Izhar Ahmad Khan v. Union of India

Gajtndragatlkm J. tion 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 deci-sion 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, I•I l!J59. In the petition orginally filed by him, the petitioner's contention was that h" was not a or-foreigner within the meanin~ of the Foreigners Act 1962 aad he ch 1.l\enged the validity of the relevant oper· lzhar Ahmad •• Kha,. tive sections of the said Act.

Union of India After notice was served on the Union of India, the Sta.~e of Madhya Pradesh and the District Gajendragadkar J. 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 intima-ted 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 judg-ment, 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· peti-tion No. 136 of 1959, claims to be a citizen of India 1962 and was a resident of Bhopal. In 1951, his family lz;hat Ahn11d AA!um received the news from Paki~ta.n that his cider

v. brother Syed Hassan was seriously ill. That is Union of India why the petitioner with his mother and younge,r Goj1ndragadkar J, 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 per-manently 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 sec-tion 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 For-eigners Act on the ground that the petitioner was not a foreigner be and that the relevant provisions could not 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 con-clusion 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,

Habib Hidayatullah, the petitioner in petition No. 1961 88 of 1961, claims to be a citizen of India and comp-lzkar Ahmad Kliao lains that his fundamental rights nuder Art. 19 of the v, Constitution are being infringed because he is about Union of India to be deported out of India on the ground that he Gajtndragodkar J, 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 pass-port 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 peti-tioner 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 peti-tioner had ceased to be a citizen of India. The Govern-ment of India then took action under section 9(2) of the Act and has held that the petitioner has volun-tarily acquired the citizenship of Pakistan after

244 S'L'PRE:IIE COURT REPORTS [1962] SUPP.

1962 26th January, 1950, ancl before t.h., 14th December, l.tMr A::mad Khan 195i. After this order was communicated to the

v. petitioner, he took additional grounds and amongst Union oj India them, are the two points which have Leen already G,.jtndragadkaf' J. 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 1962 Constitution, a person had voluntarily acquired the l•har Ahmad Khan citizenship of any Foreign State, he is not entitled v. to claim the citizenship of India by virtue of Art. 5 Union of India or Art. 6 or Art. 8. This article thus deals with Gajendtagad~ J, cases where citizenship of a foreign State had been acquired by an Indian citizen prior to the comm· encement of the Constitution. Article 10 guaran-tees 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 citi-zen; but this guarantee is subject to the important condition that it would be governed by the provi-sions 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 citi-zenship. It would thus be noticed that while rank-ing provisions for recognising the right of citizen-ship in the individuals as indicated by the respec-tive 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 termi-nation of citizenship as well as all matters relating to citizenship. Thus, it would be open to the par-liament 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 con-tained in Art. 5 to 10 of Part II. In this connection •

~46 SUPRE)!E COURT REPORTS ll962l SUPl-. J962 it is important tu hear in mind that Art. 11 has hJrar Ahmad Kh"" been included in Part JI in order to make it clear

v. that the sovereign right of the Parliament to <lea! Union oj India with citizenship and all questions connected with Gajtndragadltor J · 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 impug-ned provisions ot suction !!(2) of the Act.

In exercise of its legislative <mthority confer-red 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 termi-nation of the Indian citizenship. Acquisition of citizenship iR provided for by ss. 3 to 7. Section :~ deals with acquisition of citizen-ship 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 ter-ritory. 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 natura-lisation, registration or otherwise volunta.rily acquiriis, or has at any time between the 26th J anu11ry, 1950 and the commencement of this

Act voluntarily acquired, the citizenship of 1962 another country, shall, upon such acquisition Izhar Ahmad ·- Kl1an or, as the case may be, such commencement, cease to be a citizen of India : · Union r,f.fndia

Provided· that nothing in this sub-section Goje11drogodkc.•· J. shall apply to a citizen of India who, during any war in which India may be engaged, volun-tarily acquires the citizenship of another.

country, until the Central Government other-wise 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 sec-tion. It is clear that the voluntary acquisition by an Indian citizen of the citizenship of another coun-try 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 commence-ment 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 acquisi-tion of foreign citizenship can be the result either of naturalisation or registration or any other method 1962 of voluntarily acquiring such citizenship. Just as lz!UJr Ahmad .. Khan the citizenship of India can LB acquired Ly natur-

alisation or registration, or registration, so can the Union of !wiia citizenship of a foregin country Le similarly acquired Gaje11d.agndkar J, 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 conseque-nce ·of such naturalisation or registration. These two classes of foreign citizenship present no difficul-ty. It is only in regard to the last category of cases where foreign citizenship is acquired other-wise 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 acqui-sition 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 eitizen-ship 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 1962 make rules may be exercised to carry out the pur-· I zhar Ahmad' Khan poses of the Act, and sub-section (2) provides that in v. particular and without prejudice to the generality Union of India of the foregoing power, the rules may provide Gajendragadkar J. 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 ques-tion 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 pro-vided 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

~50 SUPRE~tE COURT REPORTS (1962] SUPP.

within the specified time that he has not so acquired .J:Mr Ahmad Khan the citizenship of that country, and tho burden

of proving this shall be upon him. Under r. 2, the Unio11 of lnJia 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 ob-tained 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 deter-mines 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 con-stitutionally 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) authorises the Central Government to prescribe rules 1962 of evidence subject to which the relevant enquiry lzhar Ahmad Khan should be held, what the Central Government has v. purported to do in framing rule 3 is to prescribe a Union of India rule of substantive law. The argument is that when Gajendragarikar J. 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' pro-cedural law is well-known. Broadly stated, where-as 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 of some eviden~e, as for instance, exclusion of I •har Ahmad Khan hearsay evidence or of parole evidence in some

v. cases ; it deals with onus of proof, with the corn. Union oj India pctence of witnesses, with documentary evidence Gaj111dragadkt11 J. 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 Evi-dence 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 regu-lating 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 pro-duction of and proof by evidence in a judicial en-quiry that the rules of vidence refer to certain pre-sumptions either rebutt-able or irrcbuttable. Tho term "presumption" in its largest and moat com-prehensive 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.

subjecting the production of evidence to the rules 196! prescribed in that behalf. It is in the light of this Izha, Ahmad Kh•• function and objective of the Evidence Act that v. the argument of tho petitioners has to be judged. Union of India

It has been strenuously urged before us that Gajendragadkar J. when the impugned rule makes it obligatory on the enquiring authority to infer the acquisition of citi-zenship 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 evid-ence 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 prov-ing 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 some-times irrebuttable. These rebuttable presump-tions of law no doubt belong primarily to those particular branches of the substantive law with which they are concerned; but they are all connect-ed with that part of the adjective law which is .con-cerned with evidence; for they direct the court to deduce particular inferences from particular facts till the contrary is proved. Irrebuttable presum-ptions 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. IX, Pages 143-144.

2.14 SUPREllIE OOURT REPORTS [1962] SUPP.

H62 evidence and irrebuttable presumption by observ- /.::har Ahmad KhGn ing that "while an irrebuttable · presumption is in

v. effect a rulo of substantive law, to the effect that Union nf 1 ndia when certain facts exist a particu Jar inference shall Goj111dr 1gadkar J. be drawn an cstoppel is a rule of evidence that

when, as between two parties to a litigation, certain facts are proved, no evidence to combat those facts can be received." Thus, according to Holds· worth, irrebuttable presumptions arc always a mat· ter of substantive law, not so rebuttable presump-tions, and estoppel is a rule of evidence and not 11 rulo of substantive law.

