# IZHAR AHMAD KHAN v. UNION OF INDIA

- **Citation:** [1962] Supp. 3 S.C.R. 235
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/izhar-ahmad-khan-v-union-of-india-2376
- **Pages:** 53

## Headnote

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3 S.C.R. SUPREME COURT REPORTS
235
explain the case made against hiin and that state·
ment can be taken into consideration in judging
the innocence or guilt of the person so accused.
Therefore if the courts below have accepted this
explanation it must be held that the respondent has
discharged the onus which was placed on him by
s. 65(2) of the Act.
The appeal is therefore dismissed.
Appeal dismissed.
IZHAR AHMAD KHAN
v.
UNION OF INDIA
(P. B. GAJENDRAGADKAR,
A. K. SARKAR,
K. N.
WANCHOO, K. C. DAS GUPTA and N. RAJAGOPALA
AYYANGAR, JJ.)
Citizenship, Termination of-Determination by Central
Government-Rule rnaking obtaining of passport from another
country conclusive evidence-Validity-Citizenship Act, 1955( 57
of 1955), s. 9(2)-Citizenship Rules, 1956, Sch. Ill, r 3.
The petitioners claiming to be Indian Citizens sought to
enforce their fundamental rights under Art. 19 (1) (e) of the
Constitution. The crucial question was \Vhethcr they \Vere
citizens of India.
While the petitions were pending the
Government of India under s. 9(2) of the citizenship Act, 1955
determined that they had voluntarily acquired the citizenship
of Pakistan by the application of r. 3 of Sch. III of the
Citizenship Rules, 1956, framed by the Central Government
under s. 18 of the Act.
Section 9 of the Citizenship Act,
1955, provides as follows:-
"( I) Any citizen of India who by naturalisation, regist·
ration or otherwise voluntarily acquires, or has at any time
between the 26th January, 1950, and the commencement of
this Act voluntarily acquired, the citizenship of another
country, shall, upon such acquisition or, as the case may be,
such commencement, cease to be a citizen of India .
(2} If any question arises as to whether, when or how
any person has acquired the citizenship of another country,
jl Jlla!! be detertnil)ed by such ~uthority! in s.uGh i;nanqer1 alj~
198%
Stat1 of Mahorasher a
••
Luman J airam
KapurJ.
19•1
1962
lzhar Ahmod Khan
v.
llnion nf Trltli•
236 SUPREME COURT REPORTS [1062]"SUPP.
having regard to such rules of evidence, as mav be prescribed
in 1his behalf."
,
Rule 30 of the Rules which made the Central Government the authoricy for the purpose of s.9 (2) provided that for
a determination under that section the Central Govern·
ment should have due regard to the rules of evidence specified
in Sch. II I of the Rules.
Ruic 3 of the said schedule was as follows.
«The fart that a citizen of India has obtained on any
date a passport from the Government of any olhcr country
shall be conclusive proof of his having volunlarily acquired
the citizenship of the country before that date.'.'
After such determination by the Central Government the
petitioners challenged the constitulional validity of s. <J (2)
of the Citizenship Act, 1955, as also of r. 3 of Sch. II I of the
Citizenship Rules, 1956. Their case was that (I) r. 3 of Sch.
Ill of the Rules was not a rule of evidence but a rule of
substantive Ja\v and ao;
such
outside the · purvic\\' of the
delegated authority conferred by s. 9 (2) as also the general
rule making power under s. 18 of the Act, and that (2) s. 9 (2)
itself \\'as u1trrr.
i·irr-~ as it affected the :::tatl1s of citizenship
and deprived the petitioners of their fundamental rights
under Art. 19 (I) (e) of the Constitution.
Held, (per Gajendragadkar, Wanchoo and Ayyangar,
.JJ.) that the contentions raised by the peti1ioners must fail.
It was not correct to say that r. 3 of Sr.h III of the
Citizenship Rules, 1956, which made it obligatory on the
authority
to infer
the acquisition of foreign
cilizenship
from the fact of obtaining a passport from a foreign country
\\•as not a rule of evidence but a rule of substantive la\\'.
Like the n!le of rebuttablc
presumption, \vh;ch was
undoubtedly a rule of evidence, The function of an irrcbuttable
presumption was also to help the judicial mind in appreciating the existence of facts with this differenr.e that while the
former was open to rebuttal, the latter v.·as placed beyond
rebuttal.

## Text

_Characters 0–39,772 of 108,504. This is a partial read: ask again with offset=39772 for what follows._

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3 S.C.R. SUPREME COURT REPORTS
235
explain the case made against hiin and that state·
ment can be taken into consideration in judging
the innocence or guilt of the person so accused.
Therefore if the courts below have accepted this
explanation it must be held that the respondent has
discharged the onus which was placed on him by
s. 65(2) of the Act.
The appeal is therefore dismissed.
Appeal dismissed.
IZHAR AHMAD KHAN
v.
UNION OF INDIA
(P. B. GAJENDRAGADKAR,
A. K. SARKAR,
K. N.
WANCHOO, K. C. DAS GUPTA and N. RAJAGOPALA
AYYANGAR, JJ.)
