the order was issued under section 3(2)(c) of the Foreigners Act, 1946 (No. XXXI of 1946). The petitioner filed the present writ petition on 13 August 1959 challenging that order. In his petition he claimed that he was not a foreigner as defined by the Foreigners Act and he contested the validity of the operative provisions of that Act. After notices were 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 heard before this Court on 22 January 1960. After hearing counsel for a period, the Court delivered an interlocutory judgment observing that the decisive issue was whether the petitioner was an Indian citizen, a question that could be determined only under section 9(2) of the Act. The Court therefore directed that an enquiry be conducted by an appropriate authority and that its findings be communicated to the Court at the earliest opportunity, after which the petition would be listed for a final hearing. In the meantime, the Court continued the stay of the petitioner’s deportation. Pursuant to that interlocutory order, the required enquiry under section 9(2) was held after the petitioner was served notice of the enquiry. On 11 September 1961 the Central Government concluded that the petitioner had voluntarily acquired Pakistani citizenship sometime after 26 January 1950 and before 29 July 1953, a conclusion reached largely on the basis of the impugned document identified as R.No. 3. After the enquiry concluded and its result was communicated to the Court, the petitioner sought permission to raise additional grounds, including the two questions previously identified. This summarizes the factual background of Petition No. 101 of 1959.
Abrarul Hassan, who was the petitioner in petition number 136 of 1959, asserted that he was an Indian citizen and that he resided in Bhopal. In 1951 his family received information from Pakistan that his elder brother, Syed Hassan, was seriously ill; consequently, the petitioner travelled to Pakistan together with his mother, younger sisters and a younger brother. The petitioner remained in Pakistan for several years before attempting to return to India. To facilitate his return, he applied for a Pakistani passport, obtained that passport, and entered India in May 1954. After his arrival, he sought permission from the Government of India to settle permanently in the country, and while that application was pending he was issued long‑term visas. In 1959 the District Superintendent of Police in Bhopal served an order directing Abrarul Hassan to leave India by 22 August 1959, an order that was issued under section 3(2)(c) of the Foreigners Act. The petitioner challenged the validity of that order and also questioned the applicability of the relevant provisions of the Foreigners Act on the ground that he was not a foreigner and therefore the provisions could not be invoked against him, mirroring the relief sought in petition number 101 of 1959. Subsequently, both petition 136 of 1959 and petition 101 of 1959 were heard together on 22 January 1960. The course of events in the former petition was essentially the same as in the latter. Following an enquiry conducted under section 9(2) of the Citizenship Act, the Central Government concluded that Abrarul Hassan had voluntarily obtained the citizenship of Pakistan after 26 January 1950 and before 20 November 1952. After receiving that conclusion, the petitioner applied for leave to raise additional grounds, including the two grounds previously mentioned, demonstrating that the material facts in the two petitions were substantially similar. In a separate matter, Habib Hidayatullah, the petitioner in petition number 88 of 1961, also claimed Indian citizenship and alleged infringement of his fundamental rights under article 19 of the Constitution because he faced deportation on the premise that he had acquired Pakistani citizenship. He reportedly sailed from Bombay to Basra in April 1950, remained there for three years for business purposes, and in May 1963 accompanied his brother to Karachi for medical treatment. Upon arrival in Karachi, 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, stating that he did so with the intention of returning to India. Upon his return to India using that passport, he made several representations to Indian authorities seeking recognition as an Indian citizen, efforts that ultimately did not succeed and left him vulnerable to deportation.
Having been unable to obtain recognition as a citizen of India, the petitioner also attempted to secure formal registration of his citizenship, but those attempts were unsuccessful. Because his efforts did not succeed, he faced the possibility of being expelled from Indian territory. Consequently, on 20 February 1961 he filed the present petition seeking relief. In his petition he asked the Union of India and the State of Maharashtra to refrain from taking any action that would result in his deportation from India.
The Court admitted the petition and, in the same order, informed the petitioner that he could either approach the Government under section 9(2) of the Citizenship Act or expect the Government to act on its own initiative. After the admission, the respondents entered their appearance and objected to the grant of a stay, arguing that the petitioner had ceased to be an Indian citizen. The Government of India subsequently 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 and before 14 December 1957. Following the communication of that order to the petitioner, he raised additional grounds, two of which had already been identified in the earlier submissions. In light of these facts, the three petitioners now contest their possible deportation on the basis that section 9(2) of the Citizenship Act exceeds the legislative competence of Parliament and that Rule 3 of Schedule III of the Citizenship Rules 1956 is likewise unconstitutional.
Before considering the specific contentions raised in the three petitions, the Court found it useful to set out briefly the relevant constitutional and statutory provisions. Part II of the Constitution, comprising Articles 5 to 11, governs the law of citizenship. Article 5 declares that every person described in clauses (a), (b) and (c) shall be a citizen of India. Article 6 states that, notwithstanding the provisions of Article 5, any person who migrated to the territory of India from the area now forming Pakistan shall be deemed a citizen of India at the commencement of the Constitution if he satisfies the conditions laid down in clauses (a) and (b). Article 7 provides that a person who, after 1 March 1947, migrated from India to the territory now forming Pakistan shall not be deemed a citizen of India, regardless of the provisions of Articles 5 and 6; the proviso to this article is not essential for the current discussion. Article 8 concerns the citizenship rights of a person whose parent or grand‑parent was born in India as defined in the Government of India Act, 1935, and who ordinarily resides abroad as defined therein. The subsequent three articles are particularly important. Article 9 stipulates that no person shall be a citizen of India by virtue of Article 5, nor shall he be deemed a citizen under Articles 5, 6 or 8, if he has voluntarily acquired the citizenship of any foreign State.
In this provision, a person cannot be considered a citizen of India under Article 6 or Article 8 if that person has voluntarily taken the citizenship of any foreign nation. In other words, when a person had, before the Constitution began to operate, voluntarily acquired the citizenship of a foreign State, that individual is not permitted to claim Indian citizenship on the basis of Article 5, Article 6 or Article 8. The clause therefore addresses situations in which an Indian national had already become a citizen of another country before the Constitution came into force.
Article 10 then guarantees that the right of citizenship will continue for every person who is, or is deemed to be, a citizen of India under any of the preceding provisions of Part II. However, this guarantee is conditioned on the fact that the continuance of citizenship may be governed by any law that Parliament may enact. The proviso attached to Article 10 makes it clear that any statute passed by Parliament can affect the continuation of citizenship rights, provided the statute’s terms allow it.
The discussion proceeds to Article 11, which confers upon Parliament the authority to regulate the right of citizenship through legislation. Article 11 states that nothing contained in the earlier provisions of Part II shall diminish Parliament’s power to enact any law relating to the acquisition, termination, and all other matters concerning citizenship. It follows that, while Part II outlines the basic criteria for recognising citizenship in individuals, and while Article 10 secures the continuation of those rights, Article 11 expressly empowers Parliament to make provisions covering both the acquisition and the termination of citizenship, as well as any ancillary issues.
Consequently, Parliament may legislate to alter citizenship rights, and statutes enacted under this authority cannot be challenged on the ground that they conflict with Articles 5 through 10 of Part II. It is therefore important to note that Article 11 was incorporated into Part II to affirm that Parliament’s sovereign power over citizenship matters is not limited or impaired by the other provisions of the Part. As a result, the legislative competence of Parliament to address citizenship—an area placed in Entry 17 of List I of the Seventh Schedule—is expansive and is not constrained by Articles 5 to 10 of Part II. This broad legislative scope may be relevant when considering the petitioners’ claim that their rights under Article 19 are impacted by the contested provisions.