Wigmoro expresses the same opnuon about the character of irrebuttahle presumptions, for he savs that "wherever from one fact another is said to' be conclusively presumed, in the sense that the opponent is absolutely precluded from sbowing by any evidence that the second fact does not exist, the rule is really providing that, where the first fact is shown to exist, the second facts existence is wholly immaterial for the purpoqe of the propo· nent's case; and to provide this is to make a rule of substantive Jaw, and not a rule apportioning the burden of persuading as to certain proposilions or varying the duty of coming forward with eviclcnce(')" V\7ith rpspcct, it is doubtful whether it is correct to say that in drawing a eonclusi,·o pre-sumption from one fact proved abot1t the existen~e of another fact, the rule rend('rs the second fact's existence wholly immaterial. What. the rule pro-vides is that the probative or perHua.sive valuo of the proved fact in relation to the fa.ct not proved is so great that.the fact not proved should alway~ be taken to be proved once the otber fact is pro-ved. In any case, t.he opinion of Wigmore is m favour of the contentions raised by tho petitioners. Phipson puts the proposition in somewhat guarded and qualified terms. "In many CILses"

~I) \\'ign1orc on Evidence IX Edition J>. 292, Para. 2192.

he observes, "these so called conclusive presump· 1962 tions are rules which belong properly speaking, to I:::liar .fhmarl Khan the various branches of substantive ·law and not v. to the Jaw of evidence, such as the presumption Union of India that an infant under seven is incapable of committ-Gajendragadkar .1. ing a felony or that all men know the law ( i. e., that ignorance of.the law is no excuse for crime)." (1).

It would thus be noticed that according to Phipson, it is not true as a general inflexible rule that all conclusive presumptions pertain to the branch of substantive Jaw and he has illustrated his statement by taking two instances of conclusive presumptions to show that the said presumptions are really matters of substantive law. Therefore, if the test I laid down by Phipson is reliable then the question as to whether a conclusive presumption in a given case is a part of the substantive law or forms a part of the rule of evidence, properly so called. Will have to be decided in the light of the content of the rule and its implications.

Stephen also has considered this problem.

"Conclusive presumptions". he says, "appear to me to belong to different branches of the Substantive Law, and to be unintelligible except in connection with them. Take for instance the presumption that every one knows the law. This rule cannot be properly appreciated if it is treated as a part of the Law of Evidence. It belongs to the Criminal Law. In the same way, numerous presumptions as to rights of property (in particular easements and incorporal hereditaments) belong not to the Law of Evidence but to the Law of Real Property'.

Having said so, the learned author adds that '·the only presumptions which, in my opinion, ought to find a place in the Law of Evidence, arc those which relate to facts merely as facts and apart from the part.icular rights which thuy constitute(').

That is how in his Digest, he has included certain

(l) Phipson on Evidence. JX Edition P. 698.

~2) Stephens Digest of the Law of Evidence, page ~vii.

1962 presumptions under Arts. 98 to 10;). These are I tlurr Ahmad •• Khan respectively, presumption of legitimacy, presump-

tion of death from seven years' absence, presump· Uniort of lridia t.ion of loRt gmnt, presumption of reimlarit_v and of Gajt11draga,lkar J. deeds to completfl title estoppel by conrluet, estop-

pel of tenant and licenRee, estoppel of acceptor of bill of exchange and estoppel of bailee, agent and license('. It would thus be sei>n that ostoppel of the four kinrl• j1rnt indicat.od constitutes a branch of rule of evidence, _according to Stephen.

Dicey of seems to take the view that even for purposes domestic Jaw, irrebuttahle presumptions of law are rules of substance, ancl he adds that "re-but table presumptirms of law mtrnt. for th.- present \

purpose, be further suh-dividerl. First, there are those which only apply in certain contexts, such as the presumptfons of arlv•rncPment., eatisfact.ion and ademption. It. is Huhmitfod that the~e are so closely connected with the Pxistence of suhstantivf> rightH that they ought to be classified aR rnlPs of sub-stm1ce. Serondly, there are those which apply (though not always in prPeiscly the same way) to all types of cases, such as the presumptions of legitimacy, marria!!e and death. It is uncertain wh!'t her such presumptions are rules of sn hstance or ru]Ps of procedure.'" ( 1) According to Dir.e.v, for the purpoHes of English dompstic law, eHtoppcl is generally treated as a ruin of evidence. In dealing with this topic, Dicey has observed that : "in order t<i determine whet.her presumptions are rules of substance or rulPs of pro~.edurn, it is necessary to distinguish between three kinds of presump-tion,". ( ') Then he refors tn presumptions of fact, rehnttabln presumptions of law and irrcbuttabln presumptions of law. As to pr1>sump-tions of facts. he t.hinks t!Htt, st.ri!'.tly speaking. tht\Y h;n-P 110 legal effect at, all; they are merely common inferences an<l, as such, will ho applied alike to casc:i goYerned by English and foreign law. (I} D ict".,'S conflict ofl.aws. ~Cvf'nth Edition. pa~c J09R.

(2) Th:iycr's •A Prcrliminary Tre~tisc on Evidence at lhe CC'mrron Law• page 314.

It is no doubt true that in dealing with the 1962 question about the character of the rule prescribing l zhar Ahmad Khan irrebuttable presumptions, we must attach due v. importance to the opinions expressed by jurists. Union of 1 ndia But, as we have just seen, the views expressed by Gajendragadkar J, jurists on this topic do not disclose an identity of approach and their conclusions show different shades of opinion. That is why, bearing in mind the juristic opinion to which we have just referred, we will proceed to examine the merits of the argument that the rule of irrebuttable presumption prescribed by the impugned rule is a part of the substantive law and does not form part of the law of evidence properly so-called.

It is conceded, and we think, rightly, that a rule prescribing a rebuttable presumption is a rule of evidence. It is necessary to analyse what the rule about the rebuttable presumption really means. A fact A which has relevance in the proof of fact B and inherently has some degree of proba-tive or persuasive value in th;it behalf may be weighed by a judicial mind after it is proved and before a conclusion is reached as to whether ±"act B is proved or not. When the law of evidence makes a rule providing for a rebuttable presumption that on proof of fact A, fact B shall be deemerl to be proved unless the contrary is established, what the rule purports to do is to regulate the judicial pro-cess of appreciating evidence and to provide that the said appreciation will draw the inference from the proof of fact A that fact B has also been proved unless the contrary is established. In other words, thA rule takes away judicial di~cretion either to attach the due probative value to fact A or not and requires prima Jacie the due probative value to be attached in the m:itter of the inference as to the existence of fact B, subject, of course. to the said presumption being rebutted by proof to the cont-rary. As Thayer has observed : "presumptions are aids to reasoning argumentation, which assume the trut.h of certain matters for the purpose of some given inquiry. The exact scope and operation of

258 SUPRE:IIE COURT REPORTS [196'.2] SUPP.

1962 these prima facio a8sumptions aro to cast upon the Ir.liar Al.mad Khan party against whom they operate, th<> rluty of going·

v. forward, in argument or evi<l<'llC<', on thP parti-Unio11 of lndi J cular point to which thB,V rPlate. They are thus Oajen1ragadk:Jr .J. clos~ly rel:iterl to th<' suhjrct of judicial notice ; for

they furnish the basis of many of those spontaneous rccog-nitions of part.icnlar facts or conditions which make up thnt d<Jctrine". (1) Acconling to the Ramo author, ]pg!}] preRumptions of tho rebuttaLle kind are d~finitions of tho quantity of evidence or tho state of facts sufficient to make out a prima .facie caee ; in other wordR, of the circumstnnces under which the burdPn of prnof lies on the opposite party. Thus, the rule of robuttnble preRumption adds statutory force to the natural and inherent proha-ti\0(' Yalue of faet A in relation to thfJ proof of the exist<·nce of fact B and in nrlding this Rtatutory If value to the probative force of fa<:t A, the rule, it is conceded, makes a provision within the scope and functi0n of the law of evidence. If that is RO, how does it make a <lifl'er<'ne:e in principle if the' rule a•lds conclusive Ht.rength to tho prnbative ,-al11e of thn said fact A in relation to th' proof of the exi-;. trnco of fact B ? In rngnrd to the category of facts in respect of which an irrehuttaLle presumption is prescribed by a rule of evidence, the position is th..t the inherent probative value of fact A in that behalf is very great and it is \'C'ry likely that when it is proved in a judicial proceeding, the judicial mind wonld nornmlly attach great importance to i1 in relation to the proof of fact B. The rulo steps in with n'ganl to such fa<ots and provides that. the.· jurlicial mind should attach to th<' said fact •·onclu-sivcncRs in tho matter of it.s probat.ivc value. It wculrl he not iced that as in tlw cas1' of a rchnttahl11 presumption, HO in the e,a,.<o 0f an irrebuttable pre-sumption, the rulo purports to assist the judicial mind in :ipprcciating the existence of facts. ln one c<tRC tho probative Yahrn is Rtatutorily streng-thened hut yet left op<•n to rebuttal, in the other

(\)Thayer's ·A Preliminary Treatise on Evidence at !be Common Law, page 314.

case, it is statutorily strengthened and placed 19~2 beyond the pale of rebuttal. Considered Ahmad Khan /z~ar from this point of view, it seems rather difficult to v. accept the theory that whereas a rebuttable pre-Union of Indio sumption is within the domain nf the law of evi-Gajendr'J:adkar j. denee, irrebuttable presumptio_n is outside the do-main of that law and forms part of the substantive law.

