# Nageshwar Mishra v. The Union of India & Ors

- **Citation:** (2020) 9 ILRA 332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-02
- **Case number:** Public Interest Litigation (PIL) No. 801 of 2020
- **Bench:** Shashi Kant Gupta, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nageshwar-mishra-v-the-union-of-india-ors-45949
- **Pages:** 5

## Headnote

A. Indian Citizenship Act, 1955- Section
10(2)-Constitution of India-Section 5 to
11-Public Interest Litigation- Deprivation
of Citizenship -The provisions for depriving
the citizenship can be invoked only against
those persons who have become citizen by
naturalization or by virtue only of clause (c) of
Article 5 of the Constitution of India or but
registration otherwise than under clause (b) (ii)
9 All. Nageshwar Mishra Vs. The Union of India & Ors.
333
of Article 6 of the Constitution of India or clause
(a) of sub-section (1) of section 5 of this Act.
But since the respondent no. 3 is an Indian
citizen by taking birth in the territory of India
therefore
the
question
of
deprivation
of
citizenship does not arise. (Paras 6, 7, 8)
Public Interest Litigation Rejected. (E-10)

## Text

332 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The right to freedom of religion
guaranteed under Article 25 of the
Constitution thus cannot override the
interests of public order, morality and
health and is also subject to other
provisions contained under Part III.

8. The right under Article 25
guaranteeing
freedom
of
conscience,
profession, practice and propagation of
religion being subject to "public order,
morality and health", and also "to other
provisions" of Part III of the Constitution,
the restrictions imposed by the State
Government imposing lockdown for two
days in a week during the extraordinary
situation
created
due
to
COVID-19
pandemic, cannot be said to impinge upon
any of the Fundamental Rights of the
petitioners or members of any religious
community.

9. It is pertinent to mention that
guarantee of the Fundamental Rights has
been
made
subject
to
reasonable
restrictions which may be imposed by the
State. The power to impose reasonable
restrictions may be necessary in the interest
of public order, morality and health
provided the restrictions so imposed are not
unreasonable and arbitrary.

10. We, in such a situation, where the
restrictions imposed have neither been
shown to be arbitrary or unreasonable, find
no reason whatsoever for relaxing the
conditions contained under the guidelines.

11. The counsel for the petitioner is
unable to establish before us as to in what
manner the restrictions imposed in terms of
the
guidelines
issued
by
the
State
Government in the light of the prevailing
COVID-19 pandemic impinge upon any of
the fundamental rights of the petitioner or
of
any
person
especially
in
these
unprecedented
times
of
COVID-19
pandemic
which
casts
an
onerous
obligation upon the State to take measures
to secure the health and lives of its citizens.

12.

Having
regard
to
the
aforementioned facts and circumstances,
we do not find any element of public
interest in the present petition so as to
persuade us to exercise our extraordinary
jurisdiction under Article 226 of the
Constitution of India.

13. The writ petition thus fails and is,
accordingly, dismissed.
----------
(2020)09ILR A332
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SHAMIM AHMED, J.

Public Interest Litigation (PIL) No. 801 of 2020

Nageshwar Mishra ...Petitioner
Versus
The Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shailesh Kumar Tripahi

Counsel for the Respondents:
A.S.G.I., Sri Arvind Agrawal

A. Indian Citizenship Act, 1955- Section
10(2)-Constitution of India-Section 5 to
11-Public Interest Litigation- Deprivation
of Citizenship -The provisions for depriving
the citizenship can be invoked only against
those persons who have become citizen by
naturalization or by virtue only of clause (c) of
Article 5 of the Constitution of India or but
registration otherwise than under clause (b) (ii)
9 All. Nageshwar Mishra Vs. The Union of India & Ors.
333
of Article 6 of the Constitution of India or clause
(a) of sub-section (1) of section 5 of this Act.
But since the respondent no. 3 is an Indian
citizen by taking birth in the territory of India
therefore
the
question
of
deprivation
of
citizenship does not arise. (Paras 6, 7, 8)
Public Interest Litigation Rejected. (E-10)

(Delivered by Hon'ble Shashi Kant Gupta, J.
& Hon'ble Shamim Ahmed, J.)

1. The present writ petition in the
form of Public Interest Litigation has been
filed inter alia for the following relief:-

"(a) issue a writ, order or
direction in the nature of Mandamus
commanding the respondent authorities
to deprive the Indian Citizenship of the
Kanhaiya Kumar (Respondent No. 3)."

2. The allegations have been made in
the petition against the Respondent No. 3,
Kanhaiya Kumar, a former President of the
Students' Union of Jawahar Lal Nehru
University Delhi for allegedly raising anti
national slogans during an event that took
place in JNU campus on 9.2.2016.
Following the said incident Kanhaiya
Kumar and others are facing the trial after
receiving nod for prosecuting them in a
sedition case.

