Sanchayita Lahkar

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sindhu Sharma dismissed a petition challenging the deportation of two individuals on the grounds that they had voluntarily acquired Pakistani citizenship. The court held that the petitioners, by entering India on Pakistani passports and seeking residential permits, had admitted their foreign nationality, thereby ceasing to be Indian citizens under Section 9(1) of the Citizenship Act, 1955. The court concluded that the petition lacked merit and upheld the validity of the deportation order issued by the authorities.

The petitioners, a husband and wife, sought a writ of certiorari and mandamus from the High Court to declare their deportation as illegal and to restrain the authorities from removing them from the territory of Jammu & Kashmir. Petitioner No. 1 was born in Srinagar on February 7, 1945, and came from a family of permanent residents and landholders in the state. His grandfather held a State Subject Certificate issued by the Government of J&K under Order No. 111 of 1977. During the partition, Petitioner No. 1's father, who was engaged in business in Rawalpindi, Pakistan, remained there during the 1948 India-Pakistan war, which led to the petitioner, then a child, being stranded in Pakistan. The petitioner subsequently acquired Pakistani nationality due to what he claimed were circumstances beyond his control.

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Petitioner No. 2, also born in Srinagar on April 23, 1962, claimed to be a permanent resident of Jammu & Kashmir. She possessed Indian Passport No. A704381 issued on May 30, 1986. She married Petitioner No. 1 in Rawalpindi in December 1986 and alleged that she faced cruel treatment from her in-law’s post-marriage. The petitioners returned to Srinagar in July 1988 on Pakistani passports with their minor son. Upon arrival, they were issued Residential Permits RP223/88 and RP224/88 dated July 27, 1988, by the Superintendent of Police, CID, Srinagar. These permits authorized their temporary stay in the region.

Subsequently, their stay was extended three times by the competent authority:

• Order No. Home/156/88/visa dated August 29, 1988

• Order No. Home/156/88/visa dated September 15, 1988

• Order No. Home/156/88/visa dated October 7, 1988

These extensions collectively allowed them to stay until November 1, 1988. The petitioners then applied for a further extension and requested resumption of Indian citizenship. A representation dated June 18, 1989, was submitted to the authorities. While this representation was under consideration, an order for deportation was issued against them.

The petitioners contended that they were entitled to Indian citizenship based on their birth and residency in Jammu & Kashmir. They argued that the acquisition of Pakistani citizenship was involuntary and claimed that their continuous stay in India demonstrated their intention to permanently reside in the country.

The respondents, including the State of Jammu & Kashmir and the Union of India, opposed the petition. They asserted that the petitioners had voluntarily acquired Pakistani citizenship and had entered India using Pakistani passports. Citing Section 9(1) of the Citizenship Act, 1955, the respondents argued that any person who voluntarily acquires citizenship of another country automatically ceases to be an Indian citizen. They further stated that the petitioners’ representation to the Ministry of Home Affairs, Government of India, itself acknowledged their non-citizen status.

The respondents also pointed out that Petitioner No. 2 married her maternal uncle’s son, Petitioner No. 1, in Rawalpindi, and entered India on a short-term visa. Their visas were extended up to November 2, 1988, and further requests for extension were denied. Consequently, Deportation Order No. Home/156/Visa/88 dated September 13, 1989, was issued.

The petitioners remained in India due to an interim stay granted by the High Court on April 25, 1990. They continued to reside in Srinagar without any documented approval for citizenship or further extension of stay.

The court examined constitutional provisions and the Citizenship Act, 1955. It referred to Part II of the Constitution, which includes Articles 5 to 11 relating to citizenship. The court cited Article 9, which states: "No person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State."

The court further quoted Section 9(1) of the Citizenship Act, 1955:

"Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India."

The court observed that Petitioner No. 1 had migrated to Pakistan and voluntarily retained Pakistani citizenship. Petitioner No. 2 also acquired Pakistani citizenship post-marriage. Their travel on Pakistani passports was deemed clear evidence of their foreign nationality.

The court recorded: "Petitioner No. 1 is admittedly a citizen of Pakistan and chosen to remain so till date after his marriage to petitioner No. 2. He visited India in July 1988. Petitioner No. 2 voluntarily acquired the citizenship of Pakistan after her marriage. Both the petitioners had travelled to India in 1988 along with their son on Pakistani Passport."

Regarding the application for Indian citizenship, the court stated: "The petitioners have not placed on record any documentary proof of the fact that they had applied for the citizenship in terms of the Citizenship Act or Rules. There is thus, clear evidence to explain the fact that the petitioners on the strength of passport of Pakistan and Visa, permission were granted to them to visit India."

The court cited relevant precedents including Izhar Ahmad Khan vs. Union of India, 1962 (3) SCR 235: "It is clear that the voluntary acquisition by an Indian citizen of the citizenship of another country terminates his citizenship 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."

The court also referred to Union of India vs. Pranav Srinivasan (2024 Online SC 2920), noting: "In view of Section 9(1), those citizens of India who voluntarily acquire citizenship of another Country...upon acquisition of such citizenship, automatically cease to be citizens of India."

It recorded that the petitioners had no evidence showing formal approval of Indian citizenship and had overstayed in India after visa expiry.

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The court concluded that the petition was without merit. It recorded: "The petitioners have acted in their own volition acquired the citizenship of a foreign Country. Their passports and the residential permit issued in their favour are cogent, unequivocal evidence of the fact that the petitioners are not citizens of India and, as such, orders to deport them were valid."

"There is nothing on record to suggest that their request for grant of citizenship of India has been accepted. They are staying in India on the strength of Pakistani passports, the period of which has expired and after expiry of the extension of their stay they had to return to their country."

Accordingly, the petition was dismissed: "In view of the aforementioned discussion, the instant petition is found to be without any merit and the same is, accordingly, dismissed."

Advocates Representing the Parties:

For the Petitioners: Mr. Mohammad Altaf Khan, Advocate with Mr. Hashir Shafiq, Advocate

For the Respondents: Mr. Mohsin Qadiri, Sr. AAG with Ms. Maha Majeed, Assisting Counsel; Mr. T. M. Shamsi, DSGI with Ms. Sahila Nissar, Assisting Counsel

Case Title: Mohd Khalil Qazi & Anr. v. State of J&K & Ors.

Case Number: OWP No.114/1990

Bench: Justice Sindhu Sharma