State of Madhya Pradesh vs Peer Mohd. and Another

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

Court: supreme-court

Case Number: Criminal Appeal No. 12 of 1961

Decision Date: 28 September 1962

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha, K.N. Wanchoo, K.C. Das Gupta, J.C. Shah

In this case the Supreme Court of India rendered its judgment on 28 September 1962 in the matter titled State of Madhya Pradesh versus Peer Mohammad and another. The bench that heard the appeal comprised P B Gajendragadkar, Bhuvneshwar P Sinha, K N Wanchoo, K C Das Gupta and J C Shah. The petitioner was the State of Madhya Pradesh and the respondents were Peer Mohammad and an additional individual whose name was not recorded. The decision is reported in the 1963 All India Reporter at page 645 and also appears in the Supreme Court Reporter Supplement (1) page 429, with later citations in various law reports. The matters before the Court concerned the provisions of the Citizenship Act, 1955, Article 7 of the Constitution of India, and Section 14 of the Foreigners Act, 1946 as it is read with clause 7 of the Foreigner’s Order, 1948. The respondents, who were originally citizens of India, had left India for Pakistan sometime after 26 January 1950. They returned to India in 1956 using a Pakistani passport and a visa issued by the Pakistani authorities. After their visa expired they remained in India and were consequently prosecuted under Section 14 of the Foreigners Act for unauthorised and illegal over‑stay. The High Court acquitted them on the ground that they had not become foreigners by virtue of their departure after the Constitution came into force, and it held that the question of loss of Indian citizenship due to acquisition of Pakistani citizenship could not be raised before a court.

The State of Madhya Pradesh appealed, contending that Article 7 of the Constitution rendered the respondents non‑citizens because they had migrated to Pakistan after 1 March 1947. The Supreme Court held that Article 7 applies only to persons who migrated between 1 March 1947 and 26 January 1950, and therefore it did not affect the respondents’ status. The Court explained that the words “has migrated” in Article 7 refer exclusively to migration that occurred at the time the Constitution became operative, and the absence of the phrase “at the commencement of the Constitution” does not alter this meaning. The Court further observed that any acquisition of foreign citizenship after 26 January 1950 falls under the provisions of the Citizenship Act, 1955 and the rules made thereunder, and that the appropriate authority to determine such matters is the Central Government or its delegate, not a court of law. The decision cited the case of Izhar Ahmad Khan v. Union of India as a relevant authority. Consequently, the Court affirmed that the respondents had not ceased to be Indian citizens under Article 7 and that the question of their foreign citizenship was a matter for the executive, not for judicial determination.

On 28 September 1962, Justice Gajendragadkar delivered the judgment of the Court. The State of Madhya Pradesh had filed a charge‑sheet against Peer Mohammad and his wife, Mst. Khatoon, invoking section 14 of the Foreigners Act, 1946, together with clause 7 of the Foreigners Order, 1948. The charge‑sheet was presented before the First Class Magistrate at Burhanpur. The prosecution alleged that the two respondents entered India on 13 May 1956, travelling on a Pakistani passport and a visa that had been issued to them on 8 May 1956. They arrived in Burhanpur on 15 May 1956 and, even after the visa expired, continued to remain in the country. Consequently, on 14 May 1957 the District Magistrate of Burhanpur served them a notice requiring that they leave India on or before 28 May 1957. The respondents failed to obey the notice, and their unauthorised and illegal over‑stay rendered them liable under section 14 of the Foreigners Act and clause 7 of the Foreigners Order. The respondents contended that they were not foreigners because they were Indian citizens, having been born in Burhanpur and having been permanent residents of that place; they argued that the criminal proceedings were therefore misconceived. The prosecution countered that the respondents had left India for Pakistan sometime after 26 January 1950 and, under article 7 of the Constitution, could not be considered Indian citizens. In the alternative, the prosecution asserted that the respondents’ acquisition of a Pakistani passport had given them the citizenship of a foreign country and, under section 9 of the Citizenship Act, 1955, had consequently terminated their Indian citizenship. Before the learned Magistrate only the latter argument was pressed. The Magistrate held that the question of whether the respondents had lost their Indian citizenship under section 9(2) of the Citizenship Act was a matter for the Central Government and could not be adjudicated by a court. Accordingly, invoking section 249 of the Code of Criminal Procedure, the Magistrate ordered that the respondents be released and that the passport seized from them be returned after the expiry of any appeal period.

