Holding

A person acquires Indian citizenship at the commencement of the Constitution only if he has his domicile in India at that time, which requires a clear intention to reside permanently (animus manendi); the petitioners failed to demonstrate such intention and therefore remained foreigners.

Summary

The petitioners, foreign missionaries who had been residing in India since the pre‑Independence era on periodically renewed residential permits, were ordered to leave the country in July 1987. They contended that, having been ordinarily resident for more than five years immediately before the commencement of the Constitution, they had acquired domicile of choice and therefore Indian citizenship under Article 5(c). The Court examined the concept of domicile, distinguishing domicile of origin from domicile of choice and held that acquisition of a domicile of choice requires a clear intention to make India a permanent home (animus manendi), which the petitioners failed to prove. Consequently, the petitioners remained foreigners and were not entitled to the rights under Article 19(1)(e); only Article 21 applied to them. The Court also held that the power to expel a foreigner under the Foreigners Act is absolute and not fettered by the Constitution, and that the order of deportation was issued by the Central Government and correctly executed by the Superintendent of Police. No violation of natural‑justice principles was found as the petitioners had not been denied a hearing under the applicable statutory procedure. The petitions were therefore dismissed.

Issues considered

Whether the petitioners had acquired Indian citizenship by virtue of Article 5(c) of the Constitution
Whether the petitioners possessed domicile of choice in India at the commencement of the Constitution
Whether the power to expel a foreigner under the Foreigners Act is absolute and unrestricted by constitutional provisions
Whether the petitioners were entitled to a hearing under principles of natural justice before expulsion
Whether the Superintendent of Police was authorized to issue the deportation order

Legislation cited

Citizenship Act, 1955s. 6, s. 9
Foreigners Act, 1946s. 3, s. 9

Subjects

domicilecitizenshipforeignerexpulsionFundamental RightsArticle 5Article 19(1)(e)Article 21Foreigners ActCitizenship Actnatural justice

Judgment

MR. LOUIS DE RAEDT & ORS.
A
v.
UNION OF INDIA AND ORS.

JULY 24, 1991
~-
J [LAUT MOHAN SHARMA AND J.S. VERMA, JJ.] B

Constitution of india, 1950: Article 5-'domicile'-Meaning of-
Domicile of origin and domicile of choice-difference between-
Domicile of choice-How acquired-Intention to stay permanently-
Burden of proof.
-~

Articles 19( l)(e) and 21-Foreigner not acquiring Indian citizen-
c
" ship-Not entitled to fundamental right under Article 19( l)(e)-Funda-
mental right under Article 21 available-Right of Government to expel
such persons-Whether absolute and unrestricted.

Foreigners Act, I946: Section 3-expulsion of foreigner from D
India on his failure to acquire Indian citizenship-Right of Government
of India-Whether absolute and unrestricted-Decision to deport taken
~
by the competent authority, the Central Government-Superintendent
of Police merely executed the order-Hence not vitiated.
\'
Citizenhip Act, 1955: Section 6 and third Schedule--Citizenship E
' -Acquiring of-Domicile by choice-Intention to permanently stay in
India-Burden of proof-Staying in India with foreign passports with
residential permits renewed from time to time-Whether establishes
animus manendi-Whether eniitled to citizenship.

Private International Law: Foreigner staying in India on Residen- F
tial permits renewed from time to time-Indian citizenship not acquired
-Right of Central Government to expel.

Administrative Law: Principles of Natural Justice~Hearing-
Expulsion of foreigner not acquiring Indian citizenship-Opportunity
of hearing-No hard and fast rule-Absence of material in support of G
his claim-Non affording of opportunity before passing the expulsion
order-Whether vitiated.
'
II" The Petitioners, foreign nationals engaged in Christian missio-
nary work have been staying in India continuously for a long time since
pre-independence period. They continued to stay on the basis of resi- H

149
150 SUPREME COURT REPORTS [1991] 3 S.C.R.