In this case the Court examined the provisions of section 9(2) of the Citizenship Act that were challenged. The Court explained that Parliament, exercising the legislative power granted by Entry 17 of the Seventh Schedule and acting in accordance with Article 11 of Part II of the Constitution, enacted the Citizenship Act, which became operative on 30 December 1955. The preamble of the Act makes clear that its purpose was to establish the legal framework for both acquiring and terminating Indian citizenship. The mechanisms for acquiring citizenship are set out in sections 3 to 7 of the Act. Section 3 provides for citizenship by birth, section 4 provides for citizenship by descent, section 5 deals with citizenship acquired through registration, section 6 covers citizenship obtained by naturalisation, and section 7 addresses citizenship that arises from the incorporation of territory into India. After these five sections dealing with acquisition, the Act turns to termination of citizenship in sections 8, 9 and 10. Section 8 concerns the voluntary renunciation of Indian citizenship, section 9 governs the termination of citizenship, and section 10 provides for the deprivation of citizenship under specified circumstances. The Court focused its attention on section 9, which contains the rules for termination. The text of section 9 reads as follows: “(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between 26 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 this provision is unequivocal. It is clear that when an Indian citizen voluntarily takes up the citizenship of another nation, his Indian citizenship terminates, whether such voluntary acquisition occurred between 26 January 1950 and the date the Act came into force, or whether it occurs after that date. The Court contrasted this statutory rule with Article 9 of the Constitution, which dealt with the acquisition of foreign citizenship that had taken place before the Constitution commenced. Section 9 of the Act, by contrast, addresses the acquisition of foreign citizenship that occurs after the Constitution has come into force. Consequently, the Court concluded that the Constitution does not permit dual or plural citizenship. Just as Article 9 previously prevented a person who had voluntarily acquired foreign citizenship before the Constitution from claiming Indian citizenship, section 9(1) now imposes an identical restriction on persons who acquire foreign citizenship after the Constitution’s commencement. Thus, section 9 makes clear that the acquisition of foreign citizenship, whether by naturalisation, registration or any other voluntary means, brings an immediate end to Indian citizenship.
The Court observed that foreign citizenship may be obtained through naturalisation, registration, or any other voluntary method. Just as Indian citizenship can be acquired by naturalisation or by registration, a foreign citizenship can likewise be obtained by the same processes of naturalisation or registration. When it is established that a person has become a citizen of another country by either naturalisation or registration, there can be no doubt that, as a direct consequence of that acquisition, the person ceases to be an Indian citizen. These two categories of foreign citizenship therefore present no difficulty for the application of the law. The only remaining category consists of cases in which foreign citizenship is acquired by means other than naturalisation or registration. Even in such cases, the Court held that there is no uncertainty: if it is proved that, by some other procedure, the individual has voluntarily acquired foreign citizenship, the Indian citizenship terminates immediately. The Court noted that the proviso to subsection (1) of the provision need not be considered, because the matters falling within that proviso are not the subject of the present dispute.
Turning to subsection (2) of the same section, the Court explained that this clause provides that whenever any question arises concerning the acquisition of foreign citizenship by an Indian citizen, that question shall be determined by an authority designated for that purpose, in the manner prescribed, and in accordance with the rules of evidence that may be made for that specific purpose. In other words, if a dispute arises as to whether an Indian citizen has voluntarily acquired foreign citizenship, or as to the time or manner of such acquisition, the power to decide that dispute has been delegated to an authority that may be appointed by the appropriate rule. Likewise, the procedure for conducting the enquiry and the evidentiary rules that will govern it must also be prescribed by such a rule. The effect of this subsection is therefore that rules must be framed to specify the authority that will try such questions, the procedure to be followed, and the evidential standards that will apply.
The Court then turned to section eighteen, paragraph one, which authorises the making of rules in order to give effect to the purposes of the Act. Paragraph two further provides that, without limiting the general power, the rules may specifically address the matters listed in clauses (a) to (k) of that subsection. Paragraph three empowers the Central Government to prescribe that a breach of any such rule shall be punishable by a fine of up to one thousand rupees. Paragraph four requires that all rules made under this section must, as soon as practicable after their creation, be laid before both Houses of Parliament for a minimum period of fourteen days, and that Parliament may amend those rules during the session in which they are presented. This provision, the Court noted, is intended to enable Parliament to exercise oversight over the rules made by the Central Government in the exercise of its delegated authority.
In this case, the Court noted that Parliament was intended to have the ability to supervise the rules made by the Central Government in execution of powers that had been delegated to it. In 1956 the Central Government attempted to make a set of Rules under the authority granted by section 18 of the Act. The matter before the Court concerned Rule 30 of those Rules. Rule 30 dealt with the authority that was to determine whether a person had acquired the citizenship of another country. Clause 30(1) provided that whenever any question arose about whether, when or how any person had acquired the citizenship of another country, the authority designated to decide that question, for the purpose of section 9(2), would be the Central Government itself. Sub‑clause 30(2) required the Central Government, in making such a determination, to give due regard to the rules of evidence set out in Schedule III. Schedule III enumerated the evidentiary rules that would govern an enquiry conducted under section 9(2). Rule I of Schedule III stated that if the Central Government was satisfied that an Indian citizen had voluntarily taken the citizenship of a foreign country, it could require that person to produce proof, within a prescribed period, that he had not acquired such foreign citizenship, and that the burden of proving the negative rested on the individual. Rule 2 authorised the Central Government to refer any question that it needed to resolve in the enquiry to its Embassy in the relevant foreign country or to the government of that country, and it permitted the Central Government to rely on any report or information received as a result of that reference. The next provision, Rule 3, was the subject of the present challenge. Rule 3 read: “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 the country before that date.” The Court observed that the remaining rules did not require discussion. The effect of Rule 3 was clear: if it could be shown that an Indian citizen had obtained a foreign passport on a particular date, then, according to Rule 3, a presumption arose that by obtaining that passport the person had voluntarily acquired the citizenship of that foreign country prior to the date the passport was issued. In other words, the existence of a foreign passport dated a certain day conclusively established the fact that the individual had already become a citizen of that foreign state before that day. The principal issue for determination was whether Rule 3 was valid under the Constitution, and, if it was, whether section 9(2)—the provision that authorised the Central Government to conduct the enquiry subject to the applicable rules—had been constitutionally validly delegated to the Central Government. The Court indicated that it would first consider the challenge to the validity of Rule 3, noting that the primary ground of that challenge was the principal ground on
The objection to rule 3 focuses on the contention that Section 9(2) empowers the Central Government only to prescribe rules of evidence for the conduct of the enquiry, whereas the Central Government, in formulating rule 3, has attempted to create a rule of substantive law. The argument asserts that the phrase “rules of evidence” in Section 9(2) plainly refers to rules that are correctly described as evidence rules. Because the challenged rule, in substance, does not qualify as a rule of evidence but rather as a rule of substantive law, the argument holds that it lies beyond the scope of the authority delegated by Section 9(2) and therefore must be declared invalid. It is further observed that Section 18(1) grants the Central Government the power to make rules for the purpose of carrying out the statutory objectives of the Act. However, that general power, it is argued, does not extend to the making of substantive law. Consequently, if rule 3 is indeed a substantive rule and the expression “rules of evidence” in Section 9(2) does not encompass such a rule, the challenge to the rule’s validity should succeed.
In order to assess the strength of this argument, it is necessary to recall the origins and purpose of the law of evidence. The well‑recognised classification of law divides it into substantive law, which defines rights, duties and liabilities, and procedural law, which governs the method of applying substantive law to individual cases. The law of evidence belongs to the procedural side because it deals with the manner in which facts may be proved, the kinds of evidence that may be presented, the persons who may give evidence and the procedures for its admission. Consistent with its procedural character, the Indian Evidence Act addresses matters that normally fall within the scope of evidence law: it sets out rules of relevance, provides for exclusion of certain evidence such as hearsay or parole evidence, determines onus of proof, regulates the competence of witnesses, prescribes the proof of documentary evidence, and governs presumptions and estoppel. As Best explains, “evidence” is defined as any matter of fact whose effect, tendency or design is to persuade the mind either affirmatively or negatively about the existence of another fact. Judicial evidence, the category dealt with by the Evidence Act, is therefore a subset of the broader concept of evidence and is essentially natural evidence shaped by statutory rules.