Citizenship, Termination of-Determination by Central
Government-Rule rnaking obtaining of passport from another
country conclusive evidence-Validity-Citizenship Act, 1955( 57
of 1955), s. 9(2)-Citizenship Rules, 1956, Sch. Ill, r 3.
The petitioners claiming to be Indian Citizens sought to
enforce their fundamental rights under Art. 19 (1) (e) of the
Constitution. The crucial question was \Vhethcr they \Vere
citizens of India.
While the petitions were pending the
Government of India under s. 9(2) of the citizenship Act, 1955
determined that they had voluntarily acquired the citizenship
of Pakistan by the application of r. 3 of Sch. III of the
Citizenship Rules, 1956, framed by the Central Government
under s. 18 of the Act.
Section 9 of the Citizenship Act,
1955, provides as follows:-
"( I) Any citizen of India who by naturalisation, regist·
ration or otherwise voluntarily acquires, or has at any time
between the 26th January, 1950, and the commencement of
this Act voluntarily acquired, the citizenship of another
country, shall, upon such acquisition or, as the case may be,
such commencement, cease to be a citizen of India .
(2} If any question arises as to whether, when or how
any person has acquired the citizenship of another country,
jl Jlla!! be detertnil)ed by such ~uthority! in s.uGh i;nanqer1 alj~
198%
Stat1 of Mahorasher a
••
Luman J airam
KapurJ.
19•1
1962
lzhar Ahmod Khan
v.
llnion nf Trltli•
236 SUPREME COURT REPORTS [1062]"SUPP.
having regard to such rules of evidence, as mav be prescribed
in 1his behalf."
,
Rule 30 of the Rules which made the Central Government the authoricy for the purpose of s.9 (2) provided that for
a determination under that section the Central Govern·
ment should have due regard to the rules of evidence specified
in Sch. II I of the Rules.
Ruic 3 of the said schedule was as follows.
«The fart that a citizen of India has obtained on any
date a passport from the Government of any olhcr country
shall be conclusive proof of his having volunlarily acquired
the citizenship of the country before that date.'.'
After such determination by the Central Government the
petitioners challenged the constitulional validity of s. <J (2)
of the Citizenship Act, 1955, as also of r. 3 of Sch. II I of the
Citizenship Rules, 1956. Their case was that (I) r. 3 of Sch.
Ill of the Rules was not a rule of evidence but a rule of
substantive Ja\v and ao;
such
outside the · purvic\\' of the
delegated authority conferred by s. 9 (2) as also the general
rule making power under s. 18 of the Act, and that (2) s. 9 (2)
itself \\'as u1trrr.
i·irr-~ as it affected the :::tatl1s of citizenship
and deprived the petitioners of their fundamental rights
under Art. 19 (I) (e) of the Constitution.
Held, (per Gajendragadkar, Wanchoo and Ayyangar,
.JJ.) that the contentions raised by the peti1ioners must fail.
It was not correct to say that r. 3 of Sr.h III of the
Citizenship Rules, 1956, which made it obligatory on the
authority
to infer
the acquisition of foreign
cilizenship
from the fact of obtaining a passport from a foreign country
\\•as not a rule of evidence but a rule of substantive la\\'.
Like the n!le of rebuttablc
presumption, \vh;ch was
undoubtedly a rule of evidence, The function of an irrcbuttable
presumption was also to help the judicial mind in appreciating the existence of facts with this differenr.e that while the
former was open to rebuttal, the latter v.·as placed beyond
rebuttal. So considered a rule of irrcbuttable presumption
could not be said to fall outside the law of evidcnc.c.
D. fl. Heiner v . .lo/,n. II. ])on11r111, (1932) 76 Law Ed.
772, referred to.
That such a rule ruight in son1e cases lead to hardship
and injustice was not a relevant consideration in judging its
constitutional validity.
The real test whether a rule of irrebuttablc preswnption
was one of evidence was inherent relevancy, If the fact fro!ll
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3 s.c.R.
SUPREME COURT REPORTS
',.
237
the proof of which the presumpti~n w.as required to be draw~
was inherently relevant in proving it, the rule was one of
evidence, no matter whether the presumption prescribed was
a rebuttable or irrebuttable.
There could be no doubt that a passport obtained from
Pakistan was relevant in deciding
whether or not the
citizenship of Pakistan had been voluntarily acquired and
any
argument
to
the
contrary
would
be
clearly
erroneous.
R. v. Brailsford, (1905) 2 K. B. 730 and Joyce Gase,
[1946] A. C. 347, referred to.
Domingo Urteliqwi v, John N.D'arcy, Henry Didier and
DomingoD' Arble (1835) 9 Law. Ed. 690 and In re GOHN,
(1945) Ch. D. 5, held inapplicable.
It was clear that under the law of Pakistan only a citizen
of that country could apply for and obtain passport. The
impugned rule, therefore, was not a rule of substantive la\V
·and was within the purview of s. 9 (2) of the Citizenship Act
and its validity could not be challenged.
The expression 'rules of evidence' in s. 9 (2) must be
construed in the light of its legislature history. Ever since the
passing of the Evidence Act a conclusive presumption has been
·a part of the law of evidence. It was well settled . that i .the
·scope of the power to legislate on a topic, had to be determined by the denotation of that topic obtaining in legislative
practice.