The State appealed the Magistrate’s order to the High Court of Madhya Pradesh. Before the High Court, the State urged that a fair and reasonable construction of article 7 should lead to the conclusion that the respondents could not be deemed Indian citizens and therefore were liable under section 14 of the Foreigners Act and clause 7 of the Foreigners Order. The appeal was heard by Judges Shrivastava and Naik. Judge Shrivastava expressed the view that article 7 did not apply to the respondents because they had left India for Pakistan after 26 January 1950, and thus they could not be classified as foreigners on that ground. (The reasoning of the other judge and any further deliberations are recorded in the subsequent portions of the judgment.)

In the appeal before the High Court of Madhya Pradesh, the learned judge Shrivastava held that Article 7 of the Constitution did not apply to the respondents because they had left India for Pakistan after 26 January 1950, and therefore they could not be characterized as foreigners on the basis of the prosecution’s allegation that their departure made them foreigners. By contrast, the learned judge Naik reached the opposite conclusion, asserting that the proved fact of the respondents’ departure after the specified date invoked Article 7, which consequently rendered them foreigners. Because the two judges differed, the matter was referred to a third judge, Newaskar. Judge Newaskar concurred with Judge Shrivastava, so that, by the majority view, Article 7 did not make the respondents foreigners. Regarding the alternative charge that the respondents had obtained a Pakistani passport and consequently lost their Indian citizenship under section 9(2) of the Citizenship Act, the High Court observed that that determination was exclusively within the jurisdiction of the Central Government, and that only after the Central Government decided against the respondents could the State proceed to expel them from India. The High Court appears to have interpreted the order of the trial magistrate as an acquittal and therefore set aside that order, while allowing the State to commence fresh proceedings against the respondents whenever it deemed necessary. The order of the magistrate in the original trial was issued under section 249 of the Code of Criminal Procedure. The present appeal before this Court is filed against the High Court’s decision, and the appellant has obtained a certificate of appeal from the High Court. It is noted that eleven other cases of a similar nature were tried together with the present case by the magistrate and were also considered by the High Court on appeal; the appeals in those companion matters are pending before this Court and will be decided in light of the ruling in the present appeal. Section 14 of the Foreigners Act provides that any person who contravenes any provision of that Act or any order made under it shall be punished as prescribed in the section. Clause 7 of the order framed under the Act mandates that every foreigner who enters India on a visa issued pursuant to the Indian Passport Act, 1920, must obtain from the designated Registration Officer a permit indicating the period for which the person is authorized to remain in India, and, unless the Central Government extends that period, the foreigner must depart before the permit expires. The prosecution’s case is that the respondents entered India on a visa, overstayed beyond the expiration of both the visa and the permit, and consequently are liable to be punished under section 14 of the Act and clause 7 of the order.

In applying section 14 of the Act together with clause 7 of the Order, the Court observed that liability could arise only if it was shown that the respondents were foreigners at the time they entered India. Clause 7 was intended to govern every foreigner who entered India in the manner described in the Order; consequently, the critical issue became whether the respondents qualified as foreigners when they first crossed the border. The prosecution advanced two separate grounds to establish that the respondents were foreigners on the relevant date. First, it argued that the respondents had left India for Pakistan after 26 January 1950, and therefore, under article 7 they could not be regarded as citizens of India at the time of their entry. Second, the prosecution suggested that the respondents had obtained passports issued by the Government of Pakistan, which, according to section 9(2) of the Citizenship Act, would have caused them to lose Indian citizenship. Both parties agreed that the second ground required determination by the Central Government, and that this Court was not required to decide that matter. Accordingly, the only question that fell for determination was whether the respondents could be described as foreigners on the relevant date on the basis of article 7, given that they had departed for Pakistan after 26 January 1950. The Court noted that answering this question depended upon the construction of article 7. To interpret article 7, the Court found it necessary to briefly examine the overall scheme of the seven Articles that constitute Part XI of the Constitution, which all relate to citizenship. Article 5 provides that, at the commencement of the Constitution, any person domiciled in the territory of India who satisfies one of the three tests enumerated in clauses (a), (b) or (c) shall become a citizen of India. Article 6 deals with persons who migrated to the territory of India from Pakistan and stipulates that such persons shall be deemed citizens of India at the commencement of the Constitution if they satisfy the requirements of clauses (a) and (b). In effect, article 6 extends citizenship to individuals who would not meet the criteria set out in article 5, so that persons eligible to be treated as citizens of India at the commencement of the Constitution are covered by both articles 5 and 6. Article 7, which was the focus of the present contention, provides that, notwithstanding anything in articles 5 and 6, any person who after 1 March 1947 migrated from the territory of India to the territory now forming part of Pakistan shall not be deemed a citizen of India. The proviso to article 7 addresses those who migrated to Pakistan but later returned to India under a permit for resettlement or permanent return; however, that class of persons was not relevant to the present appeal. Article 8, which follows in the sequence, concerns the citizenship rights of persons of Indian origin who reside outside India.