In this passage the Court explained that evidence is subject to the control of positive law. The statutes that compose the Evidence Act are founded on the principle that a legal system works best when it leaves as little discretion as possible to judges. Accordingly the Court quoted a maxim that the laws of every well‑governed State have established rules that regulate the quality, and at times the quantity, of evidence required to support a judicial decision. The Court observed that the purpose of those rules is to regulate how evidence is produced and proved in a judicial enquiry, and that the rules of evidence therefore incorporate certain presumptions, which may be either rebuttable or irrebuttable. The term “presumption” was defined in its broadest sense as an inference—affirmative or disaffirmative of the truth or falsehood of a doubtful fact or proposition—drawn by probable reasoning from something proved or taken for granted. Relying on Best’s definition, the Court stated that when the rules of evidence permit the raising of a rebuttable or irrebuttable presumption, they are merely assisting the judicial mind in assessing the probative or persuasive force of facts that have been proved in relation to other facts that are presumed or inferred. The Court emphasized that the entire scheme of the Evidence Act is intended to achieve the objective of regulating the proof of facts by subjecting the production of evidence to the prescribed rules. Having set out this background, the Court indicated that the petitioners’ argument must be examined in the light of this function and purpose of the Evidence Act. The petitioners contended strongly that the impugned provision, which obliges the enquiring authority to infer that an Indian citizen has acquired the citizenship of a foreign country merely because that person has obtained a foreign passport, should not be regarded as a rule of evidence but rather as a rule of substantive law dealing with acquisition or termination of citizenship. To support their position the petitioners relied on the opinions of jurists. The Court therefore turned to those opinions to determine whether they support the petitioners’ conclusion. Holdsworth was cited, observing that difficulties in proving facts under older trial methods, the gradual development of modern procedures, continuing evidentiary challenges, and occasional desire to amend an inconvenient law have at various times led legislators and courts to create presumptions of law, sometimes rebuttable and sometimes irrebuttable. Holdsworth noted that rebuttable presumptions of law primarily belong to the substantive law concerned, but they are connected with the part of adjective law dealing with evidence because they direct the court to draw particular inferences from particular facts until the contrary is proved. Holdsworth further explained that irrebuttable presumptions of law, on
Holdsworth observed that, in the present day, irre‑ rebuttable presumptions are more appropriately regarded as part of substantive law rather than as rules of evidence, as he stated in his work “A History of English Law” (1926, vol. IX, pages 143‑144). He then distinguished between estoppel, which he described as a rule of evidence, and an irre‑ rebuttable presumption, which he said operates as a rule of substantive law. Holdsworth explained that an irre‑ rebuttable presumption functions by mandating that when certain facts are established, a particular legal inference must follow, whereas estoppel, being a rule of evidence, prevents the introduction of evidence that would contradict facts already proved between the litigating parties. According to Holdsworth, therefore, irre‑ rebuttable presumptions always fall within the domain of substantive law, while rebuttable presumptions and estoppel belong to the law of evidence, the latter being a rule of evidence rather than a substantive rule.
Wigmore expressed a similar view regarding the nature of irre‑ rebuttable presumptions. He wrote that whenever one fact is said to lead to a conclusively presumed second fact, such that the opposing party is absolutely barred from presenting any evidence to show that the second fact does not exist, the rule in effect declares the second fact immaterial to the proponent’s case once the first fact is proven. Wigmore argued that this situation creates a substantive rule rather than a rule that merely allocates the burden of persuasion or alters the duty to produce evidence, as he noted in “Wigmore on Evidence” (IX edition, page 292, paragraph 2492). The Court, however, expressed some doubt about the phrasing that the second fact becomes wholly immaterial. Instead, it clarified that the rule provides that the probative or persuasive value of the proved fact is so strong that the unproved fact should be treated as proven whenever the proved fact is established. In any event, Wigmore’s opinion aligns with the petitioners’ contentions.
Phipson offered a more guarded statement about conclusive presumptions. He observed that, in many instances, such presumptions properly belong to various branches of substantive law rather than to the law of evidence. He illustrated his point by citing two examples: the presumption that a child under seven years of age cannot commit a felony, and the presumption that every adult knows the law, meaning that ignorance of the law does not excuse criminal conduct (Phipson on Evidence, IX edition, page 698). From these examples, Phipson concluded that it is not an absolute rule that all conclusive presumptions are matters of substantive law, but that many well‑known presumptions indeed fall within that category. Consequently, if Phipson’s test for determining the nature of a presumption is accepted, the Court must examine each presumption in the context of its content and implications to decide whether it is part of substantive law or a rule of evidence.
In order to determine whether a conclusive presumption that arises in a particular case should be regarded as part of substantive law or as a rule of evidence, one must examine the substance of the rule and the effect it produces. The appropriate classification depends on the content of the presumption and on the legal consequences that follow from it.
The jurist Stephen also addressed this question. He observed 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 illustrated his point with the well‑known presumption that everyone knows the law. Stephen argued that this presumption cannot be properly understood if treated as part of the Law of Evidence; instead, it belongs to Criminal Law. In a similar manner, he noted that many presumptions concerning property rights—particularly those relating to easements and incorporeal hereditaments—are not evidential rules but belong to the Law of Real Property.
Having made this observation, Stephen added that only those presumptions that relate to facts “merely as facts” and that are detached from the specific rights they create should be placed within the Law of Evidence. He referred to his own Digest, where he placed certain presumptions under Articles 98 to 105. These include 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 that deeds establish title. He also listed various kinds of estoppel—estoppel by conduct, estoppel of tenant and licensee, estoppel of the acceptor of a bill of exchange, and estoppel of bailee, agent and licensee. According to Stephen, the four forms of estoppel he mentioned constitute a branch of the rule of evidence.
Dicey offered a somewhat different perspective. He suggested that, even for the purposes of domestic law, irrebuttable presumptions of law should be treated as rules of substance. He further proposed that rebuttable presumptions of law require a finer classification. First, there are presumptions that operate only in limited contexts, such as the presumptions of advancement, satisfaction and ademption. Dicey argued that these presumptions are so closely linked to the existence of substantive rights that they ought to be classified as rules of substance. Second, there are presumptions that apply, though not always in exactly the same way, across all types of cases; examples include presumptions of legitimacy, marriage and death. Dicey admitted that it was uncertain whether such presumptions should be regarded as rules of substance or as rules of procedure.
For the purposes of English domestic law, Dicey noted that estoppel is generally treated as a rule of evidence. He further explained that to decide whether any presumption falls under the category of substance or procedure, it is necessary to distinguish among three kinds of presumptions. He identified these categories as presumptions of fact, rebuttable presumptions of law and irrebuttable presumptions of law. As to presumptions of
In discussing facts, the Court observed that, strictly speaking, facts possess no legal effect of their own; they are simply common inferences that are applied in exactly the same manner to cases governed by English law as to those governed by foreign law. The Court then turned to the question of how to characterise a rule that creates an irrebuttable presumption. It recognised that the opinions of jurists on this point must be given due weight. However, the Court noted that the juristic writings on the subject do not present a single, unified approach; rather, they express a range of differing opinions. Bearing this diversity of juristic opinion in mind, the Court decided to examine whether the rule that imposes an irrebuttable presumption, as contained in the impugned provision, should be regarded as part of the substantive law rather than as a rule of evidence in the strict sense.
The Court conceded, and considered this concession to be correct, that a rule which creates a rebuttable presumption is properly classified as a rule of evidence. It therefore set out to analyse the true meaning of a rule that establishes a rebuttable presumption. The Court explained that when a fact designated as “fact A” is relevant to proving another fact, “fact B,” and when fact A inherently carries some probative or persuasive value, a judge may weigh that value after fact A has been proved and before deciding whether fact B has been proved. If the law of evidence contains a provision that provides for a rebuttable presumption—stating that, on proof of fact A, fact B shall be deemed proved unless the contrary is established—the purpose of the rule is to regulate the judicial process of evaluating evidence. Specifically, the rule directs that the judge must draw the inference that fact B is proved from the proof of fact A, unless evidence to the contrary is presented.
In other words, the rule removes the judge’s discretion to decide whether to attach probative value to fact A; it obliges the judge, on a prima facie basis, to attach that value in order to infer the existence of fact B, subject, of course, to the possibility that the presumption may be rebutted by contrary proof. The Court quoted Thayer, observing that “presumptions are aids to reasoning argumentation, which assume the truth of certain matters for the purpose of some given inquiry. The exact scope and operation of these prima facie assumptions are to cast upon the party against whom they operate the duty of going forward, in argument or evidence, on the particular point to which they relate. They are thus closely related to the subject of judicial notice; for they furnish the basis of many of those spontaneous recognitions of particular facts or conditions which make up that doctrine.” The Court further noted that, according to the same author, rebuttable legal presumptions define the quantity of evidence or the state of facts that is sufficient to establish a prima facie case, thereby indicating the circumstances under which the burden of proof shifts to the opposite party.
The Court explained that a rebuttable presumption enables a party to establish a prima facie case, meaning that the burden of proof shifts to the opposite party to disprove the presumed fact. In doing so, the rule of rebuttable presumption confers statutory authority on the natural and inherent evidential value of fact A when it is used to prove the existence of fact B. By adding this statutory weight to the probative force of fact A, the rule, as acknowledged, operates within the scope and function of the law of evidence. The Court then questioned whether, in principle, it mattered if the rule were to give conclusive strength to the evidential value of fact A for proving fact B, suggesting that the essential character of the presumption remained the same.
