Sec 9 of Citizenship Act, 1955 - Analysis of Case Law

Section 9 of the Citizenship Act, 1955 makes provision for termination of citizenship. The Section reads as follows:

“9. Termination of Citizenship- (1) Any citizen of India who by naturalization, registration 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 citizen of India:

Provided that nothing in this sub-section shall apply to a citizen 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 citizen of India 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 behalf.”

This Section, particularly Sub-Section (2), has been subjected to a great deal of judicial scrutiny. In three types of cases, this Section is generally invoked. One is in the matter of criminal proceedings in which citizenship of India is in issue, second in a consequent civil suit to determine citizenship cases and thirdly in election petition involving citizenship. In this article, an effort is made to deal in each of the three cases where the Supreme Court had occasion to deal with the interpretation of the provision.

Nature of the provision

Before going into the cases, it is necessary to analyse the sub-section. The sub-section relates to the provision regarding termination of citizenship. In case one person voluntarily acquires the citizenship in another country, by whatever manner, he loses Indian citizenship. Now, the question as to when, how the person has acquired citizenship of foreign country shall be determined by the prescribed authority. The Citizenship Rule, 1956 Rule 30 prescribes that the authority is Central Government. The decision of the Central Government in this regard is final. The question is whether sub-section (2) clearly excludes any type of judicial intervention in this matter. The Section is a complete code in the matter of termination of citizenship. The right or liability in question is a purely statutory one having existence only under the Citizenship Act, 1955. The Act has also provided the manner of determination. That determination is substantially same as the civil court would have done in such case. So, by clear implication, the jurisdiction of civil courts is barred. Second question is whether in a criminal proceeding pertaining to Foreigners Act, 1946 where the citizenship is in issue, the criminal court may determine the loss of citizenship. Here again, the answer is no.

Case Law

Case No 1: Akbar Khan Vs Union of India AIR 1962 SC 70

This is a case in which a civil suit was filed by the appellant in District Court of Jhabua, Madhya Pradesh for a declaration that he was a citizen of India. In the pleading it was mentioned that he was citizen of India at the commencement of the Constitution. He went to Pakistan for temporary visit. He was forced to take Pakistan Passport against his will to enter into India.

Given the background of the case, defense was taken of the provision of Section 9(2) of the Citizenship Act, 1955 alleging that civil court’s jurisdiction is barred. The trial court as well as the MP High Court dismissed the suit as barred. In SLP, the Supreme Court has made the interpretation of the section in its proper context. As any provision affecting jurisdiction of court has to be strictly construed, the proper interpretation is that only the matters which is subject to determination by the Central Government, civil court has no jurisdiction. Only the question whether, how and when the citizen of India voluntarily acquired citizenship of foreign country, are subject to determination by the Central Government. The question whether the person is an Indian citizen or not is within the civil court’s competence. In deciding the suit, if any such issue comes, then it should be referred to the Central Government for its decision which would be final.

Case No 2: State of Gujarat Vs Yakub Ibrahim AIR 1974 SC 645

In this case, the Respondent was charged with Foreigners’ Order, 1958 for overstaying in India. He was there in India on a Pakistani Passport. In the trial court, plea was taken that he was citizen of India at the commencement of the Constitution. He went to Pakistan and against his will he had to take Pakistan Passport to enter India.

One of the questions in this case was whether during the material point of time he was a foreign national. As a corollary to it one issue was whether he lost Indian citizenship. The trial court and High Court acquitted on the ground that no decision of Central Government was produced by the prosecutors u/s 9(2) of Citizenship Act, 1955. On SLP by the State, the Supreme Court held that the prosecution has to be based on the determination of the issue by the Central Government under Section 9(2). Criminal court has no jurisdiction to determine the same. As no charge can be framed without the determination, the court can neither convict nor acquit.

Case No 3: Bhagwati Prasad Dixit Vs Rajeev Gandhi AIR 1986 SC 1534

This is an Election Petition in which the election of Rajeev Gandhi from Amethi Parliamentary Constituency was challenged on various grounds- one of which was that he voluntarily acquired citizenship of Italy by marrying one Italian National and acquiring property there. The Supreme Court dealt with the issue by making strict interpretation of the provision of Section 9(2) of the Act.

There was no dispute that the Respondent was a citizen of India. In the system of law provided by Section 9, the question of acquisition of foreign citizenship has to be decided by the Central Government. In the absence of such determination, it has to be presumed that the Respondent is a citizen of India. The High Court acting as a Election Tribunal has only limited power. No power to determine such question which by law, is conferred on the Central Government, can be made by the High Court.

Conclusion

The three cases, mentioned above, show how the Section 9 (2) of Citizenship Act, 1955 has been construed under different situations. The age-old judicial wisdom to construe such provisions affecting the jurisdiction of courts strictly and only in the context in which it is enacted is very much visible.