Full Judgment Text
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PETITIONER:
MR. LOUIS DE RAEDT & ORS.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT24/07/1991
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1991 AIR 1886 1991 SCR (3) 149
1991 SCC (3) 554 JT 1991 (3) 306
1991 SCALE (2)127
ACT:
Constitution of india, 1950: Article
5--‘domicile’--Meaning of-Domicile of origin and domicile of
choice--difference between-Domicile of choice--How
acquired--Intention to stay permanently-Burden of proof.
Articles 19(1)(e) and 21---Foreigner not acquiring
Indian citizenship-Not entitled to fundamental right under
Article 19(1)(e)--Fundamendal right under Article 21 avail-
able--Right of Government to expel persons--Whether absolute
and unrestricted.
Foreigners Act, 1946: Section 3--expulsion of foreigner
from India on his failure to acquire Indian
citizenship---Right of Government of India--Whether absolute
and unrestricted--Decision to deport taken by the competent
authority, the Central Government--Superintendent of Police
merely executed the order--Hence not vitiated.
Citizenship Act, 1955: Section 6 and third
Schedule---Citizenship--Acquiring of--Domicile by
choice--Intention to permanently stay in India--Burden of
proof--Staying in India with foreign passports with residen-
tial permits renewed from time to time--Whether establishes
animus manendi--Whether entitled to citizenship.
Private International Law: Foreigner staying in India on
Residential permits renewed from time to time--Indian citi-
zenship not acquired --Right of Central Government to expel.
Administrative Law: Principles of Natural
Justice--Hearing-Expulsion of foreigner not acquiring Indian
citizenship--Opportunity of caring--No hard and fast
rule--Absence of material in support of his claim--Non
affording of opportunity before passing the expulsion
order--Whether vitiated.
HEADNOTE:
The Petitioners, foreign nationals engaged in Christian
missionary work have been staying in India continuously for
a long time since pre-independence period. They continued to
stay on the basis of resi-
149
150
dential permits renewed from time to time. In 1985 an order
was passed asking them to leave the country and they made
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representations to the authorities, followed by further
representations in 1986 for naturalisation further extension
of stay. However by order dated 8.7.1987 their request was
rejected and they were asked to leave the country by 31st
July, 1987. The petitioners challenged the said order in the
writ petitions filed before this Court.
It was contended by the petitioners that since they
were staying in this country for a period of more than five
years immediately preceding the commencement of the Consti-
tution, they should be held to have duly acquired Indian
citizenship on the basis of Article 5(e) of the Constitution
of India; that their continuous stay in India has estab-
lished their case of domicile in India which cannot be
rejected merely because were holding foreign passports; that
proceedings against them have been initiated under section 9
of the Foreigners Act enabling them to defend their case;
that they were denied hearing; and that in no event the
Superintendent of Police who had signed the deportation
order was authorised to do so.
Dismissing the Writ Petitions, this Court,
HELD: 1. Every person must have a personal law, and accord-
ingly every one must have a domicile. He receives at birth a
domicile of origin which remains his domicile, wherever he
goes, unless and until he acquires a new domicile. The new
domicile, acquired subsequently, is generally called a
domicile of choice. The domicile of origin is received by
operation of law at birth and for acquisition of a domicile
of choice one of the necessary conditions is the intention
to remain there permanently. The domicile of origin is
retained and cannot be divested until the acquisition of
the domicile of choice. By merely leaving his country, even
permanently, one will not, in the eye of law, lose his
domicile until he acquires a new one. This proposition that
the domicile of origin is retained until the acquisition of
a domicile of choice is well established and does not admit
of any exception. [156D-F]
Central Bank of India v. Ram Narain, [1955] 1 SCR 697,
relied on.
Halsbury’s Laws of England, 4th Edn., Vol. 8, para
421, referred to.
2. One of the necessary conditions mentioned in Article 5 of
the
151
Constitution is that the person concerned must be having his
domicile in the territory of India at the commencement of
the Constitution. It is not established that they had such
an intention for the sole reason that the Petitioners’have
been staying in India for more than a decade before the
commencement of the Constitution, and it cannot be deemed
that they acquired domicile in India and consequently Indian
citizenship. [154E]
3.1. 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 he claims that he acquired a
new domicile at a particular time, he must prove that he had
formed the intention of making his permanent home in the
country of residence and of continuing to reside there
permanently. Residence alone, unaccompanied by this state of
mind, is insufficient. [156H; 157A]
3.2. The burden to prove that the petitioners had an
intention to stay permanently in India lies on them. The
available materials on the record leave no room for doubt
that the petitioners did not have such intention. At best it
can be said that they were uncertain about their permanent
home. During the relevant period very significant and vital
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political and social changes were taking place in this
country, and those who were able to make up their mind to
adopt this country as their own, took appropriate legal
steps. The petitioners preferred to stay on, on the basis of
their passports issued by other countries, and obtained from
time to time permission of the Indian authorities for their
further stay for specific periods. None of the applications
filed by the petitioners in this connection even remotely
suggested that they had formed an intention of permanently
residing here. [157B-D]
Mohd. Ayub Khan v. Commissioner of Police, Madras,
[1965] 2 SCR 884 and Kedar Pandey v. Narain Bikram Sah,
[1965] 3 SCR 793, distinguished.