.
.
Croft. v. Dunphy, 1933 A.C. 156 and The Central Provinces andBerarAct,No. XIV of 1938, (1939) ~'.C.R. 18, referred
to.
Status of citizenship was not a fundamental right under
the Constitution and the Parliament had clearly the power
under Art. I I of the Constitution to regulate the right of
citizenship by law. The challenge to s. 9(2) of the Act,
therefore, on the ground that enabled the rule-making
authority to deprive the petitioners of their rights of citizenship could not be sustained.
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The scheme of the Act and principles it enunciated clearly
showed that the Legislature in enacting s. 9(2) had not abdicated its essential legislative function in favour of the rule making
- authority. There would be no doubt therefore that the section
was valid.
Per Sarkar and Das Gupta, JJ .-Whether a particular
rule was one of substantive Jaw or of evidence had to be judged
by what it sought to do. Did it create or extinguish or modify
a right or liability or its sole concern was with the adjective
1961
lzha< Ahmod Khan
"·
Union of India
1161
(diaf' Alm..,/ Khan
v.
Union of India
238
..
-.~ •• ...,
__
1:~~· .• :~ t:...
:
!\~
SUPREME OOURT REPORTS [1962] SUPP.
function of reaching a conclusion as to what had taken place
under the substantive law ? If the first, it would be a rule
of substantive law, otherwise it would be a rule of evidence.
If a rule, purporting to be one of evidence, in effect said what
must be the ri!-{ht or liability on the happening of a par:icular
fact. it \vent beyond the scope of the law of evidence and
trenched on the do1nain of sul;stantivc law.
A rule of conc]usive prcsurnption made with a
viC\Y to
affect a specified subs!antivc right was a rule of substantive
law and did not cease to be so because it \Vas rested on a fact
which was relevant to it. The test \Vas not one of relcvancv
but v.rhcther it \vas intended to affect a specified substantivC
right or provide a method of proof.
So judged, when ohtaining of a passport from another
country was 1nade conclusive proof of voluntarily acquiring
the citizenship of that country, in the context of s. 9 of the
Act, a substantive right was directly affected and the rule
could not obviously be one of evidence and must be. one of
substantive law. It might so happen that when one voluntari·
ly acquired the passport of a country he might not have to
acquire the citizenship of that country.
Mohd. Khan v. Govt. of..!ndhrn Pradesh, A.l·R· 1957 And.
Pra. 1047 and Sh<Lrafat Ali Khan v. State
~r U./'., A.l.R. 1960
All, 637, approved
.lluhowe<l U.rnum V· Stutc of Jladras, A.J.R. 1961 Mad
129 and Ghoural llusan v. State of Raja.•lhun, A.I.R. 1958 Raj•
173, disapproved.
In vie\'v of '"\rt, 11 of the Constitution it was not co1Tect
to say that the rir~ht of citizenship was a fundamental right
or that the po1>cr conferred by s. 9(2) of the Act was an
unguided power. That sub-section gave enough guidance to
the C·entral Government to fran1e rules of evidence.
'l'he question \vhethcr
the petitioners had acquired
foreign natio11ality must, 1hcrcforc he detfrminrd by the
Government leaving r. 3 of Sch. I II of the Citizenship RGles,
1956, out of account.
OnrnINAL Ji:nismcTION :
Pctiti0ns Nos. IOI
and 136 of 1959 and 88 of 1961.
Petitions Under Art. !32 of the Constitution of
India for enforcement of Fundamental Rights.
The Judgment of (:l6jendragadkar, Wanchoo and
Ayyangar, JJ., was deli1•cred by Gajendragadkar, J.
-
3 S.C.R. SUPREME COURT REPORTS
23!!
•
The Judgment of Sarkar and Das Gupta, JJ.,
1962
was delivered by Das Gupta, J.
Izhar J.hmad Khan
GAJENDRAGADll:AR, J.-These three Writ Petitions are filed by the three respective petitioners
under Art. 32 of the Constitution for the enforcement of their fundamental right under Article 19(1)
(e).
They were heard separately but it would be
convenient to deal with them by one common judgment because they raise for our decision the same
constitutional questions. In all the petitions, the
constitutional validity of section 9(2) of the Citizenship Act, 1955, (Act LVII of 1955) (hereinafter called the Act) and of rule 3 in Schedule III of the
Citizenship Rules, 1956, is challenged. It would
also be convenient to set out briefly at the outset
material facts on which the three petitions are
based.
Izbar Ahmad Khan, the petitioner in Writ
Petition No. 101 of 1959, claims to be a citizen of
India and was a resident of Bhopal. He was enrolled as a voter in the Parliamentary as well as State
Legislative Assembly Electoral Roll. On the 20th
August, 1952, he was taken into custody by the
police from the restaurant which he used to run at
Bhopal and was told that he had been arrested under
an order from the then Bhopal Government under
section 7 of the Influx from Pakistan (Central) Act.
He was the;n removed by train the very next day
and left at the Pakistan border and was asked to
go to Pakistan despite his protests. Thereafter,
his elder brother, Iqbal Ahmad moved the Court
of the Judical Commissioner, Bhopal, under Art.226
of the Constitution for the issue of a writ in the
nature of Habeas Gorp·us.