A dential permits renewed from time to time. In 1985 an order was passed
asking them to leave the country and they made representations to the
authorities, followed by further representations in 1986 for naturalisa-
tion/further extension of stay. However by order dated 8. 7.1987 their
request was rejected and they were asked to leave the country by 31si
July, 1987. The petitioners challenged the said order in the writ peti-
B tions filed before this Court.

It was contended by the petitioners that since they were staying in
this country for a period of more than five years immediately preceding
the commencement of the Constitution, they should be held to have duly
acquired Indian citizenship on the basis of Article S(e) of the Constitu'
C tion of India; that their continuous stay in India has established their
case of domicile in India which cannot be rejected merely because they
were holding foreign passports; that proceedings against them should
have been initiated under section 9 of the Foreigners Act enabling them
to defend their case; that they were denied hearing; and that in no event
the Superintendent of Police who had signed the deportation order was
D authorised to do so.

Dismissing the Writ Petitions, this Court,

HELD: I. Every person must have a personal law, and accord-
ingly every one must have a domicile. He receives at birth a domicile of
E origin which remains his domicile, wherever he goes, unless and until
he acquires a new domicile. The new domicile, acquired subsequently,
is generally called a domicile of choice. The domicile of origin is
received by operation of law at birth and for acquisition of a domicile of
choice one of the necessary conditions is the intention to remain there '-'
permanently. The domicile of origin is retained and cannot be divested
F until the acquisition of the domicile of choice. By merely leaving his
country, even permanently, one will not, in the eye of law, lose his
domicile until he acquires a new one. This proposition that the domicile
of origin is retained until the acquisition of a domicile of choice is well
established and does not admit of any exception. I1560-F I

G Central Bank of India v. Ram Narain, [1955] I SCR 697, relied
on.

Halsbury's Laws of England, 4th Edn., Vol. 8, para 421,
referred to.

H 2. One of the necessary conditions mentioned in Article 5 of the
L.b. RAEDT v. U.0.1 15i

Consiitlltioit is iliat the person concerned must be having his domicile iri A
the territory of iitdia at the coinnielii:ement of the Constitution. It is noi
established ihai they had such an intention for the sole reason .thai the
.....L
\~ Petitioners·liave been siaying iii india for more than a decade before the
commenceiileilt of the Constitution, and it cannot be deemed that they
acquired domicile in India and consequently Indian citizenship. [154E]

3.1. For the acquisition of a domicile of choice, it must be shown
that the person concernetl had a certain state of miiid, the animus
manendi. If he dainis thai lie acqiiired a new domicile at a j>arlicular
time, he must prove that he hat! formed the intention of making his
permanent home in the c<iuiiiry of residence and of continuing to reside
there permanentiy. Residence alOrie; iinaccoiilj>anied by this state of
mind, is insufficient. [156H; i57 Al d

3.2. The burden to prove that the petitioners had an intention io
stay permanently in India lies on thein. The available materiais oil iiu;
record leave no room for doiibt that the petitioners ditl not have sucil
intention. At best it caii be said ihai they were uncertain about their Jj
permanent home. During the relevant period very significant and vital
political arid social changes were taking place in this country, and those
~-
who were able to make up their mind to adopt this country as their own,
took appropriate legal steps. The petitioners preferred to stay on, on
the basis of their passports issued by other countries, and obtained from
time to time jiermissioii of the Indian authorities for their furtlier stay
for specific periods. None of ihe applications flied by ihe peiitiiirlers in
this coniledion everi renioiely suggested that they had formed an iilteil•
lion of pernianeiltiy residing here. [157B•D I

Mohd. Ayub Khan v. Commissioner of Police, Madras, [i965] 2
SCR 884 and Kedar Pandey v. Narain Bikram Sah, (1965] 3 SCR 793, F
dis'.inguished.