Union of India v. Ghaus Mohammed, [1962] 1 SCR 744, referred
to.
4. The fundamental right of the foreigner is confined to
Article 21 for life and liberty and does not include the
right to reside and settle in this country, as mentioned in
Article 19(1)(e), which is applicable only to the citizens
of this country. The power of the Government in India to
expel foreigners is absolute and unlimited and there is no
provision in the Constitution fettering this discretion. The
legal position on this aspect is not uniform in all the
countries but so far the law which
152
operates in India is concerned, the Executive Government has
unrestricted right to expel a foreigner. [158C-E]
Hans Muller of Nurenburg v. Superintendent, Presidency
Jail, Calcutta & Ors., [1955] 1 SCR 1284, relied on.
5. So far the right to be heard is concerned, there
cannot be any hard and fast rule about the manner in which a
person concerned has to be given an opportunity to place his
case and it is not claimed that if the authority concerned
had served a notice before passing the impugned order, the
petitioners could have produced some relevant material in
support of their claim of acquisition of citizenship, which
they failed to do in the absence of a notice. [158E-F]
6. The contention that the Superintendent of Police was
not authorised to direct deportation of the petitioners, is
devoid of merit. Actually the order was not passed by the
Superintendent of Police. It was the decision of the Central
Government, which was being executed by the Superintendent
of Police. This is clear from the order. [158G]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1410 of
1987.
(Under Article 32 of the Constitution of India).
WITH
Writ Petition (Criminal) No. 528 of 1987.
AND
Writ Petition (Civil) No. 1372 of 1987.
J.P. Verghese, Aby T. Varkey and N.N. Sharma for the
Petitioners.
Altar Ahmed, ASG. U.N. Bachawat, R.B. Mishra, Ms. A.
Subhashini and Uma Nath Singh for the Respondents.
The Judgment of the Court was delivered by
SHARMA, J. By these three petitions under Article 32 of
the Constitution, the petitioners who are foreign nationals,
have challenged the order dated 8.7.1987 whereby their
prayer for further extension of the period of their stay in
India was rejected and they were
153
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asked to leave the country by the 3 1st July, 1987. Mr.
Louis De Raedt, petitioner in W.P. (C) No. 1410 of 1987,
came to India in 1937 on a Belgium passport with British
visa and Mr. B.E. Getter the petitioner in W.P. (Crl.) No.
528 of 1987 in 1948 on an American passport and both have
been engaged in Christian missionary work. The petitioner in
W.P. (C) No. 1372 of 1987, Mrs. S.J. Getter is Mr. B.E.
Getter’s wife. Mr. Verghese, the learned counsel, who ap-
peared for the three petitioners, referred to the facts in
W.P. (C) No. 1410 of 1987 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.
2. According to his case, Mr. Louis De Raedt has been
staying in India continuously since 1937 excepting on two
occasions when he went to Belgium for short periods in 1966
and 1973. It has been contended that by virtue of the provi-
sions of Article 5(c) of the Constitution of India the
petitioner became a citizen of this country on 26.11.1949,
and he cannot, therefore, be expelled on the assumption that
he is a foreigner. Referring to the Foreigners Act it was
urged that power under Section 3(2)(c) could not be exer-
cised 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 is claimed that the impugned order dated
8.7.1987 being arbitrary should be quashed and the authori-
ties should be directed to permit the petitioners to stay
on.
3. It has been contended by Mr. Verghese that after the
independence of India, appropriate orders were passed per-
mitting many foreign Christian missionaries to stay on
permanently in the country but, as in 1950 petitioner Mr.
Louis De Raedt was working in certain remote area of the
Adivasi belt in Bihar, he could not obtain the necessary
order in this regard. Later, however, he had also filed
applications for the purpose which have remained undisposed
of till today. 1985 an order was passed asking him to leave
the country, and he made a representation to the authorities
on 20.9. 1985, a true copy Whereof is Annexure I to the writ
petition. On 1.3.1986 he filed another application for
naturalisation, a copy whereof has been marked as Annexure
II. A copy of his third application dated 15.3.1986 is
Annexure III. The impugned order Annexure IV was passed in
this background.