In February, 1953, . the
learned Judicial Commissioner pronounced hie
judgment in the said writ petition.
He found in
favour of the petitioner that he was born in India
and was a citizen of India.' Even on the question
of migration, the Judicial Commissioner made a
••
Union of India
Gojendragadkar J,
1962
ldrar Ahmad Khan
v.
U11icm of liuiia
Gajtndragatlkm J.
240 SUPREME COURT REi;>oRTS [1962] S~PP.
finding in his favour. He, however, observed that
the petitioner was
in
Pakistan in l\Iay an<l
.Tune, 1952, and he cam(• to the conclusion that
since he hu,d contravened the provi:;ions of section 3 of the Influx from Pakistan (Central) Act,
he was liable to be remove<l phy:;ically from India
under seotion i of the said Act.
Having gone
to Pakistan
much
against
his
will,
the
petitioner
tried
to
obtain
the help of the High Commissioner of India
for returning of India but he failed and so he
had to sign nn application form in order to secure
a passport to come to India. With the passport
thus obtained he came back to India on the 13th
August, 1953. Soon after his return to India, he
applied for permi::sion to 8tay in India permanently
and his visa for stay in India was accordingly
extended from time t.o time pending the final decision of his application for leave to stay in India
pcrmam·nt.ly.
llfoamthile, on the 15th February,
l!JiH, section 7 of t.hc Influx Act was declared void
by this Court. In consequence, the petitioner began
to press his application for permanent settlement
in India and a lrmg term visa was granted to him
by the Government of India pending the decision
of hiR application. Thereafter, the Act was passed
in l!J55 and under advice, the petitioner applied
for registration as 1L eitizcn. The said application
was, however, rejecku and his application for leavo
to stay in India permanently met with the samo
fate.
'rhe petiti01H'r wM
then directed by the
District Superintcn1icnt of Police, Bhopal, to leave
India within seven days by an order dated the
lUth June, 1959, Hervcd on the petitioner.· This
order was passed under section 3(2)(c) of the
Foreigners Act, 1946 (Xo. XXXI of 1946). It was
against this order that the petitioner came to thi8
Court by his present, writ petition on August 13,
l!J59.
In the petition orginally filed by him, the
petitioner's contention was that h" was not a
I•I
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3 S.C.R.
SUPREME COURT REPORTS
241
foreigner within the meanin~ of the Foreigners Act
aad he ch 1.l\enged the validity of the relevant oper·
tive sections of the said Act.
After notice was served on the Union of India,
the Sta.~e of Madhya Pradesh and the District
Superintendent of. Police,
Bhopal, who were
impleaded as respondents I, 2 & 3 to the petition,
the matter' came on for heari°:g before this Court on
J anua.ry 22, 1960. After hearing counsel for some
time, tha Court delivered an interlocutory judgment
in which it pointed out that the crucial question
which falls to be considered in the writ petition is
whether the petitioner is a citizen of India or not.
This question can be decided only under section 9(2)
of the Aot.
Therefore, this Court observed that an
enquiry sho·1ld be made by an appropriate authority
in that behalf and the result of the enquiry intimated to this Court as early as possible. On receipt of
the result of the enquiry by this Court, the petition
will be listed for final hearing. Meanwhile, stay of
deportation of the petitioner was continued.
In accordance with this interlocutory judgment, an enquiry was held under s.9(2) after serving
a notice about the said enquiry on the petitioner.
On September 11, 1961, the Central Government
recorded its conclusion that the petitioner had
voluntarily acquired the citizenship of Pakistan
after January 26, 1950; and before July 29, 19.53.
This conclusion was reached substantially by the
application of the impugned R. No. 3.
After the enquiry had thus terminated and its
result communicated to this Court, the petitioner
applied for permission to take additional grounds
and am•mgst th3 i:rrounds which he thus wanted to
raise, are the two questions which we have already
indic:i,ted. 'J'hat. in brief, is the background of facts
in Petition No. IOI of 1959.
Syed Abrarul Hassan, the petitioner in· petition No. 136 of 1959, claims to be a citizen of India
1962
lzhar Ahmad Kha,.
••
Union of India
Gajendragadkar J.
1962
lz;hat Ahn11d AA!um
v.
Union of India
Goj1ndragadkar J,
212
SUPREME COURT REPORTS [1962] SUPP.
and was a resident of Bhopal. In 1951, his family
received the news from
Paki~ta.n that his cider
brother Syed Hassan was seriously ill. That is
why the petitioner with his mother and younge,r
sisters and one younger brother went to Pakistan.
Thereafter, the petitioner stayed there for some
years.
Thon they triod to come back to India. and
with that object applied fur a Pakistan passport
to travel to India and after the passport was thus
obtained, he returned to India in May, 1954. After
he came to India., ho applied to tho Government
of India for permiBBion to settle down in India permanently and pending the said application, be was
granted long term visas. In 1959, however, the Dis·
trict Superintendent of Police, Bhopal, served an
order on him directing him to leave India. by the
22nd August, 1959. This order was issued under section 3(2)(c) of the Foreigners Act. Like petition No.