Union of India v. Ghaus Mohammed, [1962] I SCR 744, .eferred
to.
4. The fundamental right of the foreigner is confined to Attide 2 i (j
for life and liberty and does not include the right to reside and settle in
this country, as mentioned in Article 19(1)(e), which is applicabie only
to the citizens ofthis country. The power of tlie Goveriiritent hi indiil to
expel foreigners is absolute and unlimited alid there is rib jitovisioh iii
the Constituti<in fettering this discretion. The lel!ai positioli i>ii this
aspect is not uniform in all the coliniries hut so far the iaw whkil H
152 SUPREME COURT REPORTS [199n 3 S.C.R.

operates in India is concerned, the Executive Government has unre-
A
stricted right to expel a foreigner. [158C-E)

Hans Muller of Nurenburg v. Superintendent, Presidency Jail,
Calcutta & Ors., [1955] 1SCR1284, relied on.

B 5. So far the right to be heard is concerned, there cannot he any
hard and fast rule about the manner in which a person concerned has to
be given an opportunity to place his case and it is not claimed that if the
authority concerned had served a notice before passing the impugned
order, the petitioners could have produced some relevant material in
support of their claim of acquisition of citizenship, which they failed to ,.
do in the absence of a notice. [158E-F)
c
6. The contention that the Superintendent of Police was not
authorised to direct deportation of the petitioners, is devoid of merit.
Actually the order was not passed by the Superintendent of Police. It
was the decision of the Central Government, which was being executed
D by the Superintendent of Police. This is clear from the order. [158G)

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1410 of
1987.

(Under Article 32 of the Constitution of India).
E
WITH
Writ Petition (Criminal) No. 528 of 1987.
AND
Writ Petition (Civil) No. 1372 of 1987.
J.P. Verghese, Aby T. Varkey and N.N. Sharma for the
Petitioners.

Altaf Ahmed, ASG. U.N. Bachawat, R.B. Mishra, Ms. A. Sub-
hashini and Uma Nath Singh for the Respondents.
G
The Judgment of the Court was delivered by

SHARMA, J. By these three petitions under Article 32 of the
Constitution, the petitioners who are foreign nationals, have challen-
ged the order dated 8.7.1987 whereby their prayer for further exten-
H sion of the period of their stay in India was rejected and they were
L.D. RAEDT v. U.0.1 [SHARMA, J.] 153

asked to leave the country by the 31st July, 1987. Mr. Louis De Raedt,
A
petitioner in W.P. (C) No. 1410 of 1987, came to India in 1937 on a
Belgium passport with British visa and Mr. B.E. Getter, the petitioner
in W.P. (Cr!.) No. 528 of 1987 ill 1948 on an American passport and '
both have been engaged in Christian missionary work. The petitioner
in W.P. (C) No. 1372 of 1987, Mrs. S.J. Getter is Mr. B.E. Getter's
wife. Mr. Verghese, the learned counsel, who appeared for the three B
petitioners, referred to the facts in W.P. (C) No. 1410 of 1987 and
stated that the cases of the other two petitioners are similar and they
are entitled to the same relief as Mr. Louis De Raedt.

2. According to his case, Mr. louis De Raedt has been staying in
India continuously since 1937 excepting on two occasions when he
Went to Belgium for short periods in 1966 and 1973. It has been con-
c
tended that by virtue of the provisions of Article 5(c) of the Constitu-
tion of India the petitioner became a citizen of this country on
26.11.1949, and he cannot, therefore, be expelled on the assumption
that he is a foreigner. Referring to the Foreigners Act it was urged that
power under Section 3(2)(c) could not be exercised because the Rules D
under the Act have not been framed so far. Alternatively, it has been
argued that the power to expel an alien also has to be exercised only in
accordance with the principles of natural justice and a foreigner is also
entitled to be heard before he is expelled. For all these reasons it is
claimed that the impugned order dated 8. 7 .1987 being arbitrary should
be quashed and the authorities should be directed to permit the E
petitioners to stay on.