4. The main ground urged by the learned counsel is based on
154
Article 5 of the Constitution, which reads as follows:
"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 immediately preceding such commencement,
shall be a citizen of India."
The argument is that since Mr. Louis De Raedt was staying in
this country since 1937, that is, for a period of more than
five years immediately preceding the commencement of the
Constitution, he must be held to have duly acquired Indian
citizenship.
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5. One of the necessary conditions mentioned in Article
5 of the Constitution is that the person concerned must be
having his domicile in the territory of India at the com-
mencement of the Constitution. The question is as to whether
the petitioner fulfils this condition? The facts stated by
the petitioner himself do not leave any room for doubt that
he did not have his domicile here. In his application dated
20.9.1985 addressed to the Home Minister, Government of
Madhya Pradesh, Bhopal, Annexure I, the petitioner stated
that he had been staying in this country on the basis of
residential permit renewed from time to time and when he had
gone to Belgium, "No Objection to Return" Certificate was
issued without difficulty. He asserted that since he was
working in education and social work for a long period he
was "more Indian than Belgium". Towards the end of his
application he stated thus:
"Therefore, I plead for a cancellation of the
above order on compassionate ground.
I would request Your Honour to
kindly allow me to stay in India till the end
of my life by extending my residential permit.
For this act of kindness I will be ever grate-
ful to
(emphasis added)
155
In his application dated 1.3. 1986 addressed to the Collec-
tor, Surguja (Madhya Pradesh), which is Annexure II, he
mentioned the subject as "request for naturalisation". In
this application he referred to the provisions of Article 5
of the Constitution as a basis of his claim but concluded
his prayer thus:
"If however Government decides that I have
LOST my citizenship (sic) would be grateful to
be informed about it. So that I can apply
under one of the naturalisation Act. (Sic)"
He reiterated his stand in Annexure III dated 15.3. 1986.
6. The entire relevant official records were available
with the learned counsel for the respondents during the
hearing of the case, which indicated that the impugned order
(Annexure IV) was passed on the basis of another application
of the petitioner filed earlier on 25.1. 1980. Photostat
copies of the said application were filed and kept on the
records of the case. It was stated therein that the autho-
rised period for his stay in India was going to expire on
3.3. 1980. It contained a prayer for the extension of the
period of stay by one year. The petitioner mentioned the
reason for extension of this stay thus: "to do further
social work as a missionary". The purpose of his visit to
India was also similarly mentioned: "to do social work as a
missionary". There was no indication whatsoever in the said
application that he intended to stay in this country on a
permanent basis. The period for which the extension was
asked for being one year only indicated that by 1980 he had
not decided to reside here permanently.
7. Mr. Verghese has contended that the fact that the
petitioner has been staying in this country since 1937 and
visited Belgium only twice is sufficient by itself to estab-
lish 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. Reliance was
placed on Mohd. Ayub Khan v. Commissioner of Police, Madras
and Another, [1965] 2 SCR 884 and Kedar Pandey v. Narain
Bikram Sah, [1965] 3 SCR 793. Reference was also made to
Union of India v. Ghaus Mohammed, [1962] 1 SCR 744, and it
was argued that ’a proceeding ought to have been started
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against the petitioner under Section 9 of the Foreigners Act
where he should have been allowed to defend. The learned
counsel submitted that even a foreigner who comes on the
strength of a foreign passport, in case of his overstaying
has to be heard before he can be thrown out, and this has
been denied to the petitioners.
156
8. Lastly, Mr. Verghese contended that in no event the
Superintendent of Police who signed the impugned order, i.e.
Annexure, IV, is authorised to direct deportation of the
petitioner.