3. Learned counsel for the petitioner
stated that despite the anti-national slogans
raised by the Respondent No. 3, Kanhaiya
Kumar, the Government of India, is not
taking any action to terminate his Indian
Citizenship. It has been further averred in
the writ petition that Kanhaiya Kumar and
his associates are supporting the freedom
struggle of terrorist groups who are
working on the instigation of Pakistan to
destabilize the unity and disturb the peace
and tranquility of our country. It has been
further averred that a criminal case has
been instituted by lodging an FIR (No. 110
of 2016) under Sections 124-A, 323, 143,
149 and 120-B IPC againstKanhaiya
Kumar and his associates for raising antinational slogans. It has been further stated
that keeping in view the anti-national
activities, Respondent No. 3, Kanhaiya
Kumar be deprived of citizenship under
Clause (2) of Section 10 of the Indian
Citizenship Act, 1955.

4. Heard Sri, Shailesh Kumar
Tripathi, learned counsel for the petitioner,
Sri Arvind Agrawal, learned counsel
representing
the
Union
of
India,
Respondent No. 1 and perused the record.

5. From the perusal of the record, it
appears that the learned counsel for the
petitioner before filing the present writ
petition has neither gone through the
provisions of Constitution of India nor The
Indian Citizenship Act, 1955. It will be
appropriate, at this stage, to quote Subclause 1 and 2 of Section 10 of The Indian
Citizenship Act, 1955 which are as
follows:-

"10. Deprivation of citizenship.-
- (1) A citizen of India who is such by
naturalisation or by virtue only of clause
(c) of article 5 of the Constitution or by
registration otherwise than under clause
(b) (ii) of article 6 of the Constitution or
clause (a) of sub-section (1) of section 5
of this Act, shall cease to be a citizen of
India, if he is deprived of that citizenship
by an order of the Central Government
under this section.

(2) Subject to the provisions of
this section, the Central Government
may, by order, deprive any such citizen
of Indian citizenship, if it is satisfied
that--
334 INDIAN LAW REPORTS ALLAHABAD SERIES

(a)
the
registration
or
certificate of naturalisation was obtained
by means of fraud, false representation
or the concealment of any material fact;
or

(b) that citizen has shown
himself by act or speech to be disloyal or
disaffected towards the Constitution of
India as by law established; or

(c) that citizen has, during any
war in which India may be engaged
unlawfully traded or communicated with
an enemy or been engaged in, or
associated with, any business that was to
his knowledge carried on in such manner
as to assist an enemy in that war; or

(e)
that
citizen
has
been
ordinarily resident out of India for a
continuous period of seven years, and
during that period, has neither been at
any time a student of any educational
institution in a country outside India or
in the service of a Government in India
or of an international organisation of
which India is a member, nor registered
annually in the prescribed manner at an
Indian consulate his intention to retain
his citizenship of India.

(3) The Central Government
shall not deprive a person of citizenship
under this section unless it is satisfied
that it is not conducive to the public good
that the person should continue to be a
citizen of India.

(4) Before making an order
under
this
section,
the
Central
Government
shall
give
the
person
against whom the order is proposed to be
made notice in writing informing him of
the ground on which it is proposed to be
made and, if the order is proposed to be
made on any of the grounds specified in
sub-section (2) other than clause (e)
thereof, of his right, upon making
application therefor in the prescribed
manner, to have his case referred to a
committee of inquiry under this section.

(5) If the order is proposed to
be made against a person on any of the
grounds specified in sub-section (2) other
than clause (e) thereof and that person so
applies in the prescribed manner, the
Central Government shall, and in any
other case it may, refer the case to a
Committee of Inquiry consisting of a
chairman (being a person who has for at
least ten years held a judicial office) and
two other members appointed by the
Central Government in this behalf.

(6) The Committee of Inquiry
shall, on such reference, hold the inquiry
in such manner as may be prescribed
and submit its report to the Central
Government;
and
the
Central
Government shall ordinarily be guided
by such report in making an order under
this section."

6. A bare reading of Section 10 of
The Indian Citizenship Act, 1955 and the
relevant provisions i.e. Article 5 to 11 of
Constitution of India contained in Part II of
the Constitution of India dealing with the
citizenship
clearly
indicates
that
the
provision for depriving the citizenship can
be invoked only against those persons who
have
become
citizen
of
India
by
naturalisation or by virtue only of clause (c)
of Article 5 of the Constitution of India or
by registration otherwise than under clause
(b) (ii) of Article 6 of the Constitution of
India or clause (a) of sub-section (1) of
section 5 of this Act. Such persons shall
cease to be citizens of India, if they are
deprived of their citizenships by an order of
the Central Government under this section.