In D. B. Heiner v. John H. Doni,an(1), the Sup-reme Court of the United States of America.had occasion to consider the validity of the provision of a Federal statute imposing a death transfer tax in respect to transfers at the time of or in contemp-lation of death, that any transfer made within two years prior to the death of decendent shall be deem-ed to. have been made in contemplation of death within the meaning of the statute and it was held that the said provision violated the clue process clause of the 5th Amendment. The argumrnt partly turned upon the question as to whether the irrebut-table presumpt.ion authorised to be drawn by the impugned section of statute was a part nf the law of evidence or of the substantive law. In support of the statute, it was urged that the conclusive presump-tion created by the statute was a rule of substantive law. The Court, however, rejected the plea and held that the rule was a rule of evidence and as such violated the constitutional guarantee provi-ded by the 5th Amendment. In rejecting the plea urged by the State that the rule was a rule of subs-tantive law, Mr. Justice Sutherland observed that a rcbuttable presumption clearly is a rule of 0vi-dence whioh has the effect of shifting the burden of proof and in ~upport of this conclusion, he refer-retl to the earlier decisions of the Court. The Lear-ned Judge then added that "it is hard to see how a statutory rebuttable presumption is turned from a rule of evidence into a rule of substantive law as the result of a later statute making it conclusive.

(!) (1932) 76, aw. Ed. 772, 730 1962 In it is a for proof; one

both cascR subRtitute in the lzhar Ahmad f\hG11 open to challenge. and disproof a.ml in th~ other

v. conclnsiYe." \V(') ought to add that the learned U11ion of l11clia

,Judge made it clen.r that "whether the presumption Gojtndragadkor J. be treat.rd a.!'! a rule of OYidence or of suhsta.ntivo

law, it constitut,<>a an attempt, by legislatirn fiat, to enact int0 existonce a. fact which here does not, and cannot he made to, exist in n.ctua.Iity, 11.nd the rc1.mlt. is th1~ same, unleRs we a.re rrady to O'rnr·rule the Schlesin!!er r,a,se. as we a.re not.; for tha.t ca~rn dealt with a.·-conclusivc presumption and the Court held it: invalid without regard to tho ciuestion of its t.echnieal ch'lracterization." ThuR, the observa. tiomi madn hy Mr. Justice S11thnland in regard to the cha.racter of the rule of irrehutta.ble presutnp· t.ion afford nssistance to the contention raised hdoro U'3 on behalf of the Union of India.

But it is i:;a.id t.}rnt a conclusive presump-tion preYcnts the party against wh<>m it is drawn from disproving the inference about the exist~!nc:e of fact B whirh is required to he drawn from f.he proc)f of fact A. Thi~ circumstancP, however, does not ~tffect the character of the rnlo a.s falling within th~ domain of the law of e\•i<fonce. 'fak1.! t.he caRe of estoppel \l"hich is admitted to be a part of tlw law of edclence. In the cn.~c of estop-pcl where the essential ingredient.~ of the rule are sa.ti;::fied, a party is preclu<led from denying the t.n1th oft.ho thing covcrl'rl by his declarn.t.ion, act or omission. In otlwr words, wher'e estoppel is plead-ed aga.inst a party on thP-stren~th of hiFi declarn-tio11, act or omission, wher,•hy he intent iona.lly C<lusccl or permitted anoth1~r person to bclicv(~ a thing to lw true, t.hat party is not permitted to say t.hat the thing itfwlf was not true and yet the rule which t>Ult; this bar ag,tinst tlw party and precludes him frwn prodng t.hat the thing in q1wstion is untrue, is treated as a. ru lo of e,·idencc. Therl'for<>, the fa.ct that a. ha.r is created prevont.ing . a pnrty from proving the truth or falsity of a thing the exis-1962 tence of which is inferred, does not show that the Jzhar Ahmad Khan rule itself is a part of the substantive law. v. Union of India Then it is argued that the conclusive rule in Gajendragadkar J, the present case extinguishes the status of citizen-ship and as such", is a part of the rule of substan-tive law. We are not impressed by this argument either. What the rule really provides is that when one fact in established, another fact shall be deemed . to have been established. The fact established is that an Indian citizen has obtained a passport from a foreign Government on a certain date. From this fact, an irrebutta ble presump-tion is required to be drawn that the obtaining of the passport from the foreign Government estab-lishes the acquisition of the citizenship of the said foreign State. This is a case where from the proof of fact A an inference as to the existence of fact B is required to be drawn. As to the inherent probative and persuasive value of fact A in re-lation to the existence of fact B in this context, we will have occasion to discuss it later on. The argument that the application of. the ·rule may in some hypothetical cases conceivably lead to hard-ship and injusti••e, is not relevant or material in dealing with the constitutional validity of the rule.

In deciding the question as to whether a rule about irrebuttable presumption is a rule of evidence or not, it seems to us that the proper approach to adopt would be to consider whether fact A from the proof of which a presumption is required to be drawn about the existence of fact B, is inherently relevant in the matter of proving fact B and has inhe.rently any probative or persua-sive value in that behalf or not. If fact A is inherently relevant in proving the existence of fact B and to any rational mind it would bear a probative or persuasive value in the matter of

262 SUPREME COURT HEPOitTS [1962] SUI P.

19G2 proving the existence of fact B, then a rnle pre8-

cribing either a. rebuttablc presumption or 1>11 irre-J;:har Ahma'l Kh1111 buttable presumption iu that behalf would be a

v.

Ur:ion._of lndic rule of evidenoe. On the other hand, if fr1ct A is Oajer.Ur,giadJ.:4: J. inherently not relevant in proving the existence

of fact H or has no probative value in that behrilf and yet a rule is made prescribing af a rebuttablc or an irrebuttable presumption in that connection that rule would be <L rule of substantive law and not a rule of evidonue. Therefore, in dealing with the question as to whethor <I given rule prescrib-ing a conclusive presumption is a rule of evidence or not, we cannot adopt the view that all rules prescribing irrebuttable presumptions arc rules of substantive law. Wn can answer tho question only after examining the rulo and its impact on tho proof of faets A and B. If this is the proper test, it would become necessary to enquire whether obtaining a passport from a foreign Govcmment is or is not inherently rel.,vant in proving the volun-tary acquisition of the citizenship of that foreign State.

It has bceu fairly conceded beforn us that a passport obtained by the petitioners from the Pakistan Government would undoubtedly by rele-vant in deciding the qucs ti on as to whether by obtainiug the 8aid passport they h1wo or havo not acquired the citizenship of l'akista11. Some-times the argument appears to have been urged and aCO(~pted that a passport in question would not ho relevant to the enquiry as to whether citizenship of Pakistan ha> been acquired or not. That ·dew, in our opinion, is clearly erroneous.

The definition of a passport given by Lord Alverstono, C. J., in R. v. Bruii~ford (')has been adopted by the House of Lords in the joyce case ( ') and it is of some assistance in dealing with the point with which wo are concerned. "It is a docu-ment", says Lord Alvcrstone, "issued in the name of (I) ll905J 2 K.11. 730. (2) ll946] A.C. 3~7.

the Sovereign on the responsibility of a Minister 1962 of the Crown to a named individual, intended to Jzhar Ahmad Khan be presented to the Governments of foreign nations v. and to be used for that individual's protection as a Union of India British subject in foreign countries". As P. Weis Gajendrag11akar J. observes: "a passport is considered in Great Britain and the United States to be prima facie evidence J of the national status of the holder, but it is not conclusive evidence". He adds that "the United States has on many occasions insisted that foreign authorities were not entitled to ignore an American passport, i.e., to refuse to regard it as sufficient proof of the holder's nationality"(').