Regarding facts for which an irrebuttable presumption is prescribed by a rule of evidence, the Court observed that the inherent evidential value of fact A is already very great. When such a fact is proved in a judicial proceeding, the judge normally places great importance on it for establishing fact B. The rule, in these circumstances, instructs the judicial mind to treat the fact as conclusive in its probative effect. The Court noted that both rebuttable and irrebuttable presumptions aim to assist the judge in recognizing the existence of facts. In a rebuttable presumption, the statutory enhancement of probative value remains subject to challenge; in an irrebuttable presumption, the statutory enhancement is absolute and not open to rebuttal. From this perspective, the Court found it difficult to accept the view that a rebuttable presumption belongs to the law of evidence while an irrebuttable presumption falls outside that domain and becomes part of substantive law.
In the case of D. B. Heiner v. John H. Donnan ((1932) 76 aw. Ed. 772, 780), the United States Supreme Court examined a federal statute that imposed a death‑transfer tax on transfers made within two years before a decedent’s death, deeming such transfers to have been made in contemplation of death. The Court held that this statutory provision violated the Due Process Clause of the Fifth Amendment. The argument before the Court partly focused on whether the irre‑
In the case under discussion, the Court held that the statutory rule in question functioned as a rule of evidence, and consequently it infringed the constitutional guarantee contained in the Fifth Amendment. The Court rejected the State’s contention that the rule should be classified as a rule of substantive law. Justice Sutherland observed 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 view, he referred to earlier decisions of the Court that had treated similar presumptions as evidentiary rules. He further explained that it is difficult to imagine how a statutory rebuttable presumption could be transformed into a rule of substantive law merely because a later statute makes the presumption conclusive. In both situations the presumption substitutes for direct proof; in the former the substitute is open to challenge and can be disproved, while in the latter it is conclusive and cannot be rebutted. Justice Sutherland emphasized that, irrespective of whether a presumption is characterised as evidential or substantive, it represents a legislative effort to create a factual situation that does not actually exist, and the result is the same unless the Court were prepared to over‑rule the decision in Schlesinger, which it was not. The Schlesinger case had addressed a conclusive presumption and declared it invalid without focusing on its technical classification. Accordingly, the observations made by Justice Sutherland on the nature of an irrebuttable presumption provided assistance to the argument presented on behalf of the Union of India.
The Court also considered the argument that a conclusive presumption, by preventing a party from disproving an inference about the existence of fact B that is drawn from proof of fact A, ought to be treated as a rule of substantive law. The Court held that such a characteristic does not alter the rule’s classification as evidence law. As an illustration, the Court referred to the doctrine of estoppel, which is firmly situated within the law of evidence. When the essential elements of estoppel are satisfied, a party is barred from denying the truth of a statement, act or omission that he intentionally caused or permitted another to believe. Although estoppel creates a bar against the party’s ability to prove the falsity of the matter, the rule itself remains an evidential rule. Thus, the mere existence of a bar that prevents a party from proving or disproving a fact inferred from another does not make the rule part of substantive law. The Court further rejected the contention that the rule extinguishes citizenship and therefore belongs to substantive law, describing the rule as merely establishing that when one fact is proved—namely, that an Indian citizen obtained a foreign passport on a specific date—an irrebuttable presumption follows that the citizen has acquired the foreign citizenship. This is precisely an inference from fact A to fact B, and the Court indicated it would later examine the probative value of fact A for establishing fact B. Finally, the Court noted that hypothetical arguments about potential hardship or injustice arising from the rule were not relevant to the legal analysis.
In this matter, the Court observed that the contention that the present case extinguished the status of citizenship and therefore formed part of substantive law was unpersuasive. The Court explained that the rule under discussion essentially provided that when one fact was established, another fact would be deemed to have been established. The fact that had been established was that an Indian citizen had obtained a passport from a foreign government on a specific date. From that fact, the rule imposed an irrebuttable presumption that the act of obtaining the foreign passport signified the acquisition of citizenship of the foreign state. This situation required a logical inference from the proof of fact A—the possession of the foreign passport—to the existence of fact B—the voluntary acquisition of citizenship of that foreign state. The Court indicated that it would later consider the inherent probative and persuasive value of fact A in relation to fact B. It also rejected the argument that the application of the rule might, in some hypothetical circumstances, lead to hardship or injustice, holding that such considerations were irrelevant to the question of the rule’s constitutional validity.
The Court then set out the proper approach for determining whether a rule creating an irrebuttable presumption should be classified as a rule of evidence. It stated that the first step was to examine whether fact A, from which a presumption about fact B was drawn, was inherently relevant to the proof of fact B and whether it possessed any probative or persuasive value for that purpose. If fact A was inherently relevant to establishing fact B and a rational mind would regard it as possessing probative or persuasive force, then a rule prescribing either a rebuttable or an irrebuttable presumption would be a rule of evidence. Conversely, if fact A was inherently irrelevant to the proof of fact B or lacked any probative value, yet a rule nevertheless prescribed a rebuttable or irrebuttable presumption, then such a rule would be classified as a rule of substantive law rather than a rule of evidence. Accordingly, the Court held that it could not adopt a blanket view that every rule prescribing an irrebuttable presumption was automatically a rule of substantive law. The classification required a careful examination of the rule and its impact on the proof of facts A and B. Applying this test, the Court indicated that it must inquire whether obtaining a passport from a foreign government was inherently relevant to proving the voluntary acquisition of citizenship of that foreign state. The Court noted that the petitioners had conceded that a passport obtained from the Government of Pakistan was at issue in the present proceedings.
The Court observed that obtaining a passport from the Government of Pakistan would unquestionably be relevant to the question of whether the petitioners, by acquiring that passport, had become citizens of Pakistan. It was pointed out that at times an argument had been raised and even accepted that such a passport was irrelevant to the enquiry into the acquisition of Pakistani citizenship. The Court declared that this view was plainly incorrect. The Court then turned to the definition of a passport. It quoted the definition given by Lord Alverstone, C. J., in the case of R. v. Brailsford ((1905) 2 K.B. 730), a definition that had later been adopted by the House of Lords in the Joyce case ((1946) A.C. 347). The definition 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 further referred to the commentary of P. Weis, who explained 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 added that the United States has repeatedly 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 then examined the argument that a passport might be irrelevant to a citizenship enquiry. It noted that reliance is sometimes placed on the observations of Mr. Justice Thompson in the case of Domingo Urtetiqui v. John N. D’arcy, Henry Didier and Domingo D’Arble ((1835) 9 Law Ed., 692). Thompson J., speaking for the United States Supreme Court, had 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 stressed that a fuller reading of that judgment showed that the judge later made clear, in the later part of his opinion, that the court itself was divided on the issue and that the point remained undecided. Consequently, the Court held that the early, general observation could not be relied upon as authoritative in the present matter. The Court illustrated the point by describing the facts of the cited case: the plaintiff had produced a passport issued by the United States Secretary of State to prove his citizenship of the State of Maryland, while the defendant introduced as evidence a record from the United States District Court for the District of Louisiana showing that the plaintiff had been sued on the allegation that he was an alien. The Court concluded that the record from the district court was considered more reliable than the passport, thereby underscoring that a passport, although helpful, is not conclusive proof of citizenship.
In that part of the dispute, the Court observed that the two pieces of evidence presented by the parties were a passport issued by a foreign authority and a record of a district court proceeding. The Court found that the district‑court record was judged to be more reliable than the passport. Accordingly, the Court agreed with the petitioners’ counsel when he acknowledged that the passports obtained by the petitioners were material for determining whether the petitioners had acquired the citizenship of Pakistan. Applying the appropriate test for such questions, the Court concluded that the rule being contested was a rule of evidence rather than a rule of substantive law. The mere fact that a person had obtained a Pakistani passport created a conclusive presumption that the person had voluntarily acquired Pakistani citizenship; the rule in question simply gave that presumption decisive probative value. Because the rule operated only to determine the evidential weight of the passport, the Court was not persuaded by the petitioners’ objection that the rule was substantive and therefore lay outside the scope of section 9(2). The Court held that, if the rule was properly characterised as a rule of evidence, it fell within the authority conferred on the Central Government by s. 9(2) and could not be successfully challenged on the ground of substantive invalidity.