IOI of 195!J, this petition also was originally filed to
challenge the validity of the said order and to impugn
the validity of tho relevant provisions of the Foreigners Act on the ground that the petitioner was
not a foreigner and that the relevant provisions
could not be invoked against him.
Subsequently, this petition as well as Petition
:No. IOI of 1959 were heard together on January,
22, I 960, and the course of events in this petition
was similar to that in the earlier petition. Tha
result was that after an enquiry was held under
s. 9(2) of the Act and the petitioner was informed
that the Central Government had come to the conclusion that the petitioner had voluntarily acquired
the cit.izenship of Pakistan after January 26, 1950,
and before November 20, 19.52, he applied for leave
to take additional grounds, including the two
grounds to which we have already referred. Thus,
th~ material facts
in thnse two petitions 11re
sub~tantiallv similar,
'
3 s.c.R.
SUPREME COURT REPORTS
243
Habib Hidayatullah, the petitioner in petition No.
88 of 1961, claims to be a citizen of India and complains that his fundamental rights nuder Art. 19 of the
Constitution are being infringed because he is about
to be deported out of India on the ground that he
has acquired the citizenship of Pakistan. It appears
that the petitioner sailed from Bombay for Basra
(Iraq) in April, 1950,and stayed there for three yea.rs
in connection with business. Then he accompanied
hii! brother to Karachi in May, 1963, for his treatment.
On arrival at Karachi, the Pakistan authorities
took away his Indian travel documents. Then
he tried to obtain the assistance of Indian High
Commission for returning to India but failed and
so he applied for and obtained a Pakistani passport on December 14, 1957.
According to him,
he obtained his passport with a view to return to
India. On returning to India with this passport,
the petitioner made several representations to the
Indian authorities for his recognition as a citizen
of India and even tried to obtain registration as
such.
His efforts in that direction, however, failed
and so he stood the risk of being deported from
India. That is how the petitioner filed the present
petition on February 20, 1961.
By his petition,
he claimed a direction against the respondents the
Union of India and
the State of Maharashtra
restraining them from taking any steps to deport
him from India.
While admitting the petition, this Court passed
an order stating that it would be open to the petitioner to move the Government under section 9(2)
of the Citizenship Act or the Government to act
suo motu in that behalf. After the petition was thus
admitted, the respondents entered appearance and
opposed grant of stay on the ground that the petitioner had ceased to be a citizen of India. The Government of India then took action under section 9(2) of
the Act and has held that the petitioner has voluntarily acquired the citizenship of Pakistan after
1961
lzkar Ahmad Kliao
v,
Union of India
Gajtndragodkar J,
1962
l.tMr A::mad Khan
v.
Union oj India
G,.jtndragadkaf' J.
244 S'L'PRE:IIE COURT REPORTS [1962] SUPP.
26th January, 1950, ancl before t.h., 14th December,
195i. After this order was communicated to the
petitioner, he took additional grounds and amongst
them, are the two points which have Leen already
indicated. It is in the br.ckground of these respcc·
tive facts that the three petitioners resist· their
deportation from India on the grounds that section
9(2) of the Act is uUm vires :rnd that Rule 3 in
Schedule III of the Citizenship Rules, I 95G, is also
constitutionally invalid.
Before den ling with the points thus rai•ed by
tht' three petitions, it would
be useful to refn
briefly to thi; relevant constitution anrl statutory
provisions.
Part II c;if the Constitution, consisting
of Arts. 5 to 11, deals with citizenship.
Article 5
provides that ev.,r:v prrson specified in cl. (a), (b)
and (c) shall he a citizen of India.
Article 6 lays
down that not.withstamlin~ :rnything container] in
Art. 5, a porson who has iuigr;1tcd t;> the tcrrit.ory
of India from the territory now induclt•d in l'aki·
stan shall be deemed to he a ritizcn of India at the
commencement of the Constitution if he satisfies
the tests prescribed by
clau~cs (a) and ( b).
Under
Art. 7, a person who has after the first day of
March, 19·17, migrated from thP. territory of India to
the territory now included in Pakistan shall not be
deemed to b0 a citizen of fnrlia, notwithstanding
anything
contained
in
ArtH. fl and fi.
This
Article is
~ubjc.·ct to tho proviso to which it is
unnocessafy to rcfor. Art. 8 deals with the right."
of citizenship of :t person who or either of whoso
parents or
any of whosn grand-parents were
born in India as defined in the Government of ln<lia
Act, I !l3ii, and who ordinarily resirles in
any
country outsi<k India as so defined. The next
thren article~ are importa1.t.
Art. !l provicks that
no person shall b" a citizen of India by virtue of
Art. ti, or Le deemed to he a citizen of India by
virtue of Art. 6 or Art. IS, if he hns "n!untarily
acquired the citizenship of any foreign Stace.
In
•
3 S.C.R.
SUPREME dotrRT REPORTS
245
other words, if prior to the commencement of the
Constitution, a person had voluntarily acquired the
citizenship of any Foreign State, he is not entitled
to claim the citizenship of India by virtue of Art. 5
or Art. 6 or Art. 8.
