|Citation||1991 AIR 1886, 1991 SCR (3) 149|
|Year of the Case||1987 & 1991|
|Petitioner||Louis De Raedt, B.E Getter & S.J Getter|
|Respondent||Union of India|
|Judges||Justice L.M Sharma & Justice Jagdish Saran Verma|
|Acts Involved||Constitution of India, Foreigners Act 1946 & Citizenship Act 1955|
|Section/ Article||Article 5 of the Constitution of India|
Article 19(e) of the Constitution of India
Article 21 of the Constitution of India
Section 3 of the Foreigners Act 1946
Section 6 of the Citizenship Act 1955
The conferment of a person as a citizen of India is governed by the Articles 5 to 11 mentioned in the Part II of the Constitution of India. According to Article 5, all the people that were born in India or were resident in India at the commencement of the Constitution were citizens of India. However, Article 9 of the Indian Constitution says that a person who voluntarily acquires citizenship of any other country is no longer an Indian citizen. In this case three foreign nationals asks for Indian Citizenship on the basis of their stay in India since pre- independence period. The case has been described in details further.
The Petitioners,Mr. Louis De Raedt, Mr. B.E. Getter and Mrs. S.J. Getter, foreign nationals engaged in Christian missionary work have been staying in India continuously fora long time since pre-independence period. They continued to stay on the basis of residential permits renewed from time to time. In 1985 an order was passed asking them to leave the country and they made representations to the authorities, followed by further representations in 1986 for naturalisation of further extension of stay. However, by order dated 8th July,1987 their request was rejected and they were asked to leave the country by 31st July, 1987. The petitioners challenged the said order in their writ petitions, that was filed before the Supreme Court of India.
- The Petitioners who are foreign nationals, Mr Louis De Raedt came to India in 1937 on a Belgium passport with British visa whereas, Mr B.E. Getter and his wife Mrs S.J. Getter in 1948 on an American passport. They all were engaged in Christian missionary work and submitted different petitions in the court against the order dated 8th July 1987 whereby their prayer for further extension of the period of their stay in India was rejected and they were asked to leave the country by31st July 1987. Mr Verghese, the learned counsel who appeared for all the three petitioners, referred to the facts in the petition of Mr Louis De Raedt and stated that the cases of the other two petitioners are similar and they are entitled to the same relief as Mr Louis De Raedt.
- According to Mr Verghese, Mr Louis De Raedt has been staying in India continuously since 1937 except on two occasions when he went to Belgium for short periods in 1966 and 1973. It was also mentioned by him that after the independence of India, appropriate orders were passed permitting many foreign Christian missionaries to stay on permanently in the country but, as in 1950 petitioner Mr Louis De Raedt was working in a certain remote area of the Adivasi belt in Bihar, so thereby, he could not obtain the necessary order in this regard. Also, referring to the Foreigners Act, it was urged that power under Section 3(2)(c) could not be exercised because the Rules under the Act have not been framed so far. Alternatively, it has been argued that the power to expel an alien also has to be exercised only in accordance with the principles of natural justice and a foreigner is also entitled to be heard before he is expelled. For all these reasons it was claimed by the Petitioners, that the impugned order dated 8th July.1987 being arbitrary should be quashed and the authorities should be directed to permit the petitioners to stay on.
- Mr Verghese also contended the fact that the Petitioner has been staying in this country since 1937 and visited Belgium only twice that is sufficient by itself to establish his case of domicile in India. It was argued that the Petitioner’s case cannot be rejected merely for the reason that he has been holding a foreign passport. However, the Respondents asserted that the petitioners did not have any intention of making their permanent home in the country of residence and of continuing to reside there permanently because, for the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind, the animus manendi. If the person claims that he acquired a new domicile at a particular time, he must prove that he had formed such intention. Residence alone unaccompanied by this state of mind is insufficient. In this case, there was no such intension visible at the part of the petitioners.
- According to Mr Verghese, by virtue of the provisions of Article 5(c) of the Constitution of India, Mr Louis De Raedt became a citizen of India on 26th November 1949 and he cannot, hence, be expelled on the assumption that he is a foreigner as foreigners also enjoy certain fundamental rights under the constitution of India. Here, Section 6 of the Citizenship Act, 1955 was given due importance. However, the learned counsel for the Respondents stated that the fundamental rights of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in India, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country.
- Lastly, Mr Verghese contended that in no event the Superintendent of Police who signed the impugned order is authorised to direct deportation of the petitioner. To this, Respondents argued that the order was not passed by the Superintendent of Police; the decision was of the Central Government which was being executed by the Superintendent, as is clear from the order itself.
- Whether Mr Louis De Raedt and other two Petitioners are entitled to Indian Citizenship under Article 5(c) of the Constitution of India?