The Court then turned to a single authority that the petitioners relied upon to support their argument that the rule was substantive. The petitioners cited the decision In re KOHN ((1945) Ch. D. 5). In that case, a mother and her daughter, both German nationals domiciled in Germany, were killed in the same explosion during an air raid on London, and it could not be proven which of them died first. The daughter’s right to inherit movable property under her mother’s will depended on her surviving her mother. The Court of Appeal held that, according to the relevant provision of the German Civil Code, the deaths were presumed to have occurred simultaneously, so the daughter was not regarded as living at the moment the succession opened and therefore could not inherit. By contrast, section 184 of the English Law of Property Act, 1925 provided that where the order of death between two or more persons was uncertain, the deaths were to be presumed, for all purposes affecting title to property, to have occurred in order of seniority, meaning the younger was deemed to have survived the elder. The appellate court characterized both the German provision and the English provision as rules of substantive law because each provision dictated a presumption that directly affected the legal rights to property. The Court noted that the English provision was situated within the Law of Property Act, and its context showed it to be a substantive rule. Likewise, Article 20 of the German Civil Code was treated as a substantive rule. The Court therefore concluded that, while the rulings in In re Kohn dealt with substantive statutory presumptions affecting property rights, the rule under consideration in the present case operated only to assign evidential weight to a passport and therefore did not fall within the same category.
The Court noted that the Civil Code of Germany was regarded as a rule of substantive law. It explained that the principal reason for concluding that both the German rule and the English rule were substantive was that each mandated a specific presumption to be applied in every case concerning title to property. The Court observed that the scope, purpose and effect of those two rules differed markedly from the scope, purpose and effect of the rule presently before it. In the rules considered by the Court in re‑Cohn, there was no issue regarding the evidential value of one fact being judged under a statutory provision in order to prove the existence of another fact. The Court likened those rules to the principle that ignorance of law is no excuse, describing them as clearly substantive rules. Consequently, the Court held that the judgment of Uthwatt J. in re‑Cohn offered little assistance for the matter at hand. It further explained that the occurrence of simultaneous death of two persons was neither logically nor inherently relevant to, nor did it possess any intrinsic evidentiary weight in, establishing the sequence of the two deaths; therefore, the provisions in the two statutes were rightly characterized as substantive rather than evidential. The Court then turned to the practical dimension of the rule under consideration, focusing on the procedure required in Pakistan for obtaining a passport to travel to India. It stated that one of the objectives of the relevant Act was to address the emergency created by the partition of India and Pakistan, and that the applicable rules were primarily intended for Indian nationals who, upon travelling to Pakistan, sought a passport from the Pakistani government. The Court affirmed that, under Pakistani law, a person could not apply for or be issued a passport unless he was a citizen of Pakistan as defined by the Pakistani Citizenship Act. Moreover, the prescribed application form required the applicant to declare that he was a Pakistani citizen, and that declaration had to be accepted by the Pakistani authorities before a passport could be issued. In the process of ascertaining the applicant’s citizenship, statements by Pakistani officials attesting to the truth of the applicant’s declaration were also required to be filed. Accordingly, the Court observed that the procedure prescribed by Pakistani law made it unmistakably clear that a passport application had to be made by a Pakistani citizen, had to contain a declaration to that effect, and that the truth of the declaration had to be satisfied to the satisfaction of Pakistani officials before the passport could be granted.
When a passport is obtained under the procedure described, the Pakistani Government could not reasonably dispute that it would be entitled to treat the applicant as a citizen of Pakistan. Consequently, that citizen would be prevented from asserting to the Pakistani Government that the declaration he made concerning his citizenship status was false. In the present case, the rule that was challenged required that the issuance of a Pakistani passport to an Indian national, which ordinarily results from a voluntarily filed application, would conclusively demonstrate that the individual had voluntarily acquired Pakistani citizenship. The Court found that it would be untenable to say that such a rule does not operate as a rule of evidence. It would be overly pedantic and unrealistic to argue that the rule does not aim to evaluate the evidentiary value of one fact in order to prove another, yet instead imports considerations belonging to substantive law. Accordingly, the Court concluded that the impugned provision is indeed a rule of evidence and falls within the class of rules covered by section 9(2). Accordingly, a challenge to its validity on the basis that it is a rule of substantive law could not succeed.
Beyond this doctrinal analysis, the Court noted an additional independent reason supporting the same conclusion. The matter required interpretation of the expression “rules of evidence” in section 9(2) of the Act, and such interpretation must take into account the legislative history of that expression in Indian law. The Indian Evidence Act of 1872, under section 4, identified as rules of evidence those provisions that prescribe a presumption that may be drawn, a presumption that is subject to rebuttal, and a presumption that is conclusive. Sections 41, 112 and 113 of that Act illustrate conclusive presumptions. The same type of provisions appeared in Stephen’s draft of the Law of Evidence, where he expressed the view that these presumptions form part of the law of evidence. Hence, since 1872, Indian jurisprudence has accepted that a conclusive presumption constitutes part of the law of evidence. Keeping this principle in mind, the Court turned to the meaning of “evidence” as it appears in the relevant entries of the Seventh Schedule of the Government of India Act 1935 and the Constitution. Entry 5 of List III in the earlier Act reads “Evidence and oaths; recognition of laws, public acts and records and judicial proceedings,” and Entry 12 of the concurrent List in the Constitution contains the same wording. It is well established that when a legislature is given power to enact on a particular subject, the scope of that power must be understood according to the usual legislative treatment of that subject, as reflected in the legislative practice of the enacting State.
The Court explained that, when interpreting a legislative power, it is necessary to consider what matters are ordinarily regarded as falling within the subject‑matter of that power in normal legislative practice, and especially in the practice of the State that has granted the power. In support of this principle of construction, the Court cited the case reported in 1933 A.C. 156 at page 165 and the commentary of Croft Dunphy. A further illustration of this rule was found in the Federal Court’s decision in The Central Provinces and Berar Act No. XIV 1938, reported in 1939 F.C.R. 18 at page 3. In that case, dealing with the meaning of the term “excise”, Chief Justice Gwyer observed that Parliament must be presumed to have had Indian legislative practice in mind and, unless the context clearly requires otherwise, Parliament would not have conferred a legislative power intended to be understood in a way that those to whom the Act applied would not comprehend.
Consequently, the Court held that there can be no doubt that the expression “rules of evidence”, when read in the context of Indian legal and legislative history, necessarily includes certain rules of conclusive proof. If this is so, it would be futile to argue that the rule under challenge forms part of substantive law merely because it creates a conclusive presumption. The Court further stated that accepting such an argument would compel it to adopt an overly academic or pedantic interpretation of the words “rules of evidence”, as suggested by the petitioners. In reality, the phrase “rules of evidence” unquestionably embraces a rule relating to a conclusive presumption such as the one that is the subject of the present petitions. Accordingly, on this construction of section 9(2), the rule that has been impugned must be held to be within the legislative competence of the authority, that is, intra vires.
The Court then turned to the question of the rule’s validity as examined by various High Courts in India. It noted that the Andhra Pradesh High Court (A.I.R. 1957 Andh. 1047) and the Allahabad High Court had held the rule to be invalid, whereas the Bombay High Court (A.I.R. 1958 Bom. 1422), the Rajasthan High Court and the Madras High Court had upheld its validity.
Next, the Court considered the validity of section 9(2) itself. It observed that the petitioners argued that the rule was ultra vires because it affected the citizenship status conferred upon them and recognized by the relevant constitutional articles, and that by depriving them of citizenship, their fundamental rights under Article 19, especially the right guaranteed by Article 19(1)(e), were infringed. The Court found this argument difficult to accept. It reiterated that the scheme of the constitutional provisions in Part II, which deal with citizenship, clearly indicates that the status of citizenship may be adversely affected by a statute enacted by Parliament in the exercise of its legislative powers. While this may prima facie appear surprising, the Court affirmed that, although Indian citizens are guaranteed the fundamental rights enumerated in Article 19, the very status of citizenship on which those rights depend is itself not a guaranteed fundamental right.