7. In the present case, admittedly, the
Respondent No. 3, Kanhaiya Kumar was
born in the territory of India, as such, by
9 All. Nageshwar Mishra Vs. The Union of India & Ors.
335
virtue of Article 5(a) of Constitution of
India, he is a citizen of India. For ready
reference, Article 5 of the Constitution of
India is quoted hereinbelow:-

"5.
Citizenship
at
the
commencement of the Constitution:- At
the commencement of this Constitution
every person who has his domicile in the
territory of India and-

(a) who was born in the
territory of India; or

(b) either of whose parents was
born in the territory of India; or

(c) who has been ordinarily
resident in the territory of India for not
less than five years preceding such
commencement, shall be a citizen of
India"

8. Thus in view of the above
Respondent No. 3, cannot be deprived of
his citizenship, in as much as he has not
become a citizen of India by naturalisation
or by virtue only of clause (c) of Article 5
of the Constitution of India or by
registration as provided under sub section
(1) of Section 10. Therefore, the powers
under sub section (2) of Section 10 cannot
be invoked against him, since they are
expressly subject to the provisions of
Section 10 and can only be invoked for
such citizens as provided for under Sub
section (1) of Section 10. Therefore it is
evident that the petition is completely
devoid
of
merit
and
is
wholly
misconceived.

9. In any view of the matter, the
question of deprivation of citizenship
cannot
arise,
merely
because
the
Respondent No. 3 is facing Trial before the
Court in Delhi on charges of allegedly
raising the inflammatory slogans. Also,
under the present proceedings we are not
competent to express any opinion with
regard to the merit of the criminal case
pending against the Respondent no. 3. It
must
be
noted
that
deprivation
of
citizenship is a serious aspect as it would
affect a person's right to live in India, and it
may also result in making the person
stateless.

10. It appears that the present writ
petition, filed under the garb of public interest
litigation has been preferred with the sole
motive of gaining cheap publicity, without
even going through the relevant provisions of
the Constitution of India and The Indian
Citizenship Act, 1955. As such, valuable time
of this Court, which is functioning in its
limited strength, during the period of the
pandemic, has been wasted by filing the
present writ petition. Intention of the
petitioner, in our opinion, is not to espouse
the interest of the public, but only of his own
self, by gaining publicity. Such conduct is
highly condemnable. The present public
interest litigation is wholly frivolous and an
abuse of the process of law. Therefore, we
deem it fit to impose heavy cost.

11. In view of the above, we dismiss
the
present
public
interest
litigation
imposing a cost of Rs. 25,000/- (Rs.
Twenty Five Thousand Only) on the
petitioner. The petitioner is directed to
deposit the said cost of Rs. 25,000/- by way
of Bank Draft in favour of the Registrar
General, High Court Allahabad within a
period of 30 days from today.

12. The amount so deposited with the
Registrar General, High Court shall be
remitted to the Advocate Association, High
Court, Allahabad.

13. In case of default in depositing the
said money within the stipulated period, the
336 INDIAN LAW REPORTS ALLAHABAD SERIES
same shall be recovered from the petitioner
as arrears of land revenue by theDistrict
Collector, Varanasi.

14. Let a copy of this order be placed
before the Registrar General of this Court
to ensure necessary compliance of this
order.

15. A copy of this order may also be
sent to the District Collector, Varanasi for
necessary follow up action.
----------
(2020)09ILR A336
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SHAMIM AHMED, J.

Public Interest Litigation (PIL) No. 840 of 2020
with
Public Interest Litigation (PIL) No. 841, 842, 848
of 2020

Roshan Khan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Viquar Mehdi Zaidi, Sri M.J. Akhtar, Sri
Imran Khan, Sri S.F.A. Naqvi

Counsel for the Respondents:
C.S.C.

A. Public Interest Litigation - The Court
observed that the right to practice and
propagate religion has been made subject
to public order, morality and health even
under
the
Constitution
of
India.
Therefore,
vide
Notification
dated
10.08.2020 and 23.08.2020 the State
Government adopted the same yardstick
for all religious communities and they
have been restricted from carrying on any
processions or jhankis or activities that
have a danger of large congregations that
may lead to a spread of pandemic Covid-
19. (Para 12, 22)
Public Interest Litigation Rejected. (E-10)

List of cases cited: -

1. Odisha Vikash Parishad Vs U.O.I. & ors.

2. Syed Kalbe Jawad Writ Petition (Civil) No. 924
of 2020

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. Since the controversy raised in all
the aforesaid Writ Petitions is identical,
they are being decided by a common order,
treating Public Interest Litigation (PIL) No.
840 of 2020 (Roshan Khan and Others
Versus State of U.P. and others) as the
leading case.

2. In sum and substance, the
Petitioners
seek
to
challenge
the
Government Orders dated 10.08.2020 and
23.08.2020
passed
by
the
State
Government, in so far as they prohibit the
petitioners
and
members
of
their
community, from taking out the Moharram
Processions, and further seek the issuance
of a direction to the Respondent Authorities
to permit them to perform religious
mourning rituals/practice connected with
Moharram, during the period of ten days
i.e. up to 30.08.2020, amid the pandemic
restrictions in the State of Uttar Pradesh.

3. The main thrust of the argument of
the learned counsel for the petitioners is
that Government Orders issued by State of
Uttar
Pradesh
dated
10.08.2020
and
23.08.2020 are discriminatory in nature,
insofar as they provide for a complete ban
in taking out the Moharram processions. It
has been further submitted that such