Friday, November 28, 2008

Mohsin Shah’s deportation

Naseer A Ganai

Mohsin Shah was born at Daulatabad, Khanyar, Srinagar on May 25, 1925. He was educated in the Government High School and later he joined SP College.

His father S. Muhammad Shah was doing business in Skardu (Ladakh). In 1945, the Mohsin left for Skardu and in 1947 he accepted a post in Government hospital there. In 1967, his father died and soon after father’s demise, he received several letters from his relation, Qazim Shah, inviting him to visit Srinagar to participate in marriage ceremony of his sister.

Consequently, on July 5m 1968 he applied to the Secretary to the Government Home Department for no objection certificate. The application was forwarded to the Deputy Secretary Union Ministry of Home Affairs and after completing few formalities, no objections certificate was issued to him by the State government.

Mohsin in the first instance only wanted no objection certificate but he was instructed by the High Commissioner of India in Pakistan to apply for visa. He then applied for Pakistani passport. He obtained visa from High Commissioner of India in Islamabad from April 9, 1969 for a one month. Armed with the passport and visa, the he crossed Hussainiwala border and reached Srinagar on May 21, 1969. He stayed in Srinagar and then decided to stay here permanently because he had property here, which was not listed by the government as evacuee.

However some officers who, according to him, were out to grab his property were against his stay in Srinagar and were hell bent to deport him. He applied to stay here permanently and ostensibly the State government was inclined to accept his application. It recommended to New Delhi that he may accorded permission for permanent settlement at Srinagar. The center government however insisted on his deportation on May 13, 1971 and May 31, 1971 passed orders of his deportation forcing him to approach the Court.

The petitioner S. Mohsin Shah filed a writ petition 31 of 1971, in the Court seeking quashing of orders passed by the then Deputy Secretary, Home Department, Government of Jammu and Kashmir directing deportation of the petitioner to Pakistan in accordance with the orders of the Union Ministry of Home.

The case came up for hearing before the full bench comprising Chief Justice, Justice S.M.F Ali, Justice Jaswant Singh, Justice Mian Jalal-ud-Din, Justice Mufti Baha-ud-Din and Justice S. Wasiuddin.

The State and the Center government held that the petitioner after acquiring Pakistani passport cease to citizen of India and has no justification to stay here after expiry of his visa. The counter affidavit filed by the Central government suggested the petitioner was indulging in subversive activities and was security risk.When the case came up for hearing and the Court heard it at some length, the Central Government made an application seeking permission to hold an inquiry under the provisions of section 9 (2) of Citizenship Act of 1955. The Court allowed the Centre government to hold inquiry with directions that the inquiry will be subject to decision of the petition on merits.  The Court however added that its order will not amount to a decision on the applicability or otherwise of section 9 of Indian Citizenship Act.

The Centre government after this shot notice to the petitioner, asking him to file representations. The government after perusal of the representations, on April 26, 1973 forwarded its report to the Court. The report said that petitioner has voluntarily acquired the citizenship of Pakistan after January 26, 1950 and before October 4, 1968 and called for his deportation. The petitioner however filed objections to the report attacking its findings. 

The counsel for the petitioner M.A Beg submitted that the petitioner was compelled by force of circumstances to apply for Pakistani passport, as he had no other way to come to Srinagar. He also submitted that the centre government violated rules of natural justice by not giving personal hearing to the petitioner.

The advocate general of the State, however vehemently contested the arguments and submitted that the petition is not maintainable. He argued the acquisition of the passport by the petitioner and his subsequent conduct clearly shows that he secured Pakistani passport on his sweet will. It said the question as to whether the petitioner was Pakistani citizen or not has to be decided by New Delhi and under section 9(2) of the Citizenship Act there are no rules, which directs centre government to give personal hearing to the petitioner. Moreover, the petitioner never asked for such hearings.

The Court after hearing the arguments explained section 9 (1) of the Act which says, “Any citizen of India who by naturalization, registration or otherwise voluntarily acquires or has at any time between January 19950 and commencement of the Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or as the case may be, such commencement cease to be citizen of India.”

The Chief Justice, Justice S.M.F Ali in his judgment quoted Rajasthan High Court decision in Inder Lal vs Lal Singh case which says, “In our opinion as held in Muhammad Khan versus Government of Andhra Pradesh AIR 1957, the mere fact the a passport is given to a person who is an Indian national, whether the passport is legal evidence or not cannot lead to any irresistible inference that the said person had voluntarily acquired the citizenship of a foreign State, for such a passport could also be issued to a citizen by birth or descent.”

“Therefore,” the Chief Justice, Justice S.M.F Ali said, “a person can lose his citizenship under section 9 but it must be shown that he had acquired the passport voluntarily. This is rather important because the sheet anchor of the case of the petitioner has been that although he did acquire a Pakistani passport, he did not do so out of his own free will but was compelled to apply for it in the circumstances in which he was placed. Thus the petitioner’s contention was that the acquisition of the passport was under duress and also without free consent.”

The Chief Justice held “Inquiry under S. 9(2) of the Act is of a quasi-judicial nature and it must be based on a proper appreciation of the evidence and must comply with the cardinal rules of natural justice. The government however went a step further and prescribed rules in order to determine the procedure to be adopted by the Central government in making an inquiry under section 9 (2).”

The Chief Justice contended that the central government while making the inquiry appears to have overlooked certain fundamental aspects of the grave issues involved in this case. “So far there has not been a single case in any court in India where a person while travelling from one part of India to another has had to obtain a passport from foreign country for travelling to that part,” the Chief Justice held, adding that the petitioner never migrated to Pakistan but traveled from one part of the country Srinagar to another part Skardu. “It was incumbent on the central government to consider these broad aspects carefully because they have got far reaching consequences,” the chief justice held, describing inquiry held by the centre government as vitiated. “In these circumstances the order of deportation of the petitioner on the basis of the report of the central government based on an invalid inquiry must also fall to the ground,” he held and directed the government not to deport the petitioner.




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