It appears that in support of the viaw that a passport is not relevant in an enquiry as to the citizenship of a person holding a passport, reliamJe is sometimes placed on the observations made by Mr.

Justice Thompson in Domingo Urtetiqui v. John N.

D'arcy, Henry Didier and Domingo D'Arbel: (2) "Upon the general and abstract question," observes Thomp-son J., in delivering the decision of the Supreme Court of the United States, "whether the passport per se, was legal and competent evide-nce of the fact of citizenship, we are of the opinion that it was not." It would, however, be seen on looking at the whole of the judgment that the lear-ned Judge made it parfectly clear during the course of the latter portion of his judgment that on that issue, the court· was divided in opinion, and the point was of course undecided. So, the general observation made in the earlier part of the judgment is really of no a ssistance in the matter. That case shows that the plaintiff had produced a passport granted by the Secretary of States of the United States, in order to show that he was the citizen of the State of Maryland. The defendant, on the other hand, offered in evidence the record of the District Court of the United States for the District of Louisiana which contained proceedings in a suit which had

{I) P. Weis on 'Nationality and Statelessness in International I aw'

P. 225-226 (2) (1835) 9 Law. Ed., 692.

1962 beon originally instituted against the plaintiff to the Jr.har . .fl1111ad , .. K hon effect that he wM an alien and it appears that of

the two pieces of evidence, the latter was held to U11iv11 of India be more reliable. Therefore, in our opinion, tho GtJ}rwlracadkar J. · loarned counsel for the petitioners were quite right

in conceding that the passports obtained by the petitioners were relevant in the enquiry as to the question whether they had acquired the oitizenship of Pakistan or not .. If that be so, applying the test which, we think, is appropriate in such cases, it must be held that the impugned rulo of evidence and not a rule of substantive hw. The fact of obtaining the passport from Pakist:rn on which a. conclusive presumption is drawn as to the volun-tary acquisition of the citizenship of Pakistan is relevant and tho rule merely make> its probative value conclusive. Therefore, we are not disposed to uphold tho objection raised by the petitioners that the impugned rule is a rule of substantive law and as 8UCb, falls outside tho purview of SOC· tion 9(2). If it is a rule of evidence properly so. called, it would be within tho scope of the :Luthority conferred on the Central Government by s. !l(2) and its validity cannot be successfully challenged.

There is oue decision to which we ought to refer before we part with this topic. The petitioner8 in support of their argument th<it impugned rule is & rule of substantive law, have placed reliance on the decision in Jn re J(QJJN ('). In that ease, a mother and a daughter, who were German nationals and at all times domiciled in Germany, wero killed in an air raid in London as a result of the same explosion, and it could not be proved which of them had died earlier. The daughter was entitled to movable property under her mother's will, if she survived her mothor. On thc,>Sc facts, it was held that the question of survivorship depended on tho provision of the German Civil Code under which the deaths were presumed to have taken place simul· 196t taneously and so she .was not a person living ~t lzhar Ahmad Khan the timl' when the succession to her mothers v. estate opened and, therefore, was not entitled to Union of India the property. The provision contained in section Gajendragodkar J. 184 of the English Law of Property Act, 1925, however, was to the contrary. It provided that where two or more persons have died circumstances rendering it uncertain which of them survived the other or others, such deaths shall, (subject· to any order of the Court) for all purposes affecting the title to the property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder. It was held that the two releva.nt statutory provisions both of English and German Law were rules of substantive law. In fact, the relevant English sec-tion occurred in the Law of Property Act and its setting and context import that it was a rule of substantive law. So was the rule contained in Article 20 of the Civil Code of Germany treated as a rule of substantive law. The main reason given in support of the conclusion that the two rules were rules of substantive law appears to be that each one directed a certain presumption to be made in all cases affecting the title to property. It would be noticed that the scope, purport and effect of the two rules is substantially different from the scope, purport and effect of the rule with which we are concerned. In the rules with which the court was concerned in re-Cohn, there is no question about the probative value of one fact being judged or appreciated under statutory rule in regard to the proof of the existence of anothe.r fact. Like the rule • that ignorance of la,w is no excuse, the rules with which the court was concerned were clearly rules of substantive law. Therefore, in our opinion, not much assistance can be drawn from the judgment of Uthwatt, J., in the case of re-Cohn. It is clear that the simultaneous deaths of two persons is

26(3 SL'PRE.ME CCl'RT REPORTS [1!162) SUPP.

19G2 neither rationally or inhen•ntly rcle'l'ant to, nor hail Iz/,ar Ahmad .. Khan it any inherent probati\'e value in, the proof of the

question as to the sequence of the two cleaths and, Unfon cf ltidia therefore, the provisions in the t\\'O sections being Gajtndrogodkar J. purely arbitrary, wern rightly held to be matters of

substantive law.

In dealing with this q1H'st.ion, it may also be rcleva.ilt to considl'r the practical aspect of the rule; and that takes us to the pro0<•rl11rc whi<h has to be followed in Pakistan in obtaining a passport from the Government of that country for travel to India. One of the objects which the Act was incidentally intended to achieve was to meet the prncrgency which arose as a result of the partition of the country into India and Pakistan, and the rclcva11t rnles are also primarily applicable to Indian nationals who on going to Pakistan obtained passport from the Government of that country. ~ow, it is not disputed that according to the laws prevailing in Pakistan, a person is not entitled to apply for or obtain a passport unless he is u citizen of Pakistan under its Citizenship Act. Besides, the prescribed form of the application requires that the applicant should make a declaration to the effect that ho is a citizen of Pakistan and the said declaration hus to be accepted by the Pakistan authorities bt•fore a passport is issued. In the course of the enquiry as to tho citizenship of the Applicant, declaration by officials of Pakistan about tho tmth of the statement of the applicant are also required to be filed. Thus, tho procedure prescribed by tht> relevant Pakistan laws makes it abundantly clear that the application for the passport has to be made by a citizen of Pakistan, it has to contain a declaration to that effect and the truth of tho declaration has to he established to the satisfaction of the Pakistan officials before a passport iH granted. When a passport is obtained under these "circumstances, so far as the Pakistan Government is concerned, there oan be no doubt that it would be entitled to claim the applicant as its own citizen. The citizen would W62 be estopped from claiming against the Pakistan [~har Ahmad Khe Government that the statement made by him about v. his statuR was untrue. In such a case, if the Union of India impugned rule prescribes that the obtaining of a GaJendr.:igadkar passport from the Pakistan Governme,nt by an Indian national, (which norm'tlly would be the result of the prescribed application voluntarily made by him) conclusively proves the voluntary acquisition of Pakistani citizenship, it would be difficult to hold that the rule is not a rule of evi-dence. In our opinion, it would be pedantic and wholly unrealistic to contend that the rule in ques-tion does not purport to assess the probative value of fact A in the matter of proving fact B but imports considerations whieh are relevant to sub-stantive law. Our conclusion, therefore, is that the impugned rule of evidence and falls within the scope prescribed by s. 9 (2). The challenge to its validity on the ground that it is rule of substantive law must, therefore, fail.

But quite apart from this theoretical or juris-prudential aspect of the matter, there is another independent consideration which supports the same conclusion. The question raised before us is one of construing the words "rules of evidence" used in s. 9 (2) of the Act, and in construing the said words, it would obviously be necessary to bear in mind the legislative history of the content of the words "rules of evidence" in India. The Evidence Act (Act No. I of 1872) was passed as early as 1872 and by section 4 it recognised as rules of evidence the rules which prescribe for a presumption which may be drawn, for a presumption which shall be drawn subject to rebuttal and for a presumption which shall be conclusively drawn. Sections 41, 112 and 113 are illustrations of conclusive presumptions.