This article thus deals with
cases where citizenship of a foreign State had been
acquired by an Indian citizen prior to the comm·
encement of the Constitution. Article 10 guarantees the continuance of the rights of ciitizenship
and provides that every person who is ors deemed
to be a citizen of India under any of the foregoing·
provisions of Part II shall continue to be such citizen; but this guarantee is subject to the important
condition that it would be governed by the provisions of any law that may be made by Parliament.
The Proviso introduced by Art. 10, therefore, makes
it clear that any law made by Parliament may
affect the continuance of the rights of citizenship
subject to its terms. That takes us to Art. 11 which
empowers Lhe Parliament to regulate the right of
citizenship by law. It provides that nothing in
the foregoing provisions of Part II shall derogate
from the power of Parliament to make any provi·
sion with respect to the acquisition and termination
of citizenship and all other matters relating to citizenship. It would thus be noticed that while ranking provisions for recognising the right of citizenship in the individuals as indicated by the respective articles, and while guaranteeing the continu·
ance of tha said rights of citizenship as specified by
Art. 10, Art. 11 confers and recognises the power
of the Parliament to make any provision with
respect tci not only acquisition but also the termination of citizenship as well as all matters relating
to citizenship. Thus, it would be open to the parliament to
affec~ the rights of citizenship and the
provisions made by the Parliamentary statute in
that behalf cannot be impeached on the ground
that they are inconsistent with the provisions contained in Art. 5 to 10 of Part II. In this connection •
1962
l•har Ahmad Khan
v.
Union of India
Gajendtagad~ ,,, J,
J962
hJrar Ahmad Kh""
v.
' Union oj India
Gajtndragadltor J ·
~46 SUPRE)!E COURT REPORTS ll962l SUPl-.
it is important tu hear in mind that Art. 11 has
been included in Part JI in order to make it clear
that the sovereign right of the Parliament to <lea!
with citizenship and all questions connected with
it is not impaired by the rest of the provisions of
the said Part. Therefore, the sovereign legislative
competence of the Parliament tu <lea! with the
topic of citizenship which is a part of Entry 17
in List I of the Seventh Schedule ill very wide and
not fettered by the provisions of Articles G to 10
of Part II of the Constitution. This aspect of the
matter may have relevance in dealing with the
contention raised Ly the petitioners that their
rights under Article HJ arc affected by the impugned provisions ot suction !!(2) of the Act.
In exercise of its legislative <mthority conferred by Entry 17 and in the ·pursuance of the
provisions of the Art. 11 of Part JI, the Parliament
passed the Act which came into force on December,
:JO,
1955. As
its preamble Rhows, it has been
passed to provide for the .acquisition and termination of the
Indian citizenship. Acquisition
of citizenship
iR
provided for
by ss. 3 to
7.
Section
:~
deals with acquisition of citizenship by birth, section 4 with acquisition by
descent, s. 5 with
acquisition by registration,
s. 6
with
acquisition
by naturalisation and
s. 7 with acquisition
by
i11corporation of territory. Having dealt with the acquisition of
citizenship by these five sections, termination of
citizenship is dealt with by ss. 8, 9 and IO.
Section
8 deals with r1munciation of citizenship, s. 9 with
tho termination of citizenship and s. 10 with its
deprivation. We are concerned with s. 9 which
deals with the termination of citizenship. This
section provides :
"(l) Any citizen of Jndia who by naturalisation, registration or otherwise volunta.rily
acquiriis, or has at any time between the 26th
J anu11ry, 1950 and the commencement of this
3 s.c.it.
SUPREME COURT REPORTS
247
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 beha)f."
There is no ambiguity about the effect of this section. It is clear that the voluntary acquisition by
an Indian citizen of the citizenship of another country terminates his citi~enship of India, provided the
said voluntary acquisition has taken place between
the 26th January, 1950 and the commencement of
the Act, or takes place thereafter. It would thus be
seen that whereas Art. 9 of the Constitution dealt
with the acquisition of citizenship of a foreign State
which had taken place prior to the commencement of
the Constitution, s; 9 of the Act deals with acquisition
of foreign citizenship subsequent to the commencement of the Constitution. There is, therefore, no doubt
that the Constitution does not favour plural or dual
citizenship and just as in regard to the period prior
to the Constitution, Art. 9 prevents a person who
had voluntarily acquired the citizenship of foreign
country from claiming the status of an Indian citizen,
so does s.9(1) make a similar provision in regard to
the period subsequent to the commencement of the
Constitution. Section 9 provides that the acquisition of foreign citizenship can be the result either
of naturalisation or registration or any other method
1962
Izhar Ahmad Kl1an
·-
Union r,f.fndia
Goje11drogodkc.•· J.
1962
lz!UJr Ahmad Khan
..
Union of !wiia
Gaje11d.agndkar J,
248 SUPREME COURT REPORTS [1962] SUPP.
of voluntarily acquiring such citizenship. Just as
the citizenship of India can LB acquired Ly naturalisation or registration, or registration, so can the
citizenship of a foregin country Le similarly acquired
by naturalisation or registration. If it is shown that
the person has acquired foreign citizenship either by
naturalisation or registration, there can be no dou Lt
that he ceases to be a citizen of Tndia. in consequence ·of such naturalisation or registration. These
two classes of foreign citizenship present no difficulty. It is only in regard to the last category of
cases where foreign citizenship is acquired otherwise than by naturalis:ttion or registration that
difficult.y may arise, But tlw position in respect
of the last cawgory of cases is also not in doubt
and that is that if it is shown that Ly some other
procedure foreign citizenship has been voluntnrily
acquired. Indian citizenship immediately comes to
an end. The proviso to sub-sectimi (I) need not
detain us bccaust> we are not concerned with the
eases falling under that proviso.