- Whether the Petitioner, Mr Louis De Raedt was having domicile in the territory of India at the commencement of the Constitution as asserted under Article 5 of the Constitution?
- Whether at the commencement of the Constitution of India the Petitioners had an intention of staying in India permanently?
Article 32 of the Indian Constitution of India
This Article allows a person to move to the Supreme Court when they have been aggrieved and allows the Supreme Court to issue writsfor the enforcement of the Fundamental Rights. The rights guaranteed by this article shall not be suspended as otherwise provided for by this Constitution.
Article 5 of the Constitution of India
This article speaks about the Citizenship of India at the commencement of the Constitution. Under this, every person who was born and has his domicile in the territory of Indiaoreither of whose parents was born in the territory of Indiaorwho has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.
Article 19(1)(e) of the Constitution of India
This part of the Article deals with theprotection of certain rights regarding freedom of speech. It confers the right to reside and settle in any part of the territory of India to the people.
Article 21 of the Constitution of India
This Article deals with the protection of life and personal liberty. Under this, no person shall be deprived of his life or personal liberty except according to procedure established by law.
Section 3(2)(c) of the Foreigners Act, 1946
According to this part of the Section, the foreigner shall not remain inIndia, or in any prescribed area therein, if he has been required by order under this section not to remain in India.
Section 6 of the Citizenship Act, 1955
Under this Section, where an application is made in the prescribed manner by any person of full age and capacityfor the grant of a certificate of naturalisation to him, the Central Government may, if satisfied that the applicant is qualified for naturalisation under the provisions of the Third Schedule, grant to him a certificate of naturalisation.
Mohd. Ayub Khan v. Commissioner of Police, Madras and Another
In this case, the appellant had made an application to the Central Government under Section 9(2) of the Indian Citizenship Act, 1955 for the determination of his citizenship. Section 9(1) says that if any citizen of India acquired the citizenship of another country between 26.1. 1950 and the commencement of the Citizenship Act, he ceased to be a citizen of India and sub-section (2) directs that if any question arises as to whether, when or how any person has acquired the citizenship of another country, he shall be determined by the prescribed authority. Mohd. Ayub Khan was a citizen of India at the commencement of the Constitution of India and was asked to leave the country for the reason that he had obtained a Pakistani Passport. Therefore, he was provided the Indian Citizenship.
Kedar Pandey v. Narain Bikram Singh
In this, the Respondent Narain Bikram Singh, who claimed to have acquired Indian citizenship, had extensive properties at large number of different places in India and had produced many judgments showing that he was earlier involved in litigations relating to title. He was born at Banaras and his marriage with a girl from Himachal Pradesh also took place at Banaras. His children were born and brought up in India. Besides his other activities supporting his case, he also produced his Indian passport.On a consideration of the entire facts and circumstances the Court concluded that “the requisite animus manendi as has been proved in the finding of the High Court is correct”.
Union of India v. Ghaus Mohammad
The case was governed by Section 9 of the Foreigners Act, 1946 under which when a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner is on that person. In this case, the High Court was in error in placing on the Union of India the burden of proving that the respondent was a foreigner.
Central Bank of India v. Ram Narain
It was stated in this case that although it is impossible to lay down an absolute definition of domicile, it is fully established that an intention to reside for ever in a country where one has taken up his residence is an essential constituent element for the existence of domicile in that country. It was also pointed out that if a person leaves the country of his origin with undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country.
Hans Muller of Nurenburg v. Superintendent Presidency Jail, Calcutta and Others
In this case, it was held by the Constitution Bench that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution lettering this discretion. It was pointed out that the legal position on this aspect is not uniform in all the countries but so far, the law which operates in India is concerned, the Executive Government has unrestricted right to expel a foreigner.
The Judgment of the Court was in favour of the Respondents and was delivered by Justice L.M. Sharma. The Petitioners, Mr Louis De Raedt, Mr B.E. Getter and Mrs S.J. Getter were denied Indian Citizenship and all the three petitions filed by them were dismissed by the Court but without costs.
Indian Citizenship is guaranteed to only those who were born and has his domicile in the territory of India or either of whose parents was born in the territory of India or who has been ordinarily resident in the territory of India for not less than five years preceding the commencement of the Constitution, as mentioned in Article 5 of the Constitution of India.Mr. Louis De Raedt, Mr B.E. Getter and Mrs S.J. Getter being foreign nationals who were indulged in Christian missionary work, initially did not have any intention to stay in India permanently and later gathered the same on account of which they were denied Indian Citizenship. It can be concluded that not every person who is not a part of India can be provided with its Citizenship, there should be relevant grounds to which Court can adhere while considering the same.
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