It will be recalled that similar provisions were included by Stephe:q in his draft of the Law of Evidence after expressing the opinion that the said

presumptions form part of the Law of Evidence, Therefore, from 18i2 onwards, it has been accepted ar Almud K!um

v. in India that a conclusive presumption is a part of ·nion of India the law of evidence .

jmd•ogadkarJ. Bearing this fact in mind, we have to consider

what the denotation of the expression "evidence'' would be in the relevant entries to the Seventh Schedule in the Government of India Act of I 935 as well as the Constitution. Entry 5 in List III of the Seventh Scheclule of the earlier Act was : "Evidence and oaths ; recognition of laws, public acts and records and judicial proceedings." Similarly Entry 12 in the concurrent List of the 7th Schedule to the Constitution reads in the same way. It is well settled that "when a power is conferred to legislate on a particular topic, it is important in determining the scope of the power to have regard to what is ordinarily treated as embraced within that topic in legislative practice and particularly in the le!!islative practice of the State which has conferred the power(') (Croft Dunphy). A relevant instance in point of this rule of construction is afforded by the decision of the Federal Court in '1.'he Central Provinces and Baar -'.ct No. XIV 1938 (') Tualing with the content of the expression "exciso", Gwyer, C. J., observed : · "Parliament must surely be presumed to have had Indian legislative practice in mind and, unless the context otherwise clearly requires, not to Lave conferred a legislative power int<mded to bo interpreted in a sense not understood by those to whom the Act was to apply."

There can, therefore, be no doubt that the expression '·rules of evidence" constmed in the light of the Indian legal and legislative history . would !nclu~e some rules of conclusive proof and 1f that is so, 1t

\I) [1933) A. C. 156, 165. (2) [1939j f. C.R. 18, 3, would be idle to contenrl that the impugned rule is a 1962 part of the sub<itantive law merely bocause it pres-lzhir .4.hmad j. cribes a concluRive presumption. If that be the true v. position, we do not think we would be justified in Union of Inc contruing the words "rules of evidence" to adopt , ajendragadka the academic or pedantic approach suggested by the petitioners. The expression "rules of evidence"

would certainly include a rule as to Mnclusive presumption like the one with which we are cancer· ned in the present petitions. Therefore, on this construction of s. 9(2), the impugned rule must be held to be intra vires.

The question about the validit.v of this rule has been considered by some of the High Courts in India. The Andhra Pradesh 11 ' and Allahabad High Courts (')have held that the rule is invalid, whereas the Bombay, (') the Rajasthan (') and the Madras High Courts(•) have held that the rule is valid.

The .next point to consider is about the validity of s. 9(2) itself. It is argued that this rule is ultra vires because it affects the status of citizenship con-ferred on the petitioners and recognised by the rele-vant Articles of the Constitution, and it is urged that by depriving the ·petitioners of the status of citizenship, their fundamental rights under Art. 19 generally and particularly the right guaranteed by Art.19( I)( e) are affected. It is not easy to appreciate this argument. As we have alreitdy observed, the scheme of the relevant Articl~s of Part II which deals with citizenship clearly suggests that the status of citizenship can be adversely affected by a statute made by the Parliam.ent in exercise of its legis-lative powers. It may prema facie sound somewhat surprising, but it is never the less true, that though the citizens of India are guaranteed the fundamental rights specified in Art. 19 of the Constitution, the

(!)A. I.R. 1957 Andh. !OH. (2) A. I. R. 1960 All. 637.

(3) A. T. R. 1958 Born. 1422. (4) A. I. R. 1958 Raj. 172.

196Z status of citizenship on which the exigtenoe or con-J ,J,., km ad Khan tinuance of the said rights rests is itself not one of the

v. fundamental rights guaranteed to anyone. If a law [,"nilJn of India

is properly passed by the Parliament affecting the Oajtnd,1JgadJ.i;1 J, status of citizenship of tLny citizens in tho country,

it can be no challenge to the validit.v of the said law that it affects the fundamental rights of those whose citizenship is thereby terminated. Art.icle l!l proceeds on the assumption that tho person who claims the rights guaranteed by it is a citizen of India. If the ba~ic stat.us of citizenship is validly terminat{!d by a Padiamontary statute, tho person whose citizenship is U:rminated has no right to rlaim the fundamental rights under Art. 19. There-fore, in our opinion, the challenge to s. 9(2) on the gronnrl that it enables the rule-ma.king authority to malw a rnle to deprivn the citizenship rights of the petitioners cannot be sustained.

That leaves only one point t'l he considered in th" pditioncrn' attack against the validity of s.!J(2). It. io urged that s.0(2) confers on ·th•.• Central Government uncanaliseJ aud arbitrary power to make rules without any guidance and aH such it amounts to ()XCc.-sirn delegati"n. In our opinion, there is no substauce in this argument. Sec•tion D( I) has itself provided that if 1111 Indian citizen applies for naturalisation in a foreign State and obtains such !laturnlisation, ho will be deemed to have lost the citizenship of India. The ~ame provi- ~ion is mad" in r(·garcl to mgistration. The Legisla-lun• kne1v that the acquisition of the citizenship of a foreign Str,to may br' made voluntaril.v even other-wisP than b;• 11aturnli~ation or registration and ~o it has pro1•icled for the third category of acquisition of foroign cit,iz0nship under the last clause "othc,rwise voluntarily acquires" ~o that rule.making had to be cnnfined primarily to this last category of acquisition of foreign cit.iz,,nship. The basic principle on whkh i he Act pro~ceds and which has been rccognis"d by Art.!l oft.he Constitution itself is that no Indian citizen can claim a dual or plural citizenship. The 1962 acquisition of foreign citizenship can be made by naturalisation or registration and as soon as it is so Izhar Ahmad •• Khan made, the prior Indian citizenship is terminated. It is Unian of India in the light of these principles which are writ large on Gajendragadkar J. the provisions of the Act that the rule making power had to make rules about the class of cases falling under the last category of acquisition of f0reign citizenship, and the rules show how the task has been attempted. We have already referred tor. 1 to 3. Rules 4 and 5 whioh deal with cases other then those where passport has been obtained by an Indian citizen, prescribe the relevant factors which have to be considered in each case before deciding whether foreign citizenship has been acquired by an Indian or not and the impugned r. 3 itself pro-ceeds on the basis that the conditions prescribed by the Pakistan Law for obtaining a passport from the Pakiotan Government take the case of the obtain-ing of the passport very near to the case of regis-tration or naturalisation. Therefore, having regard to the scheme of the Act and the principles enuncia-ted in its relevant sections, we do not think that it can be held that in enacting section 9(2), the Legislature has abdicated its essential legislative function in favour of the rule making authority.

That is why our conclusion is that section !l(2) is valid.

Jn the result, the petitions fail and are '- dismissed, there would be no order as to costs.

DAS GUPTA, J.-These three petitions raise common questions of law and have therefore been Dos ,1, heard together. As the . questions that arise are of law and the facts are not in dispute and substantial-ly the same, it would be convenient to deal with the facts of one of those petitions only. We pro-pose ·to take for this purpose W. P. No. 88 of 1961.

The petitioner Habib Hidayatullah claims to ba a citizen of India and h'Ls filed this petition for

272 StTRE;\IE COURT REPORTS [1962] SUPP.

1962 protRction of his fundamental right under Act 19 of It.' ar Al: med Khan the Con~titution which he says is threatened bv the

action of the Union of Tnrlia an<l the Stat-e of Maha· 1/nicn of India raRhtra. It iA not disputerl that the petitioner was

Dos J. on .January 26, 1950. a citi7.en of India anrl obtai-

ned a Raj pasAport for nil1rrimage in that cnpacity. According to him he sailed from Romh1w for BaAra (Iraq) on April 5, Hl50. and stayed there for three yearR in connection with som" busine-;.q ancl then '.went tn Kamchi on !\fay 2. l!l53, with his brother for the latter's treatment. On hiR arrival at Karachi the Pakistan authoritiPs t,ook away hiR Tndia.n tra-vel nocnment8. During the yeaTR.l!lii4, 1955, 1956 and I !lii7 he made sevna.1 attempts to obtain faoili-ticA from t.hc Indian High Commission at Karachi for his return to India. Rut h1J.ving failed to get any assistance t.here he ohta.ined a Pakistan passport and travt'Jled t.o India on the basis of thA same. This was ohtained on DPcember 14, 1957 and t.he peti-tioner's case is that he obtained it as this was the onlv po~sible way for him to return home to India with his ailing biothPr and without any inkntfon to n•nmrnre his Indian citizenship or to acquir<' Pakis-tan citizenship. AftPT' his return to India the peti-tioner made SPveral rcpn S<mtntions to the Indian authoriti!'R aoking them "to rec:-ignizo him as a citi-zen of Imlian aud/or to register him as such and/or to ncrmit him t.o stny premanently in India." 'But ultimat.!'ly the Indian authorities refused to recog-nise him n,s a citizen of India and/or to pPrmit him to stay permanently in India.