Article 8 deals with the citizenship rights of persons of Indian origin who reside outside India. Article 9 provides that no person shall become a citizen of India by virtue of Articles 5, 6 or 8 if that person has voluntarily acquired the citizenship of any foreign State. Articles 10 and 11 state that the citizenship rights prescribed by Articles 5 and 6 shall be subject to any law that Parliament may enact; in other words, those rights will continue unless Parliament legislates otherwise. Article 11 further clarifies that the provisions of Part XI do not limit Parliament’s power to make any provision concerning the acquisition, termination, or any other matter relating to citizenship. That, in brief, summarizes the scheme of Part XI.

Mr. Sen, appearing for the appellant, argued that where the Constitution intended to limit the scope of a provision by referring to the date of the Constitution’s commencement, it used the specific words “at the commencement of the Constitution,” and he relied on that phrasing in Articles 5 and 6. He contended that Article 7 does not contain such a clause, and therefore the migration described in Article 7 – the movement from the territory of India to the territory now included in Pakistan – should not be understood as being limited to migrations that occurred before the Constitution came into force. Accordingly, he submitted that a person who migrated to Pakistan after the Constitution’s commencement should also be denied Indian citizenship, just as a person who migrated prior to 26 January 1950 is denied citizenship. This was the appellant’s principal contentions, based substantially on the absence of the words “at the commencement of the Constitution” in Article 7.

The Court held that this argument could not be accepted because it was plainly inconsistent with the actual language of Article 7. The provision states that a person shall not be deemed to be a citizen of India if “he has, after the first day of March 1947, migrated from the territory of India to the territory of Pakistan.” While it is true that any migration occurring after 26 January 1950 also occurs after 1 March 1947, the requirement of the clause is that the migration must have taken place at the time when the Constitution became operative. The expression “has migrated” in the context of the article cannot be read to include persons who migrate after the Constitution’s commencement. Consequently, only those who migrated before the Constitution came into force fall within the scope of Article 7. The use of the present perfect tense in the provision is decisive against the appellant’s contention, and the absence of the words relied upon by Mr. Sen is therefore of no significance. Moreover, inserting such words would have been inappropriate, given the grammatical construction of the article, and they were wholly unnecessary. The proviso to Article 7, which addresses persons who migrated to Pakistan and later returned to India under a permit for resettlement, also supports this conclusion, as the migration referred to in that proviso likewise appears to be migration that occurred prior to the Constitution’s commencement.

The Court held that the appellant’s submission was decisively rejected, and therefore the absence of the specific wording cited by Mr. Sen could not affect the interpretation. It observed that the article of the Constitution was expressed in the present perfect tense, and consequently the insertion of the words suggested by the appellant would have been both inappropriate and unnecessary. The Court emphasized that the language of the provision already conveyed the intended meaning, and no additional phrasing was required to give effect to the provision. The reasoning was further reinforced by reference to the proviso to Article 7, which deals with persons who had migrated to Pakistan and later returned to India under a permit for resettlement. The Court noted that the migration contemplated in that proviso must also be understood as having occurred before the Constitution came into force. By linking the proviso to the main clause, the Court concluded that the same temporal limitation applied throughout, confirming that the Constitution intended to address migrations that took place prior to its commencement.