3. It has been contended by Mr. Verghese that after the inde-
pendence of India, appropriate orders were passed permitting many
foreign Christian missionaries to stay on permanently in the country
but, as in 1950 petitioner Mr. Louis De Raedt was working in certam F
remote area of the Adivasi belt in Bihar, he could not obtain the
necessary order in this regard. Later, however, he had also filed appli-
cations for the purpose whkh have re.mained undisposed of till today.
In 1985 an order was passed aski'lg him to leave the country, and he
made a representation to the authorities on 20. 9.1985, a true copy
whereof is Annexure I to the writ petition. On 1.3.1986 he filed G
another application for naturalisation, a copy whereof has been
marked as Annexure II. A copy of his third application dated
15.3.1986 is Annexure III. The impugned order Annexure IV was
passed in this background.

4. The main ground urged by the learned counsel is based on H
154 SUPREME COURT REPORTS [1991] 3 S.C.R.

Article 5 of the Constitution, which reads as follows:

"5. Citizenship at the commencement of the Constitution
-At the commencement of this Constitution every person
who has his domicile in the territory of India and
(a) who was born in the territory of India, or

(b) either of whose parents was born in the territory of
India; or

(c) who has been ordinarily resident in the territory of
India for not less than five years immediately preceding
such commencement,

shall be a citizen of India."
The argument is that since Mr. Louis De Raedt was staying in this
country since 1937, that is, for a period of more than five years
Q immediately preceding the commencement of the Constitution, he.
must be held to have duly acquired Indian citizenship.

5. One of the necessary conditions mentioned in Article 5 of the
Constitution is that the person concerned must be having his domicile
in the territory of India at the commencement of the Constitution. The
I:\ question is as to whether the petitioner fulfils this condition? The facts
stated by the petitioner himself do not leave any room for doubt that
he did not have his domicile here. In his application dated 20.9.1985
addressed to the Home Minister, Government of Madhya Pradesh,
Bhop~l, Annexure I, the petitioner stated that he had been staying in -~

this country on the basis of residential permit renewed from time to
f time and when he had gone to Belgium, "No Objection to Return"
Certificate was issued without difficulty. He asserted that since he was
working in education and social work for a long period he was "more
Indian than Belgium". Towards the end of his application he stated
thus:
"Therefore, I plead for a cancellation_ of the above order
on compassionate ground.

I would reg uest Your Honour to kindly allow me to
stay in India till the end of my life by extending my residen-
tial permit. For this act of kindness I will be ever grateful to
you.
(emphasis added)
L.D. RAEDT v. U.0.1 [SHARMA, J.l

In his application dated 1.3.1986 addressed to the Collector, Surguja
(Madhya Pradesh), which is Annexure II, he mentioned the subject as
155
'
A
"request for naturalisation". In this application he referred to the
provisions of Article 5 of the Constitution as a basis of his claim but
concluded his prayer thus:

"If however Government decides that I have LOST my B
citizenship (sic) would be grateful to be informed about it.
So that I can apply under one of the naturalisation Act.
(Sic)"

He reiterated his stand in Annexure III dated 15.3.1986.

6. The entire relevant official records wece available with the C
learned counsel for the respondents during the hearing of the case,
which indicated that the impugned order (Annexure IV) was passed on
the basis of another application of the petitioner filed earlier on
25.1.1980. Photostat copies of the said application were filed and kept
on the records of the case. It was stated therein that the authorised D
.,. period for his stay in India was going to expire on 3.3.1980. It con-
tained a prayer for the extension of the period of stay by one year. The
petitioner mentioned the reason for extension of this stay thus: "to do
further social work as a missionary". The purpose of his visit to India
was also similarly mentioned: "to do social work as a missionary".
There was no indication whatsoever in the said application that he E
intended to stay in th.is country on a permanent basis. The period for
which the extension was asked for being one year only indicated that
by 1980 he had not decided to reside here permanently.