-- Faced now with t.he riHk of bl'ing rlepnrted from Inclia the petit.iorwr haR approached t:his Court · for an ord"r <lirecting-the re~pomknts, the Fnion of

Inrlia and the Rtat{' of Maharn~htre, to refrain from taking :iny st.cps to deport or remove him from Inrlia ann to recognise him as a citizPn of India by birth under Art. 5(l)(a) of the Constitution.

When admitting his writ petition after the preliminary hearing this Court made an order stat· 1962 ing that it would be open to the petitioner to move Izhar Ahmad Khan the Government under s. 9(2) of the Citizenship Act v. or the Government suo motu to take action under Um:on af India it. DasJ.

Thereafter both the respondents have entered appearance and oppose the petition for stay on the grounrl that the petitioner has ceased to be a citizen of India. The Government of India then took action under s. 9(2) of the Citizenship Act and has determined that the petitioner has voluntarily acq-uired the citizenship of Pakistan after January 26, 1950, and before December 14, 1957 ..

The order made by the Government of India shows that in reaching the above conclusions it took into consideration, among other things, the fact that "the petitioner by declaring himself to be a citizen of Pakistan before the Pakistan authorities ............ obtained a passport on the 14th December 1957."

Section 9 of the Citizenship Act runs thus:- .

"Any citizen of India who by naturaliza· tion registration or otherwise voluntarily acq· uires, or has at any such 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:

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 other-wise directs,

(2) If any question arises as to whether when or how any person has acquired the

2i4 SUPREJIE COURT REPORTS (1962] SUPP.

1962 ci1 izenship of another nnuntry, it shall be rflhar Ahmad Khan dt:terminPd by such authority, in such mannt>r

v, and having regard to such rules of evicknce, Union of India as may be pn·"('ribcd in this tiohalf."

IJa.r J. Rule 30 of the Citizenship Rules 1956, framed

by the Central Govornm~nt und'Cr Section 18 of the Citiz<>nship Act, Hl55, (Act, No. 57 of 195ii) prnvides: (I} that if any question arises as to whether, when or now any perAon ha;; acquired the cit iz('nsh ip of another count.ry, t.hc authority to determine such question shall, for the purposes of s. 9(:!) he the Central Covef·nmcnt ; and (2) the Central Govern-ment shall in detPTmining any such question have clue regard to the rules of evidence specifkd in Sch. III. Schedule III cont1iins five rules of which r. 3 runs thus:- "Tho fact that. a citizen of India bas obtained on any· date a pasRpor~ from the Governmeut of anv other country shall ho conclusive proof c;f his having .:oluntarily acquired the citizon<hip of that country befom · that date."

Them can be no dis put~ that if the order of the c~ntral Government determining that the petitioner has voluntarily acquired the citizenship of Pa.kisthan after the 26th January, 1950, b a valid order in accordance with s. 9(~) the petitioner has under the pro\'isions of 9(1) of the Citizenship Act coascd to be a citizen of India and his petition must accordingly fail. It has been urged b~forc us howovor that this determination of the Government has no legal force inasmuch as it was ma.de on the basis of Rule a of Sch. III of the Citizenship Rules, which Huie it;;clf is invalid.

Tho principal question canvassed before us is aR regards the v1tlidity of t.his rule: Th<l main att-ack ae:ainst the rule is that while~. 9(2) empowers the Government to prescribe rules of evidence, Rule 3 is not a rule of evidence but a rule of sub-1962 stantive law and is therefore beyond the limits of Izhar Ahmad Khar the powers which were delegated to the rule- '· making authority by the legislature. Union of India J)as J. The contention on behalf of the petitioner is that a distinction must be drawn between a rule of evidence, properly so called and a rule which though called a rule of evidence lays down ai rule of substantive law ; and that if that dis-t nction is borne in mind it becomes Clear that r· 3 is not a rule of evidence. The other argument js that when any fact is stated by a rule to 1:-e conclusive proof of another fact, the rule is in effect laying down that the happening of the first fact will be equivalent in law to the happen-ing of the other fact and so a party interested to prove the falsity of such other fact is being pre-vented from giving relevant evidence.

Every law has something to do with the function of the State in securing rights to and imposing liabilities on. its people. · While how-ever some of the laws deal primarily with the creation, modification or extinguishment of rights or liabilities, other laws deal with the further task that then becomes necessary-of ascertaining how far in any particular case, such rights or liabilities have come into existence, or have become, des-troyed. For clarity of thought, and convenience of discussion, the laws falling in the former class are called substantive laws while those in the se'bond class are called adjective laws. Adjective laws again have two branches, one dealing with the procf,dure of the court; and the other (which,is also in the strict sense "procedure") rule of evi-dence. The distinction between &ubstantive law adjective law is well understood in jurisprudence, thought some amount of confusion has occa-sionally been caused by some writers losing sight of the distinction. As early as the beginning of

2i6 SUPREl\fE COURT REPORTS [1962) SUPP. 1962 the nineteenth ccnturv Bentham criticised in his Ahm•d Khan Rationale of Ju<licial Evidence the tfln<lPncv of

v. many writers to present rules of civil law ·and lion of India criminal law as rules of evidence. "What. there-DasJ. fore. the lawyers give us, unrler thfJ appellation

"law of evidence," savs Bentham, "is reallv, in a great part of it, ci;il and p<'nal law." ·Since Bent.ham's time much progress has been marle in this matter and many jurists of eminence have emphasised the di;tinction between rules of evi· dence properly so call<'d ancl rules which in the guise of rules of evidence are really rules of sub-stantive law. Mr .. Justice Holmr.s in this Common L11.w says-"If the Court should rnle that certain acts or omission8 coupled wit.h damage w<·re con-clusive evidence of negligence unless explained, it would, in suhstance and in truth; rnlP that such act-~ or omissions were a ground of liability or prevent•~d a recovery, aR tho casP might be." "ft is then fundamental", s:1ys Profossnr Thayer, in his Preliminary Trcatirn on El'i<lence," that not all det-0rminations admitting or excluding evidence arc rcfrrabl<l to the law of evid•mce. Far the larger part of them are not." "Permit.ting a fact'', say" Professor Wigmore in his Trra1 iso on Evidence, "to bPcome a propositio'n is not an evidPntiary procesR", and givPs the following example : "An action of battery upon a plea of not guilty, the defondant offers evidenc" to prove that the plaintiff used insulting words tn the deft~ndent hefore the iittaek, and this is rejec-tPd; hero the ruling is in truth that insults cons-titute no excuHe or no ground for mitigation of damages, a rule of ~uh•tantive law; or perhaps, that such a dt1fonce is not available upon a plea traversing the battery-a rule of plPading. It is certainly not a ruling upon a quest.ion of evi-dence ; it is a ruling that the proposition <lesireci to be proved is either not tenable, by the S•1bs- . tantive law, or not issuahh-, by the law <>f plrad.

This reasoning is obviously at the basis of 1962 Wigmore's view in s. 2492, Vol. IX of th~ same lzhar Ahmad K treatise that rules laying down conclusive presum-v. ptions are really rules substantive law. "In strict-Union of Indi, ness," says he, "there cannot be such a thing as a Das J. "conclusive presumption." Wherever ' from one fact another is said to be conclusively presumed in the sense that the opponent is absolutely precluded from showing by any evidence .that the second fact does not exist, the rule is really providing that, where the first fact is shown to iixist, the second facts existence is wholly imma· terial for the purpose of the proponent's case ;

and to provide this is to make a substantive law and not a rule apportioning the burden of persuad-ing as to certain propositions or varying the duty of coming forward with evidence."

The same view has been expressed by Prof.