It was observed that citizenship is not itself a fundamental right guaranteed to any person. Consequently, when Parliament validly enacts a law that alters the citizenship status of a person, the mere fact that such a law affects the fundamental rights of the individual whose citizenship is thereby terminated does not render the law invalid. Article 19 is predicated on the assumption that any person who invokes its guarantees is a citizen of India. Accordingly, if a parliamentary statute lawfully terminates a person’s citizenship, that person can no longer invoke the rights protected under Article 19. On that basis, the Court held that the challenge to section 9(2) on the ground that it empowers the rule‑making authority to deprive the petitioners of citizenship could not be sustained. The next issue raised by the petitioners concerned the alleged grant by section 9(2) of an unfettered and arbitrary power to the Central Government to make rules without any guiding principles, which they claimed amounted to an excessive delegation of legislative authority. The Court found no merit in that contention. Section 9(1) already provides that any Indian citizen who obtains naturalisation in a foreign state 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 a manner other than by naturalisation or registration; hence it introduced a third category, expressed as “otherwise voluntarily acquires,” to confine rule‑making primarily to that residual category. The underlying principle of the Act, as recognised by Article 9 of the Constitution, is that an Indian citizen cannot possess dual or multiple citizenships. When foreign citizenship is obtained—whether by naturalisation, registration, or the “otherwise” category—the original Indian citizenship ceases. In light of these overarching principles evident in the Act, the power to make rules was intended to address only those cases falling within the “otherwise” category of foreign citizenship acquisition, and the existing rules demonstrate how this task has been undertaken. The Court noted that rules 1 to 3 have already been referenced, while rules 4 and 5, which deal with situations other than the acquisition of a passport by an Indian citizen, set out the relevant factors that must be examined in each case to determine whether an Indian has acquired foreign citizenship. Moreover, the impugned rule 3 is based on the premise that the conditions prescribed by Pakistan law for obtaining a Pakistani passport bring the situation of passport acquisition very close to the scenario contemplated under the “otherwise” category.
In examining the statutory framework of the Citizenship Act and the principles articulated in its pertinent sections, the Court observed that the enactment of section 9(2) did not constitute an abdication of the Legislature’s essential law‑making power. The Court explained that the delegation of authority to a rule‑making body for the purpose of framing detailed regulations was a permissible exercise of legislative discretion, given that the primary policy choices and the overall scheme remained firmly within the domain of Parliament. Consequently, the Court held that section 9(2) was constitutionally valid and could not be struck down on the basis of a purported surrender of legislative function. On that basis, the petitions seeking to invalidate section 9(2) were dismissed, and the Court expressly declined to make any order as to costs. The three writ petitions that were pending before the Court involved the same question of law, and the factual particulars underlying each petition were identical and undisputed. Because the legal issues were common and the facts were substantially the same, the Court decided it would be expedient to deal with all three petitions in a single proceeding. For the purpose of illustrating the factual background, the Court elected to adopt the facts set out in writ petition number 88 of 1961 as the representative case on which its discussion would be based.
The petitioner in that representative writ, identified as Habib Hidayatullah, asserted that he continued to be a citizen of India and therefore invoked his fundamental right under article 19 of the Constitution, claiming that the actions of the Union of India and the State of Maharashtra threatened that right. It was not contested that on 26 January 1950 he possessed Indian citizenship and that, in that capacity, he obtained a Haj passport for the purpose of undertaking the pilgrimage. According to his own narrative, he departed from Bombay on 5 April 1950 and sailed to Basra in Iraq, where he remained for three years engaged in a business undertaking. He subsequently travelled to Karachi on 2 May 1953 accompanied by his brother, who required medical treatment. Upon arrival in Karachi, the Pakistani authorities seized his Indian travel documents, thereby depriving him of the papers that evidenced his Indian citizenship. Between the years 1954 and 1957 he made a series of petitions to the Indian High Commission in Karachi requesting assistance that would enable his return to India, but those petitions failed to secure any help. In the absence of any viable alternative, on 14 December 1957 he obtained a passport issued by Pakistan and used that passport to return to India, stating that the passport was obtained solely because it was the only practical means of bringing his ailing brother back to India and that he harboured no intention of renouncing his Indian citizenship or of acquiring Pakistani citizenship. After re‑entering Indian territory, he repeatedly appealed to the Indian authorities to recognise him as an Indian citizen, to register him accordingly, and to permit him to reside permanently in India. Those appeals were ultimately refused, leaving him exposed to the prospect of deportation. Confronted with the danger of being removed from the country, he approached this Court seeking an order that the Union of India and the State of Maharashtra refrain from taking any steps to deport or otherwise remove him and that they recognise him as a citizen of India by birth in accordance with article 5(1)(a) of the Constitution.
After the preliminary hearing, the Court issued an order that the petitioner could either approach the Government under section 9(2) of the Citizenship Act or wait for the Government to act on its own initiative under that provision. Following that order, both the Union of India and the State of Maharashtra entered their appearances and contested the petition for a stay. Their objection was founded on the claim that the petitioner was no longer an Indian citizen. Consequently, the Government of India exercised the power granted by section 9(2) and issued an order determining that the petitioner had voluntarily taken up the citizenship of Pakistan at some time after 26 January 1950 and before 14 December 1957. In reaching this conclusion, the Government’s order specifically relied on the fact that the petitioner had, before the Pakistani authorities, declared himself to be a citizen of Pakistan and had obtained a Pakistani passport on 14 December 1957.
Section 9 of the Citizenship Act provides that any Indian citizen who, by naturalisation, registration or any other means, voluntarily acquires the citizenship of another country between 26 January 1950 and the commencement of the Act, shall, at the moment of such acquisition, cease to be an Indian citizen; this provision does not apply during any war involving India unless the Central Government directs otherwise. Sub‑section (2) adds that any question concerning the manner or timing of a person’s acquisition of foreign citizenship shall be decided by the authority specified by rules of evidence prescribed for that purpose. Under Rule 30 of the Citizenship Rules 1956, framed by the Central Government pursuant to section 18 of the Citizenship Act, the Central Government itself is the authority designated to determine such questions for the purposes of section 9(2), and it must do so in accordance with the evidentiary rules set out in Schedule III. Schedule III contains five rules, and rule 3 states that the fact that an Indian citizen has obtained a passport from any foreign government on any date is conclusive proof that he voluntarily acquired that foreign citizenship before that date. Accordingly, if the Central Government’s order, made under section 9(2), is valid, the petitioner, by operation of section 9(1), has ceased to be a citizen of India.
The Court observed that the petition could not succeed because the petitioner’s claim depended on an order of the Central Government that declared the petitioner to have voluntarily acquired the citizenship of Pakistan after 26 January 1950. The petitioner argued that this order lacked legal effect because it was based on Rule 3 of Schedule III of the Citizenship Rules, and that the rule itself was void. The central issue before the Court was therefore the validity of Rule 3. The petitioner contended that, although section 9(2) of the Citizenship Act authorises the Government to prescribe rules of evidence, Rule 3 is not a rule of evidence but a substantive rule, and consequently it exceeds the authority that the legislature delegated to the rule‑making body. The petitioner further maintained that a proper distinction must be drawn between a genuine rule of evidence and a rule that, while labelled as a rule of evidence, actually imposes a substantive legal consequence. In the petitioner’s view, once that distinction is appreciated, it becomes evident that Rule 3 does not qualify as a rule of evidence. Additionally, the petitioner argued that when a rule declares a certain fact to be conclusive proof of another fact, the rule in effect equates the occurrence of the first fact with the occurrence of the second in law, thereby barring any party who wishes to challenge the second fact from presenting relevant evidence. The Court then turned to a broader discussion of the nature of law. It noted that every law serves the State’s function of granting rights and imposing liabilities on individuals. Some laws primarily create, modify, or extinguish those rights and liabilities; such laws are classified as substantive laws. Other laws are concerned with determining, in each specific case, how those rights or liabilities have arisen or been terminated; these are termed adjective laws. Adjective laws are divided into two branches: procedural rules governing court proceedings and, in the strict sense, rules of evidence, which are also procedural. The distinction between substantive and adjective law is well settled in jurisprudence, although occasional confusion has arisen when writers fail to maintain the separation. The Court recalled that as early as the beginning of the nineteenth century, Bentham, in his “Rationale of Judicial Evidence,” criticized the tendency of many commentators to treat rules of civil and criminal law as rules of evidence. Bentham observed that what lawyers often present under the heading “law of evidence” is largely civil and penal law. Since Bentham’s time, significant progress has been made, and numerous eminent jurists have emphasized the importance of distinguishing genuine rules of evidence from those that, although styled as such, operate as substantive legal rules.