The judgment then turned to Article 9, noting that it addresses individuals who have voluntarily acquired the citizenship of a foreign State and expressly provides that such persons shall not be deemed Indian citizens by virtue of Articles 5, 6 or 8. The Court clarified that the phrase “has voluntarily acquired” could only refer to acquisitions made before the Constitution became operative, and therefore the operation of Article 9 is confined to cases of foreign citizenship obtained prior to that date. In effect, the scope and effect of Article 9 are comparable to those of Article 7, because both provisions require the relevant act—migration to Pakistan under Article 7 or acquisition of foreign citizenship under Article 9—to have occurred before the Constitution commenced. The Court observed that both migration from Pakistan to India and migration from India to Pakistan, covered respectively by Articles 6 and 7, were intended to address movements that happened before the Constitution’s commencement, a necessity arising from the massive population transfers that followed the Partition of the country. Migrations occurring after 26 January 1950 were not specially provided for in the constitutional provisions; such cases were to be dealt with under the Citizenship Act, and the Court indicated that a citizen who migrated to Pakistan after that date would lose Indian citizenship if the relevant provisions of the Act applied. Finally, the Court acknowledged that Article 7 begins with a non‑obstante clause referring to Articles 5 and 6, creating a slight overlap. However, it held that this overlap does not create any inconsistency between the articles, and the non‑obstante clause does not affect the construction of Article 7. Accordingly, the Court was satisfied that Article 7 concerns migration that took place between 1 March 1947 and 26 January 1950.

In this case, the Court observed that Article 7 of the Constitution is limited to migrations that took place between 1 January 1947 and 26 January 1950. Because of that limitation, the Court could not hold that the respondents fell within the ambit of Article 7 simply by virtue of their having moved from India to Pakistan after 26 January 1950, and consequently the Court could not deem them to have ceased to be citizens of India on that ground. In explaining the correct legal framework for dealing with Indian citizens who acquire the citizenship of a foreign state, the Court noted that such matters are governed by Article 9 of the Constitution together with the relevant provisions of the Citizenship Act, 1955. The Court clarified that where foreign citizenship was obtained before 26 January 1950, Article 9 applies, whereas where foreign citizenship was obtained after that date but before the Citizenship Act, 1955 came into force, the situation is covered by the provisions of the Citizenship Act, as illustrated in the decision of Izhar Ahmed Khan v. Union of India (1962) Supp. 2 S.C.R. 235. The Court further explained that the Parliament enacted the Citizenship Act pursuant to the powers conferred by Articles 10 and 11 of the Constitution, and that the Act contains the rules for acquiring Indian citizenship as well as for terminating it. Under the Act, citizenship may be terminated by renunciation under section 8, by naturalisation, registration or voluntary acquisition of foreign citizenship under section 9, or by deprivation under section 10. The Court held that the question of whether persons who migrated to Pakistan after 26 January 1950 have lost Indian citizenship must be decided under these provisions of the Citizenship Act. The Court observed that if a dispute arises as to whether an Indian citizen has acquired the citizenship of another country, the authority designated by the Act must determine the issue in accordance with the procedural and evidential rules prescribed in section 9(2). Those rules make the Central Government or its delegate the appropriate authority, meaning that the question cannot be litigated directly before the courts. As a result, the respondents could not be characterized as foreigners merely because they migrated to Pakistan after 26 January 1950, and that is the only issue that the courts are capable of adjudicating. Should the State assert that the respondents have lost Indian citizenship under section 9(2) of the Citizenship Act, the appellant is entitled to request that the Central Government examine and decide the matter; if the Central Government’s decision is adverse to the respondents, the appellant may then take appropriate action against them. Regarding the appellant’s reliance on Article 7 against the respondents, the Court affirmed the High Court’s view that the respondents were not foreigners within the meaning of clause 7 of the Order and therefore could not be prosecuted under section 14 of the Act. Consequently, the appeal fails and is dismissed.

The Court examined the matter before it and determined that the petition presented no viable grounds for relief. As a result, the petition was found to have failed, and the Court ordered that it be dismissed. Having found the appeal to be without merit, the Court accordingly dismissed the appeal in its entirety. Consequently, the relief sought by the appellant was not granted, and the appeal was closed.