Holdsworth in his History of English Law. At page 139, Vol. IX, of this history, he, after tracing how presumptions have been evolved by the Courts or the legislature, proceeds to says: ~"In this way the law as to presumptions of different kinds comes to contain a confused and heterogeneous mass of rules, relating to many different legal topics. In so far as the courts or the legislature treat these presumptions as conclusive, they cannot at the present day be regarded as parts of the law of evidence." They are rather rules of substantive law." Again at· page 143, the learned author after stating that rebuttable pre-sumptions of law though belonging primarily to those particular branches of the substantive law with which they are concerned, are all connected with that part of the adjective law which is con-cerned with evidence, observes: "Irrebuttable presumptions of law, on the other hand, belong at a present day more properly to the substantive law than to the law of evidence. But they are

rules of substantive law which borrow tho ter- /;,h~r Ahmad Khan minology and adopt the guise of that branch of

v. the law of evidence which is conc(•Jncd with p1e-Uni-J11 of lr.dio sumptions; and, historically, they vriginate in the

Das J. period whou the law, not having arrived at thl:

conception of a trial by tho-examination of tho evidence produced by the contending parties,' aimed at obtaining a conclu:iive proof which cotzld settle the controversy. It might therefore be said that these irrebuttable presumptions have never been part of the law of evidence, in the sense which wo give to the term "law of evidence" in modern systems of t.Lw."

While both Wigmore and Holdsworth seem to regard all conclusive presumptions as rules of Rubstantive law, Pbips·m in his Law of E1•id1mce says, more guardedly, that many of s11ch conclu-sive presumptions are rules of substantive law. At page 6!18 of his hook the learned author says :- "In many cases these so-called conclusive presump-tions are rule~ which belong, properly speaking, to the \'arious brnnelwR of substantive law and not to the law of evidence, such as the presumption that an infant under seven is incap1tble of committing a felouy, or that all men know the law (i.e., th:>t ignoranco of the law is no excuse for crime)." Hn then gives several instances of matters which are conclusive presumptions or amount to conclusive evidence. either by statut-0 or common law. But unliko Wigmore and Holdsworth, he does not say that :>II rules of conch1sive presumptions are rules of snbstantivo.

The ma.tter has been critically considered again by Sir James Stephen in his Digest of the Law of evidence. After stating first {p.xiii) that all law may be divided into substantive law, by which ri"hts, duties and liabilities are defined, and the law of procedure, by which the substantive law is app-lied to particular cases. Stephen says that tho law of evidence is that part of the law of procedure, 1962 which, with a view to ascertain individual rights Izhar A 'im<J' Kh and liaiblities in particular cases, decides : (1) what y, facts may and what may not be proved in such Union of India cases; (ii) what sort of evidence must be given of a DasJ. fact which may be proved and (iii) ):>y whom and in what manner the evidence must be produced by which any fact is to be proved." Speaking of pre-sumptions, he says at p.xvii: "Again, I have dealt very shortly with the whole subject of presum-ptions. My reason is that they also appear to me to· belong to different branches of'the subs-tantive· law, and to be unintelligible, except in connection with them. Take for instance the presumption that every one knows the law. The real meaning of this is that, speaking generally, ignorance of the law is not taken as an excuse for breaking it. This rule cannot be properly appreciated if it is treated as a part of the law of· evidence. It belongs to the Criminal Law. In the same way numerous presumptions as to rights of property (in parti0ular easements and incor-poreal here ditament) belong not to the law of evidence but to the law of R~al Property."

After saying this, the learned author proceeds to distinguish certain conclusive presumptions which in this opinion, may rightly be considered to form part of the law of evidence and observes:- "The only presumptions, which in my opinion, ought to find a place in the law of evidence, are those which relate to facts merely as facts, and apart from the particular rights which they constitute. Thus the rule, that a man not heard of for seven years is presumed to be dead, might be equally applicable to a dispute as to the validity of the marriage, an action of ejectment by a reversioner against a tenant pur autre vie, the admissibility of a declaration against interest, and many other subjects. After careful consideration, I have put a few presumptions of this kind into a Chapter on the subject, and have passed over the 196t rest as belonging to different branches of the Anb-I ~h.r Ahmad Klinn stantive law." Huks of conclusive presumptions

v, as regards fact which may help to constitute rightll Unio11 of !nditJ in diff.,rent branches of substantive law may thus,

D11.•J. according to Stephen, be considored as rulos of

evidence. It is unnecessary for us tu decide for the purposes of the present case whether every rule that one fd.''t is cunclu~ive proof of another is a ruifl of 8Ub3t<rntivo law. It is clear however that whenever question a.rises to whether a particular rule is one of substantive law, or of ovidencn, we havo to ask ouroolves,do~s it Heek to create, or extinguish or modify a right or liability or docs it concern itself with the adjective function of reach-ing a conclusion as to what has taken place under the substantive law ? In tho firat case, the rulo is a rulo of substantive law; in the other case, it is a rulo of evidence.

For, a. rule of evidencf', can be concerned only with the manner and extf'nt of presentation of facts, for the purpose of persuading the mind of the Judge or jury or other Tribunal of the existence or non-existence of facts on which substantive rights or liabilities, civil or criminal arise. It has nothing to do with giving an answer to the question :-What is the right Gr a liability which arises on the happen-ing of a fact ? If a rule, purporting to be a rule of ovidence docs in effect give such an answor, it has gone beyond the scup~ of the law of evidence and has trenched on the domain of substantive law. On behalf of the respondent it was contended that even though a rule laying down that one fact will be conclusive proof of another might be said to be a rule of substantive law if the former faot was wholly irrelevant in persuading a rational human mind about the existence of the other, the position is different when the former fact is "relevant" in tho sense of having some persuasive value OD the mind according to ordinary prOCe8S of reasoning. All that happens, it is urged, when such J9fi~ a "relevant" fact is laid down by a rule to be Ahmad Khan I~har conclusive proof of the fact to be proved is that its v. persuasive value is stated by· law to be hundred Union of India per cent. though otherwise it would have been of a · Das J, lower percentage. Such a rule according to the respondents ought to be regarded as a rule of evidence just as a rule stating merely that a fact is relevant, i.e., it has some persuasive value, is always regarded as a rule of evidence. The argu-ment appears to us to be wholly misconceived.

Indeed, it appears to be based on a misunderstand-ing of what the law of evidence does. It does not instruct the Judge as to what value an item has or ought to have. Its task is, apart from saying on whom the burden of proof would lie and the mode in which documents and oral evidence will be allowed to be presented to. the Tribunal, to select some of the innumerable facts which according to the ordinary process of reasoning have-some more, some less-an effect on the human mind in persuading it of the existence of other facts, which tend to create, extinguish or modify a right or a liability-as matters of which evidence will be allowed to be given. When a rule says that a fact is relevant for proving a fact in issue, it is merely saying that the Court will allow evidence to be given of it. When however the rule goes further and says that this relevant fact will be conclusive 'proof of a fact in -issue. so that a specified right or liability may arise from it, what is being done is to directly affect substantive right or liability and ·is not providing for evidence only. A rule of con-clusiv peresumption made with a view to affect a specified substantive right is a rule of substantive law as it is intended to affect substantive right and does not cease to be so because the conP,lusive presumption, that is, conclusive proof of the exis-tence of another fact, is rested on a fact which is relevant to it. The point is not relevancy but

!:82 SUPHEME COURT REl'OR'H5 [l!J62] SU ll. 19G2 whether the rule is intended to affect a ~pecified /z}w.r Ahmad Kha11 substantive rigbt or to provide a method of proof.

v. Where the purpose of a rule of conelusive presump-Union of lnJla tion is that tho Judge should on that basis hold that

Das J. a specified right or liability exist8, or does not

exist, the rule is really saying that this particular relevant fact will create, or extinguish or modify the right or liability. The substance of the matter then is that a rule of conclusive presumption as to the existence of a certain fact only for establishing or disestablishing a specified substantive right results in affecting that right and ceases to be a rule of proof.

It was also said that estoppel, which is really a rule· of conclusive presumption, has invariably been treated as a branch of the law of evidence. Suppose this is so. Does that prove that all rules of conclusive presumption aro rules of ev idcnce ? We have already said that some may be. Estuppcls may belong tu that class. "Thero is said to he an estoppel where a party is not allowed to say that a certain statement ol fact is untrue, whether in roality it is true or not": Halsbury's Laws of England, 3rd Edition Vol. XV, p. 168. It therefore is concerned with a statement of fact ; it is not directed to affect any particular right though no doubt ultimately all estoppels du affect some rights a.a all rules of evidence do. In so far as estoppels. whether treated as rules of conclusive presumption or not, a.re not intended to affect substantive rights, they are rules of evidence. Therefore it seems to us that the contention that estoppel is a rule of evidence doC8 not establish that all rules of con-clu~ive presumption are rules of evidence.