In this discussion the Court referred to statements made by Mr. Justice Holmes in his work titled Common Law. Holmes observed that if a court were to rule that certain acts or omissions, when coupled with damage, constituted conclusive evidence of negligence unless the party offered an explanation, then, in substance, the court would actually be deciding that those acts or omissions formed a ground of liability or, alternatively, that they barred a recovery, depending on the circumstances. The Court then cited Professor Thayer, who wrote in his Preliminary Treatise on Evidence that it was fundamental to recognise that not every determination to admit or exclude evidence fell within the law of evidence, and that the larger portion of such determinations lay outside that field. The Court further quoted Professor Wigmore from his Treatise on Evidence, noting that Wigmore declared that permitting a fact to become a proposition was not an evidentiary process. Wigmore illustrated his point with an example involving a battery action on a plea of not guilty: the defendant offered evidence that the plaintiff had used insulting words before the assault, and the court rejected that evidence. According to Wigmore the rejection meant that the alleged insults did not provide an excuse or a basis for reducing damages, which represented a rule of substantive law, or perhaps indicated that such a defence was unavailable under the pleading doctrine. He emphasised that this was not a decision concerning a question of evidence; rather, it was a determination that the proposition the party sought to prove was either unsustainable under substantive law or inadmissible under the law of pleading. 56. This reasoning formed the basis of Wigmore’s view expressed in section 2492 of volume IX of his treatise, where he argued that rules laying down conclusive presumptions were, in reality, rules of substantive law. Wigmore asserted that, in strict terms, a “conclusive presumption” could not exist. Whenever a rule declared that the existence of a second fact was conclusively presumed from a first fact, such that the opposing party could not introduce any evidence to deny the second fact, the rule effectively made the existence of the second fact immaterial to the proponent’s case. According to Wigmore, this constituted a substantive rule rather than a rule that allocated the burden of persuasion or altered the duty to produce evidence.
The Court then turned to the writings of Professor Holdsworth in his History of English Law, noting that Holdsworth, after tracing the development of presumptions by courts and legislatures, expressed a similar opinion on page 139 of volume IX. Holdsworth observed that the law concerning various presumptions had become a confused and heterogeneous collection of rules spanning many legal topics, and that when courts or legislatures treated these presumptions as conclusive, they could no longer be regarded as part of the law of evidence but were instead rules of substantive law. Holdsworth further commented on page 143 that rebuttable presumptions of law, although primarily belonging to particular branches of substantive law, were still connected with the adjective branch concerned with evidence.
In the discussion, the author explained that the rules dealing with presumptions, although they relate to the portion of the adjective law that concerns evidence, are in fact more appropriately classified as part of substantive law in the present day. The author observed that irrebuttable presumptions of law, unlike ordinary evidential rules, belong chiefly to substantive law. Nevertheless, these substantive rules use the language and appearance of the evidential branch that deals with presumptions. Historically, such irrebuttable presumptions originated at a time when the legal system had not yet developed the modern concept of a trial based on the examination of evidence presented by opposing parties. At that earlier stage, the law sought a conclusive proof that could finally resolve a dispute. Consequently, the author 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 treated all conclusive presumptions as rules of substantive law, Phipson adopted a more cautious stance. In his treatise, Phipson stated that many conclusive presumptions are rules that properly belong to various branches of substantive law rather than to the law of evidence, giving examples such as the presumption that a child under seven years of age cannot commit a felony and the presumption that everyone knows the law, meaning that ignorance of the law does not excuse criminal conduct. Phipson listed several instances of conclusive presumptions created by statute or common law, but, unlike Wigmore and Holdsworth, he stopped short of declaring that every conclusive presumption is a rule of substantive law. The matter was examined again by Sir James Stephen in his Digest of the Law of Evidence. Stephen first distinguished substantive law, which defines rights, duties and liabilities, from procedural law, which applies substantive rights to particular cases. He described the law of evidence as a component of procedural law that determines, for individual cases, which facts may be proved, what type of evidence is required for a provable fact, and who must present that evidence and in what manner. Regarding presumptions, Stephen noted briefly that they belong to different branches of substantive law and are difficult to understand apart from those contexts. He illustrated this point with the presumption that everyone knows the law, explaining that the true meaning of this rule is that, generally, ignorance of the law is not accepted as an excuse for breaking it, and that this rule is more appropriately placed within criminal law rather than the law of evidence.
In the discussion, the Court explained that, as a general principle, a person’s ignorance of the law was not regarded as a defence for violating it. The Court noted that this principle could not be properly understood if it were classified as part of the law of evidence; instead, it belonged to criminal law. In a similar manner, the Court observed that many presumptions concerning property rights—such as those relating to easements and incorporeal hereditaments—were not matters of evidence law but were matters of real‑property law.
After making these observations, the learned author distinguished a class of conclusive presumptions that, in his view, could rightly be placed within the law of evidence. He stated that only those presumptions that dealt with facts purely as facts, and that were independent of the specific rights those facts might create, should be included in evidence law. For example, he cited the rule that a person not heard of for seven years was presumed dead. He argued that this presumption could equally apply to disputes about the validity of a marriage, to an ejectment action by a reversioner against a tenant pur autre vie, to the admissibility of a declaration against interest, and to many other contexts. After careful study, he said he had placed a few such presumptions in a dedicated chapter and had treated the remaining presumptions as belonging to other branches of substantive law.
The Court then explained that, according to the learned author, rules of conclusive presumptions that helped to determine rights in various substantive‑law domains could be regarded as evidential rules. The Court added that it was unnecessary, for the present case, to decide whether every rule that makes one fact conclusive proof of another constituted substantive law. However, the Court clarified that whenever a question arose about whether a particular rule was substantive or evidential, the inquiry should focus on the rule’s purpose. If the rule aimed to create, extinguish, or modify a right or liability, it was a rule of substantive law; if the rule merely sought to reach a conclusion about what had occurred under existing substantive law, it was a rule of evidence.
The Court further explained that a rule of evidence concerned only the manner and extent of presenting facts so as to persuade the mind of a judge, jury, or other tribunal of the existence or non‑existence of facts on which substantive civil or criminal rights or liabilities depended. Such a rule did not answer the question of what right or liability arose from a fact. If a rule claimed to be evidential but actually answered that question, the Court held that it had overstepped the bounds of evidence law and intruded into substantive law. Finally, the Court noted that, on behalf of the respondent, an argument had been advanced that…
In this case, it was argued that even if a rule declares that one fact constitutes conclusive proof of another, such a rule could be treated as a rule of substantive law only when the first fact is wholly irrelevant to persuading a reasonable mind of the existence of the second fact. The argument continued that the situation changes when the first fact is “relevant,” meaning that it possesses some persuasive value in the ordinary process of reasoning. The respondents maintained that when a rule declares a relevant fact to be conclusive proof of the fact to be proved, the law is simply assigning a hundred percent persuasive value to that fact, whereas without the rule its persuasive weight might be lower. They contended that a rule of this kind should therefore be regarded as a rule of evidence, just as a rule that merely declares a fact to be relevant – i.e., to have some persuasive effect – is always treated as a rule of evidence. The Court found this line of argument wholly mistaken and based on a misunderstanding of the function of the law of evidence. The Court explained that the law of evidence does not tell the judge how much value any particular item should have. Its role, apart from indicating who bears the burden of proof and how documents and oral testimony may be presented, is to decide which of the innumerable facts that, according to ordinary reasoning, have varying degrees of influence on the human mind may be admitted as evidence. When a rule states that a fact is relevant for proving an issue, it merely permits the court to admit evidence of that fact. However, when a rule goes further and declares that the relevant fact will be conclusive proof of the fact in issue, thereby giving rise to a specific right or liability, the rule is directly affecting a substantive right or liability rather than merely providing a method of proof. Consequently, a rule of conclusive presumption that is intended to affect a particular substantive right is itself a rule of substantive law, and it does not lose that character simply because the conclusive presumption rests on a fact that is relevant. The critical question, therefore, is not whether the fact is relevant, but whether the rule is aimed at creating, extinguishing, or modifying a substantive right or merely at furnishing a method of proof. When the purpose of a rule of conclusive presumption is to cause the judge to hold that a specific right or liability exists or does not exist, the rule is effectively stating that this particular
In the Court’s view, a fact that is relevant to a case may act to create, extinguish, or alter a legal right or liability. Consequently, when a rule of conclusive presumption is used solely to establish or disestablish a particular substantive right, the effect of that rule is to influence the right itself, and it therefore no longer functions merely as a rule of proof. The Court further explained that estoppel, although commonly described as a rule of conclusive presumption, has consistently been classified as a branch of the law of evidence. The Court asked whether this classification automatically means that every rule of conclusive presumption must be a rule of evidence. It noted that only some such rules fall within the domain of evidence and that estoppel belongs to that subset. Referring to Halsbury’s Laws of England, third edition, volume XV, page 168, the Court quoted the definition of estoppel: “There is said to be an estoppel where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it is true or not.” This definition shows that estoppel concerns a statement of fact and is not intended to affect any specific substantive right, even though, in practice, it inevitably influences certain rights as do all evidential rules. Accordingly, the Court held that, so long as estoppel is not designed to affect substantive rights, it remains a rule of evidence, and the mere fact that estoppel is an evidential rule does not prove that every conclusive presumption is an evidential rule. Turning to the provision under challenge, the Court described the impugned rule as one that declares the fact that an Indian citizen has obtained a passport from a foreign government on any date to be conclusive proof that the citizen voluntarily acquired that foreign citizenship before the date of passport issuance. The Court then referred to Section 9 of the Citizenship Act, Act No. 57 of 1955, which 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. The Court observed that this provision is undeniably substantive law, as it expressly states that the voluntary acquisition of foreign citizenship by an Indian citizen results in the loss of Indian citizenship. Under sub‑section 2 of Section 9, the determination of whether a person has acquired foreign citizenship is assigned to a prescribed authority, which must act in accordance with prescribed rules of evidence. The Court noted that, in ordinary circumstances, such evidential rules govern matters such as the allocation of the burden of proof, the permissible modes of presenting evidence, the rights to examination and cross‑examination, and the selection of facts that may possess persuasive value. In addressing the burden of proof, the Court indicated that these evidential rules play a crucial role in guiding the authority’s assessment of the facts surrounding the alleged voluntary acquisition of foreign citizenship.