That takes us to sub cl.(:.?) of s.!J. This clause
provides that if any question arises as to the acquisition by an Indian citizen of foreign citizenship,
it shall be dotcrmiucd by such authority, in such
manner, and having regard to snch 1 ules of evidence
as may be prescribed in this behalf. In other words
if any dispute arises 11<1 to whether foreign eitizenship has be<·n acquired voluntarily by an Indian
citizen, or if it has been so acquired, when or how the
power to decide th id. question has been del1:gatcd to
the authority as may be prescribed in that behalf.
Likewi8e, the manner in which the euquiry should
be held and the rules subject to which the enquiry
should be held have also to he prescribed in that
b"half. The result of this sub-section is th:1t rules
arc to he framed prescribing the authority by which
the said questions should be tried, the manner
in which they should be tried and the rules of
evidence subject to which they should be tried.
3 $.C.R.
SUPREME COUB,T REPORTS
249
Section 18 ( l) provides that the said power to
make rules may be exercised to carry out the pur-·
poses of the Act, and sub-section (2) provides that in
particular and without prejudice to the generality
of the foregoing power,
the rules may provide
for the t.opics covered by els. (a) to ( k) of the said
sub-section.
Section 18(3) authorises the Central
Government to provide that a breach of any rule
shall be punishable with fine which may extend to
one thousand rupees ands. 18(4) requires that all
the rules made under the said section shall, as soon
as may be after they are made, be laid for not less
than 14 days before both Houses of Parliament and
shall be subject to such modifications as Parliament
may make during the' session in which
they
are so laid; This rule is intended to enable the
Parliament to exerciseZcontrol over the rules made
by the Central Government in pursuance of its
delegated authority.
In 1956, the Central Government purported to
make Rules in exercise of the powers conferred upon
it by section 18 of the Act. We are concerned with
Rule 30 in the present case.
It prescribes the
authority to determine acquisition of citizenship of
another country.
30( 1) provides that if any question arises as to whether, when or how any person
has acquired the citizenship of another country, the
authority, to determine such question shall, for the
purposes of s. 9(2), be the Central Government.
Sub-rule· (2)
provides that the Central Govern' ·
ment shall in determining any suoh question have
due regard to the rules of evidence Hpecified in
Schedule III.
·
That takes us to Schedule III which prescribes
the rules of evidence under which the enquiry under
section 9(2) would be held. Under Rule I, it is provided that if it appears to the Central Government
that a citizen of India has voluntarily acquired the
•
citizenship of any other country, it may require proof
1962
I zhar Ahmad' Khan
v.
Union of India
Gajendragadkar J.
.J:Mr Ahmad Khan
••
Unio11 of lnJia
~50 SUPRE~tE COURT REPORTS (1962] SUPP.
within the specified time that he has not so acquired
the citizenship of that country, and tho burden
of proving this shall be upon him.
Under r. 2, the
Central Government iR
empowered to make a
r<'fcrcncc in respect of any quei;tion, whith it. has to
decide in the .:nguiry, to its Em lmssy in the country
concerned or to the Government of the said country
and it authorii;cH th.: Central Governmcut to act on
any report or information reC'eived in pursuance of
such refercuce.
Then follows r. 3 the \•alidity of
whieh 1s challenged before us.
Th is rule reads
thus:
"The fac;t that a citizen of India has obtained on any date a passport from
the
Government of any other country Rhall be
conclusive proof of his having voluntarily
acquired th1• citizenship of the country before
that date."
'l'o the rnst of the rules it is unnecessary to refer.
The scope and effect of r. :i arc absolutely clear. If
it iR sho\1 n that a citi;;:cn of India has obtained a
pa8sport from a foreign Government on any ditte,
then under rule 3 an inference has to be drawn that
by obtaining the said passport hn has \'Oluntarily
acquired the citiZP1Jol1ip of that country before the
date of tho passport.
[n other words, the proof of
the fact that a passport from a foreign country has
been obtained on a certain date, conclusively determines the other fact that before that dat(l, he has
voluntarily acquired the citizenship of that country.
Th" qnestion which arises for decision is whether
this rule is constitutionally valid and if it is,
whether s. 9(2) under which the power to hold r;he
enquiry subject to the relevant rules, has hcen
delegated to th.e Central Government is itself constitutionally valid.
We will first deal with the challenge to the
validity of r. :l. The principal ground on which the
validity of r. 3 is challenged is that whereas s. !l(2)
-
-
3 s.c.R.