Let us come now to the impugned rule. It lays down that the fa.ct that a citizen of India has obtained on any date a paBBport from tho Govern-ment of another country shall be conclusive proof of his having voluntarily acquired the citizentihip of that country before that date. Section 9 of the 1962 Citizenship Act (Act No. 57 of 1955) provides that Jz.har Ahmad Khan any citizen of India . who by naturalisation regis-v. tration or otherwise voluntarily acquires or has at Union of India any time between the 26th January, 1950, and the Das J. commencement of the Act voluntarily acquired the citizenship of another country shall upon such acquisition or as the case may be, such commence-ment cease to be a citizen of India. This provision in section 9 is undoubtedly a substantive law lay-ing down inter alia that the fact of voluntary acquisition of citizenship of another co.untry by a citizen of India will extinguish his right of citizen-ship of India. Under sub section 2 of section 9 the question whether a person has acquired citizenship of another country shall be determined, by a pres-cribed authority which shall have regard to pres-cribed rules of evidence. Ordinarily such rules of evidence would, as already indicated above, be · dealing with the question of the burden of proof, · as to the mode of presentation of evidence, as to the rights of examination and cross-examination and would also select some of the facts which may have a persuasive value as facts of which evidence can be given. In dealing with the question of burden of proof the rules may also legitimately raise a rebuttable presumption, from certain facts, of this fact 'of voluntary acquisition of citizenship of another country. A rule raising a rebuttab!e pre-sumption isclearly a rule of evidence for its only effect is to shift the onus of proof and it is not intended to affect nor does it affect any particular substantive right. In determining the question the prescribed authority would then have to consider the facts which tend to persuade the mind that the person has voluntarily acquired the citizenship of another country and also facts which tend to show the other way, provided the pres~ntation of these is not barred by the prescribed rules of evidence. What happens when the rule"making authority steps in with the rule that the obtaining of a passport of

284 SUPREME COURT HEPORTS [1962] SUPP.

1962 another country will be conclusive proof of the fact l>har Ahmad Khan of voluntary acquisition of citizenship of another

country ? Under B, 9 the fact of voluntary acquisi· Union of l•1i• tion of citizcnRhip of another country results in the

Das J. extinction of his right as an Indian citizen. The

rule therefore directly affects a subtantive right and, in the context of s. !.!, must be taken to have beon intended to do so. Such a rulfl cannot obviously be a rule of evidence; it is clearly a rule of substantive law.

Under the law as laid down in the impugned rule tho fact of obtain'-ng a foreign passport will have this result, even though it may very well he that though he has voluntarily acquired such a passport he has not thereby, or for that purpose acquired the citizenship of another country. This may happen for instance, when a person who is a citizen. of India by reason of descent, but is at the same time a citizen of another country, says, France by birth, obtains a passport from the French authorities. Again, each country is of course free to make its own laws. Supposu a foreign country makes a law under which it can issue :i passport to one who is not its national. 'If an Indian takes such a passport, he does not under the law of that country become its national but under the rule now being considered, he is to be taken as a foreign national. The obtaining of such a pass-port in either case cannot under the ordinary process of reasoning have any value whatsoever to show that he ha.i< voluntarily acquired foreign citi-zenship. Yet, under tlw impugned rule a passport so obtained by an Indian ni~tional will extinguish his right of citizenship of India. Clearly, therefore, the impugned rule is a rule subatantive law as distinct from a rule of evidence.

As a last attempt to save thn rule it was argued on behalf of the respondent that it is not really a rule of irrebuttable presumption. It is pointed out that r.30(2) lays down that the Central Government shall· in determining the question 196S' whether, when or how a person has acquired the [4har Ahmad Khan citizenship of another country "have due regard to" v. the rules of evidence specified in Scheduled III. Union of India The effect of the words "shall have due regard to", DasJ. it is urged, is that the Central Government would have normally to take these rules into account but was not strictly bound to do so. Reliance was placed for this contention on the observations of Viscount Simon in Ryots of Garabandho v. Zamindar of Parl.aki-madi(1). T.hat authority appears to U3 to be of no avail for the interpretation of the words "shall have due regard to" in the present case. The effect of . the words "shall have due regard to" will neces-sarily be defferent in different contexts. The present context is that the deciding authority is directed to ha.ve due regard to a rule that one fact will be conclusive proof of another. It is idle to contend that in this context the deciding authority will or can disregard the rule and in the face of the fact which is said to be conclusive proof of another hold the other fact not to have been proved.

It is really unnecessary however to consider the effect. of the words "shall have due regard to", for as soon as it is held that the Rule is void because of its being outside the powers of the rule-making authority any decision in which any regard has been paid to the rule beeomes ""'void.

The question of validit.y of Rule 3 of Schedule III of the Citizenship Act came up for consideration before several High Courts in India. The High Com:t of Madras in Mohomed Usman v. State of Madras(') and the Rajasthan High Court in Ghaural Hasan v.

Stare of Rajasthan (') held the Rule to be valid ;

while the Andhra Pradesh High Court in Mohd.

Khan v. Govt. Andhra Praaesh (')and the Allahabad High Court in Sharafat Ali Khan v. State of U.P.(') =- (I) (1943) L.ll. 70 I.A. 129, 168. (3) A.LR. (1951) Raj. 173,

(2! A.LR. (1961) Mad. 129. (4) A.J.R. [1957] Andh. 1047.

(5) A.J.R. (1960] All. 637.

J9Gt held the Rule to be void. For the reasons men- [{l11r A~mad Kha11 tioned earlier we are of opinion that the ·dew taken

v. by .the Andhra High Court and the Allahabad High L'nion r.f India Court is correct.

DasJ.

The necessary consequence of our conclu-s10n that r.3, Sch. III of tho Citizenship Rules is void is that the dot-0rmination of the Central Go,·ernment that the petitioner has voluntarily <tequired the citizenship of Pakistan after the 26th .January, 19ii0 and before thP 14th Deccmb~r, 1957, ha.~ no legal validity.

Two other contentions have now to be noticed. First, it is said that s.9 itself offends the Constitu-tion as it takes away rights of citizenship. It is sufficient to dispose of this point to say that, if citizenship is a fundamental right, . as to which clou bts may legitimately be entertained, Art. 11 authorises Parliament to make any provision with regard to acquisition and tffm ination of citizenship. Section 9 is thus cleary within this Article. It was next. said that s.9(2) gives unguided power to the Government and is therefore bad as it really amo-unts to an abdication of Parliament's power of legislation under Art. 11. \Ve are unablo to see that s.9(2) gives any unguided power. It first gives the Government the power to provide an authority to decide the question whether a person has acquiri'd foreign eitizenship .. ThiR gives really no pown of subordinate legislation but only em-powers the Government to constitute an authority for deciding a question which the section itself ri>qnires, should be decided. So far aH the sub-section gives power to frame rules of evidence, we think there iR enough guidance provided. All that the Government is empowered to do is to frame rn le• of evidence. 'Whatevo~ difficulty there may be in deciding whether a particular rule is of evidence or not, there is no vagueness about the power given. It is clear cut and limited, for the power is to make rules of evidence and nothing else. If that power 1968 is exceeded then, as in our view has happened in Izhar Ahmad Khan this case, the exercise of the power becomes bad. v. Union of India The difficulty, if any, in deciding what is a rule of evidence, cannot make a power to frame rules of Das J, evidence vague or too wide.

For the disposal of the present petitions in the view that we have taken however, it is necessary that the question whether the petitioners have acquired foreign nationality should he considered and determined by the Central Government in accor-dance with law. We would therefore direct the Central Government to decide the question whether the petitioners have voluntarily acquired the citi-zenship of Pakistan after the 26th January, 1950, in accordance with law, leaving out of account r.3 of Sch. III of the Citizenship Rules, 1956, and on receipt of the result to the enquiry we would proceed with the further hearing of these petitions.

BY COURT. In accordance with the decision of the majority, the petitions fail and are dismissed.

There will be no Order as to costs.