It was observed that the evidential rules could legitimately create a rebuttable presumption based on certain facts that a person had voluntarily acquired the citizenship of another country. A rule that raises such a rebuttable presumption functions purely as a rule of evidence because its sole purpose is to shift the burden of proof; it is neither designed to alter nor does it alter any substantive right. Consequently, when the prescribed authority is called upon to decide the question, it must examine the facts that tend to persuade it that the individual has indeed voluntarily acquired foreign citizenship, as well as the facts that suggest the contrary, provided that the presentation of those facts is not prohibited by the prescribed evidential rules.
The Court then considered the situation that arises when the rule‑making authority introduces a provision stating that the mere obtaining of a passport of another country shall be taken as conclusive proof of the voluntary acquisition of that foreign citizenship. Under section 9, the voluntary acquisition of foreign citizenship results in the termination of the individual's Indian citizenship. Accordingly, a rule that treats the issuance of a foreign passport as conclusive evidence directly interferes with a substantive right, and within the framework of section 9 it must be regarded as being intended to affect that right. Such a provision cannot be classified as a rule of evidence; it is unmistakably a rule of substantive law.
Section 64 explains that, according to the impugned rule, the fact of obtaining a foreign passport will lead to the loss of Indian citizenship even if the person, although having voluntarily obtained the passport, has not actually acquired the citizenship of the foreign country for that purpose. For example, a person who is an Indian citizen by descent and simultaneously a citizen of another country, such as France by birth, may obtain a French passport from the French authorities. Similarly, each sovereign state retains the power to enact its own statutes. Imagine a foreign nation that permits the issuance of a passport to individuals who are not its nationals; if an Indian citizen obtains such a passport, the foreign law does not render him a national of that country, yet under the rule under consideration he would be treated as a foreign national. In either scenario, the ordinary reasoning process would not attribute any persuasive value to the passport as evidence that the individual has voluntarily acquired foreign citizenship. Nevertheless, under the impugned rule, possession of that passport by an Indian national results in the extinguishment of his Indian citizenship. This demonstrates that the impugned rule is a substantive legal rule, not merely a rule of evidence.
In a further attempt to preserve the rule, it was argued on behalf of the respondent that the provision should not be characterized as an irrebuttable presumption. The argument cited rule 30(2), which provides that the Central Government, when determining whether, when or how a person has acquired the citizenship of another country, “shall have due regard to” the evidential rules set out in Schedule III. The contention was that “shall have due regard to” allowed the Central Government discretion to consider, but not be bound by, those evidential rules.
The Court observed that Section 9 of the Citizenship Act directs the Central Government, when determining whether a person has acquired the citizenship of another country, to “have due regard to” the evidentiary rules set out in Schedule III. The phrase “shall have due regard to” was argued by the respondent to mean that the Government must normally consider those evidentiary rules but is not strictly bound by them. To support this view, the respondent cited the observations of Viscount Simon in the case of Ryots of Garabandho v. Zamindar of Parlakimadi ((1943) L.R. 70 I.A. 129, 168). The Court, however, found that citation unhelpful for interpreting the expression “shall have due regard to” in the present context. It explained that the meaning of those words can vary according to the surrounding circumstances, and that in the present situation the statutory provision explicitly directs the deciding authority to give effect to a rule that treats one particular fact as conclusive proof of another fact. Consequently, the Court held that it is untenable to suggest that the authority could ignore that rule and, despite the existence of a fact deemed conclusive proof, refuse to recognize the consequent fact. Moreover, the Court stated that a detailed analysis of the phrase “shall have due regard to” was unnecessary because, once the rule itself is declared void for being beyond the authority’s power to make, any decision that relied on that rule is automatically void.
The Court then turned to the earlier judgments of various High Courts on the validity of Rule 3 of Schedule III of the Citizenship Act. The Madras High Court, in Mohomed Usman v. State of Madras, and the Rajasthan High Court, in Ghaural Hasan v. State of Rajasthan (A.I.R. (1951) Raj. 173), had held the rule to be valid. In contrast, the Andhra Pradesh High Court, in Mohd. Khan v. Government of Andhra Pradesh (A.I.R. (1957) Andh. 1047), and the Allahabad High Court, in Sharafat Ali Khan v. State of Uttar Pradesh, declared the rule void. After reconsidering the arguments, the Court concluded that the reasoning of the Andhra Pradesh and Allahabad High Courts was correct. As a result, the Court found that Rule 3 of Schedule III is void, which consequently invalidates the Central Government’s determination that the petitioner voluntarily acquired Pakistani citizenship sometime after 26 January 1950 and before 14 December 1957. Finally, the Court addressed two further submissions. The first argued that Section 9 itself contravenes the Constitution because it infringes the right of citizenship. The Court dismissed this claim by observing that, even if citizenship is regarded as a fundamental right subject to reasonable doubt, Article 11 expressly empowers Parliament to legislate on the acquisition and termination of citizenship. Therefore, Section 9 falls squarely within the authority granted by Article 11. The next submission, which claimed that Section 9(2) confers an unguided power on the Government, was noted but not addressed in this portion of the judgment.
The Court examined the contention that section 9(2) of the Citizenship Act vested an unguided power in the Government and therefore amounted to an abdication of Parliament’s legislative authority under Article 11. It concluded that section 9(2) did not confer any such unguided power. The provision merely authorised the Government to establish an authority empowered to determine whether a person had acquired foreign citizenship. This function did not constitute subordinate legislation; rather, it enabled the Government to create a body to decide a question that the statute itself required to be decided. Regarding the power to frame rules of evidence, the Court observed that the statute supplied sufficient guidance. The Government’s authority was limited to framing rules of evidence, and the statute clearly specified that this was the only function permitted. Consequently, there was no ambiguity or excess in the power granted. The Court held that any extension of this authority beyond the making of evidentiary rules, as occurred in the present case, rendered the exercise of power invalid. The Court further noted that any difficulty in distinguishing a rule of evidence from other rules could not render the power to make evidentiary rules vague or overly broad. In order to dispose of the petitions, the Court found it necessary that the question of whether the petitioners had acquired foreign nationality be examined and decided by the Central Government in accordance with law, expressly excluding rule 3 of Schedule III of the Citizenship Rules, 1956, from consideration. The Court directed the Central Government to determine, following the applicable legal framework, whether the petitioners voluntarily acquired Pakistani citizenship after 26 January 1950. Upon receipt of the Government’s findings, the Court would continue with further hearing of the petitions. Finally, the Court affirmed the majority’s decision that the petitions failed, ordered their dismissal, and declined to award any costs.