7. Mr. Verghese has contended that the fact that the petitioner
has been staying in this country since 1937 and visited Belgium only F
twice is sufficient by itself to establish his case of domicile in India. It
was argued that the petitioner's case cannot be rejected merely for the
reason that he has been holding a foreign passport. Re1iance was
placed on Mohd. Ayub Khan v. Commissioner of Police, Madras and
Another, [1965] 2 SCR 884 and Kedar Pandey v. Narain Bikram Sah,
[ 1965] 3 SCR 793. Reference was also made to Union of India v. G
Ghaus Mohammed, [1962] 1 SCR 744, and it was argued that a pro-
ceeding ought to have been started against. the petitioner under
Section 9 of the Foreigners Act where he should have been allowed to
def.end. The learned counsel submitted fhat even a foreigner who
comes on the strength of a foreign passport, in case of his overstaying
has to be heard before he can be thrown out, and this has been denied H
tq the petitioners.
156 SUPREME COURT REPORTS I1991) 3 S.C.R.
8. Lastly, Mr. Verghese contended that in no event the
A
Superintendent of Police who signed the impugned order, i.e. Anne-
xure, IV, is authorised to direct deportation of the petitioner.

9. There is no force in the argument of Mr. Verghese thai for the
sole reason that the petitioner has been staying in this country for
B more than a decade before the commencement of the Constitution, he
must be deemed to have acquired his domicile in this country and
consequently the Indian citizenship. Although it is impossible to lay
down an absolute definition of domicile, as was stated in Central Bank
of India v. Ram Narain, [ 1955) I SCR 697 it is fully established that an
ifltention to reside for ever in a country where one has taken up his
residence is an essential constituent element for the existence of
c domicile in that country. Domicile has been described in Halsbury's
Laws of £.ngland. 4th edition. Volume 8. Paragraph 421) as the legal
relationship between individual and a territory with a distinctive legal
system which invokes that system as his personal law. Every person
must have a personal law, and accordingly every one must have a
D domicile. He receives at birth a domicile of origin which remains his
domicile, wherever he goes, unless and until he acquires a new
domicile. The new domicile, acquired subsequently, is generally called
a domicile of choice. The domicile of origin is received by operation of
law at birth and for acquisition of a domicile of choice one of the
necessary conditions is the intention to remain there permanently. The
E domicile of origin is retained and cannot be divested until the acquisi-
tion of the domicile of choice. By merely leaving his country, even
permanently, one will not, in the eye of law, lose his domicile until he
acquires a new one. This aspect was discussed in Central Bank of India
v. Ram Narain (supra) where it was pointed out that if a person leaves
the country of his origin with undoubted intention of never returning
F to it again, nevertheless his domicile of origin adheres to him until he
actually settles with the requisite intention in some other country. The
position was summed in Halsbury thus:

"He may have his home in one country, but be deemed to
be domiciled in another."
G
Thus the proposition that the domicile of origin is retained until the L
acquisition of a domicile of choice is well established and does not
admit of any exception.

10. For the acquisition of a domicile of choice, it must he shown
H that the person co.ncerned had a certain state of mind, the animus
L.D. RAEDT v. U.0.1 [SHARMA, J.l 157