SUPREME COURT REPORTS
•
2~1
authorises the Central Government to prescribe rules
of evidence subject to which the relevant enquiry
should be held, what the Central Government has
purported to do in framing rule 3 is to prescribe a
rule of substantive law. The argument is that when
s. 9(2} refers to rules· of evidence, it refers obviously
to rules of evidence, properly so-called and since
the impugned rule is in substance, not a rule of
evidence but a rule of substantive law, it is outside
the purview of the delegated authority conferred by
s. 9(2) and as such, is invalid.
It.is_ true thats. 18
(1) confers on the Central Government power to
make rules to carry out the purposes of the said
Act, but this general power to make rules will
not taken within its scope the power to make a rule
of substantive law and so if the impugned rule is a
rule of substantive law and if the expression "rules
of evidence" in s. 9(2) does not include such a rule,
then clearly the challenge to the validity of the
rule will have to be upheld.
In appreciating the merits of this argument it is
.essential to bear in mind the genesis of the Law of
Evidence and the function which its enactment is
intended to discharge. The division of law into
two broad catagories of substantive law and' procedural law is well-known.
Broadly stated, whereas substantive law defines and provides for rights,
duties, liabilities, it is the function of the procedural
law to deal with the application of substantive law to
particular cases and it goes without saying 1 hat
the law of Evidence is apart of the law of procedure.
The law of the evidence deals with the question as
to what facts may, and what may not, be proved,
what sort of evidence may C!r may not be given
and by whom and in what manner such evidence
may or may not be given. Consistently, with the
broad functions of the law of evidence, the Indian
Evidence Act also deals with the topics that usually
fall within the purview of such law.
It prescribes
the rules. of relevance, it provides for the exclusion
1962
lzhar Ahmad Khan
v.
Union of India
Gajendragarikar J.
1962
I •har Ahmad Khan
v.
Union oj India
Gaj111dragadkt11 J.
252 SUPREME COURT REPORTS (1962) SUPI
of some eviden~e, as for
instance, exclusion of
hearsay evidence or of parole evidence in some
cases ; it deals with onus of proof, with the corn.
pctence of witnesses, with documentary evidence
and its proof, with presumptions and with estoppel.
"Evidence", observes Best(') "has been well <lefowd
as any matter of fact, the effect, tendency, •Jr design
of which is to produce in the mind a persuasion,
affirmative or disaffirmative of the existence of some
other matter of fact."
Judicial
evidence
with
which the Evidence Act deals is a species of the
genus "evidence", and, according to Best, is for the
most part nothing more than natural evidence, res·
trained or modified by rules of positive law.
The
statutory provisions contained in tho Law of Evidence may be said to be based on the doctrine that
that system of law is best which leaves least to the
Judges' discretion. That is why ·'th£ laws of every
well-governed State havo established rules regulating the quality, and occasionally the quantity, of
the evidence necessary to form the basis of jndicial
decision." It is in its attempt to regulate the production of and proof by evidence in a judicial enquiry that the rules of vidence refer to certain presumptions either rebutt-able or irrcbuttable. Tho
term "presumption" in its largest and moat comprehensive signification, may be defined to he an
mferencc, affirmative or disaffirmative of the truth
or fa.isehood of a doubtful fact or proposition drawn
by a process of probaulc reasoning from something
prov11d or taken for granted.
Thus, according to
·nest, when the rules of ovidenoo
provide for tho
raising of a rebuttable or irrcbuttahlo presumption,
they a.re merely attempting to assist the judicial
mind in the matter of weighing the probative or
persuasive force of certain facts proved in relation
to other facts presumed or inferred. The whole
scheme of the Evidence Act is thus intended to serve
the objective of regulating the proof of facts by
(I) The Principles of the law of E\·idcnce Twelfth Edi lion Pages
6, 23, 25 and 267.
...
•
-
3 S.C.R.
SUPREME COURT REPORTS
253
subjecting the production of evidence to the rules
prescribed in that behalf. It is in the light of this
function and objective of the Evidence
Act that
the argument of tho petitioners has to be judged.
It has been strenuously urged before us that
when the impugned rule makes it obligatory on the
enquiring authority to infer the acquisition of citizenship of foreign country from the fact that the
passport of foreign country has been obtained by
an Indian citizen, it is really not a rule of evidence properly so called but is a part of the rule of
substantive law in relation to the acquisition or
termination of citizenship. In support of this
argument, opinions of jurists have been pressed
into service. We must, therefore, briefly refer to
the said opinions and decide whether they lead to
the conclusion for which the petitioners contend.
Holdsworth observes that "the difficulty bf proving the
fac~s needed to establish legal liability
under the older modes of trial, the slow growth of
our modern mode of trial, the same difficulties even
under our modern procedure, and sometimes the
wish to modify an inconvenient law, have all at
different periods led both legislators and courts to
adopt the expedient of inventing a
presumption
of law which is some times rebuttable and sometimes irrebuttable.
These rebuttable presumptions of law no doubt belong primarily to those
particular branches of the substantive law with
which they are concerned; but they are all connected with that part of the adjective law which is .concerned with evidence; for they direct the court to
deduce particular inferences from particular facts
till the contrary is proved.
Irrebuttable presumptions of law, on the other hand belong at the present
day more properly to the substantive law than to
the law of evidence(')." Holdsworth then draws
a distinction between estoppel which is a rule of
(2) Holds,vorth on 'A History of English Law'• 1926 Vol.