9. There is no force in the argument of Mr. Verghese
thai for the sole reason that the petitioner has been stay-
ing in this country for more than a decade before the com-
mencement of the Constitution, he must be deemed to have
acquired his domicile in this country and consequently the
Indian citizenship. Although it is impossible to lay down an
absolute definition of domicile, as was stated in Central
Bank of India v. Ram Narain, [1955] 1 SCR 697 it is fully
established that an intention to reside for ever in a coun-
try where one has taken up his residence is an essential
constituent element for the existence of domicile in that
country. Domicile has been described in Halsbury’s Laws of
England, 4th edition, Volume 8, Paragraph 42 1) as the legal
relationship between individual and a territory with a
distinctive legal system which invokes that system as his
personal law. Every person must have a personal law, and
accordingly every one must have a domicile. He receives at
birth a domicile of origin which remains his domicile,
wherever he goes, unless and until he acquires a new domi-
cile. The new domicile, acquired subsequently, is generally
called a domicile of choice. The domicile of origin is
received by operation of law at birth and for acquisition of
a domicile of choice one of the necessary conditions is the
intention to remain there permanently. The domicile of
origin is retained and cannot be divested until the acquisi-
tion of the domicile of choice. By merely leaving his coun-
try, even permanently, one will not, in the eye of law, lose
his domicile until he acquires a new one. This aspect was
discussed in Central Bank of India v. Ram Narain (supra)
where it was 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. The position was summed in Halsbury
thus:
"He may have his home in one country, but be
deemed to be domiciled in another."
Thus the proposition that the domicile of origin is retained
until the acquisition of a domicile of choice is well estab-
lished and does not admit of any exception.
10. For the acquisition of a domicile of choice, it must
he shown that the person concerned had a certain state of
mind, the animus
manendi. If he claims that he acquired a new domicile at a
particular time, he must prove that he had formed the inten-
tion of making his permanent home in the country of resi-
dence and of continuing to reside there permanently. Resi-
dence alone, unaccompanied by this state of mind, is insuf-
ficient.
11. Coming to the facts of the present cases the ques-
tion which has to be answered is whether at the commencement
of the Constitution of India the petitioners had an inten-
tion of staying here permanently. The burden to prove such
an intention lies on them. Far from establishing the case
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which is now pressed before us, the available materials on
the record leave no room for doubt that the petitioners did
not have such intention. At best it can be said that they
were incertain about their permanent home. During the rele-
vant period very significant and vital political and social
changes were taking place in this country, and those who
were able to make up their mind to adopt this country as
their own, took appropriate legal steps. So far the
three petitioners are concerned, they preferred to stay on,
on the basis of their passports issued by other countries,
and obtained from time to time permission of the Indian
authorities for their further stay for specific periods.
None of the applications filed by the petitioners in this
connection even remotely suggests that they had formed any
intention of permanently residing here.
12. None of the cases relied upon on behalf of the
petitioners is of any help to them. The case of Mohd. Ayub
Khan was one where 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 citizen-
ship. Section 9(1) says that if any citizen of India ac-
quired 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 this country 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. The
question which thus arose in that case was entirely differ-
ent. The case of Kedar Pandey v. Narain Bikram Sah, (supra),
does not help the petitioners at all. On a consideration of
the entire facts and circumstances this Court concluded that
"the requisite animus manendi as has been proved in the
finding of the High Court is correct". The Respondent Narain
Bikram Sah, who claimed to have acquired Indian citizenship,
had extensive properties at large number of different places
in India and had pro-
158
duced many judgments showing that he was earlier involved in
litigations relating to title, going upto the High Courts in
India and some time the Privy Council stage. He was born at
Banaras and his marriage with a girl from Himachal Pradesh
also took place at Banaras and his children were born and
brought up in India. Besides his other activities supporting
his case, he also produced his Indian passport. In the cases
before us the learned counsel could not point out a single
piece of evidence or circumstance which can support the
petitioners’ case, and on the other hand they have chosen to
remain here on foreign passports with permission of Indian
authorities to stay, on the basis of the said passports.
Their claim, as pressed must, therefore, be rejected.
13. The next point taken on behalf of the petitioners,
that the foreigners also enjoy some fundamental right under
the Constitution of this country, is also of not much help
to them. The fundamental right of the foreigner is confined
to Article 21 for life and liberty and does not include the
right to reside and settle in this country, as mentioned in
Article 19(1)(e), which is applicable only to the citizens
of this country. It was held by the Constitution Bench in
Hans Muller of Nurenburg v. Superintendent, Presidency Jail,
Calcutta and Ors, [1955] 1 SCR 1284 that the power of the
Government in India to expel foreigners is absolute and
unlimited and there is no provision in the Constitution
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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. So far the right to be heard is concerned, there
cannot be any hard and fast rule about the manner in which a
person concerned has to be given an opportunity to place his
case and it is not claimed that if the authority concerned
had served a notice before passing the impugned order, the
petitioners could have produced some relevant material in
support of their claim of acquisition of citizenship, which
they failed to do in the absence of a notice.
14. The last point that the impugned order (Annexure IV)
passed. by the Superintendent of Police, who was not autho-
rised to so, is also devoid of any merit. 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.
15. For the reasons mentioned above, we do not find any
merit in the petitions, which are accordingly dismissed, but
without costs.
G.N. Petitions
dismissed.
159