manendi. If he claims that he acquired a new domicile at a particular
A
time, he must prove that he had formed the intention of making his
permanent home in the country of residence and of continuing to
reside there permanently. Residence alone, unaccompanied by this
state of mind, is insufficient.
11. Coming to the facts of the present cases the question which
B
has to be answered is whether at the commencement of the Constitu-
tion of India the petitioners had an intention of staying here perma-
nently. The burden to prove such an intention lies on them. Far from
establishing the case which is now pressed before us, the available
materials on the record leave no room for doubt that the petitioners
did not have such intention. At best it can be said that they were
uncertain about their permanent home. During the relevant period c
very significant and vital political and social changes were taking place
in this country, and those who were able to make up their mind to
• adopt this country as their own, took appropriate legal steps. So far
the three petitioners are concerned, they preferred to stay on, on the
basis of their passports issued by other countries, and obtained from
time to time permission of the Indian authorities for their further stay D
for specific periods. None of the applications filed by the petitioners in
this connection even remotely suggests that they had formed any
intention of permanently residing here.
12. None of the cases relied upon on behalf of the petitioners is
of any help to them. The case of Mohd. Ayub Khan was one where the E
appellant had made an application to the Central Government under
Section 9(2) of the Indian Citizenship Act, 1955 for the determination
of his citizenship. Section 9(1) says that if any citizen of India acquired
the citizenship of another country between 26. 1.1950 and the com-
mencement of the Citizenship Act, he ceased to be a citizen of India
and sub-section (2) directs that if any question arises as to whether, F
when or how any person has acquired the citizenship of another
country, he shaJI be determined by the prescribed authority. Mohd.
Ayub Khan was a citizen of this country at the commencement of the
Constitution of India and was asked to leave the country for the reason
that he had obtained a Pakistani Passport. The question which thus
arose in that case was entirely different. The case of Kedar Pandey v. G
Narain Bikram Sah, (supra), does not help the petitioners at all. On a
consideration of the entire facts and circumstances this Court con-
cluded that "the requisite animus manendi as has been proved in the
finding of the High Court is correct". The Respondent Narain Bikram
Sah, who claimed to have acquired Indian citizenship, had extensive
properties at large number of different places in India and had pro- H
158 SUPREME COURT REPORTS [1991] 3 S.C.R.

du<:ed many judgments showing that he was earlier involved in litiga-
A
tions relating to title, going upto the High Courts in India and some
time the Privy Council stage. He was born at Banaras and his mar-
riage with a girl from Himachal Pradesh also took place at Banaras
and his <:hildren were born and brought up in India. Besides his other
activities supporting his case, he also produced his Indian passport. Ir
B the rnses before us the learned counsel could not point out a single
piece of evidence or circumstance which can support the petitioners'
case, and on the other hand they have chosen to remain here on
foreign passports with permission of Indian authorities to stay, on the
basis of the said passports. Their claim, as pressed must, therefore, be
rejected.
-
c 13. The next point taken on behalf of the petitioners, that the
foreigners also en joy some fundamental right under the Constitution
of this country, is also of not much help to them. The fundamental
right of the foreigner is confined to Article 21 for life and liberty and
does not include the right to reside and settle in this country, as
mentioned in Article 19(1)(e), which is applicable only to the citizens
D of this country. It was held by the Constitution Bench in Hans Muller
of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors,
[ 1955] I SCR 1284 that the power of the Government in India to expel
foreigners is absolute and unlimited and there is no provision in the
Constitution fettering this discretion. It was pointed out that the legal
position on this aspect is not uniform in all the countries but so far the
E law which operates in India is concerned, the Executive Government
has unrestricted right to expel a foreigner. So far the right to be heard
is concerned, there cannot be any hard and fast rule about the manner
in which a person concerned has to be given an opportunity to place his
case and it is not claimed that if the authority concerned had served a
notice before passing the impugned order, the petitioners could have
F produced some relevant material in support of their claim of acquisi-
tion of citizenship, which they failed to do in the absence of a notice.
14. The last point that the impugned order (Annexure IV) was
passed by the Superintendent of Police, who was not authorised to do
so, is also devoid of any merit. The order was not passed by the
G Superintendent of Police; the decision was of the Central Government
which was being executed by the Superintendent, as is clear from the
order itself.

15. For the reasons me.ntioned above, we do not find any merit
in the petitions, which are accordingly dismissed, but without costs.

G.N. Petitions dismissed.