Louis De Raedt v. Union of India

Foreign missionaries who had lived in India for decades on residential permits claimed Indian citizenship under Article 5(c) of the Constitution and challenged an order asking them to leave. The Supreme Court held that they had not shown an intention to settle permanently, so they had no domicile in India. It also held that the Government's power to expel foreigners is absolute and that a foreigner has no right to reside under Article 19(1)(e).

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

Mr. Louis De Raedt — petitioner in Writ Petition (Civil) No. 1410 of 1987; a Belgian national who came to India in 1937 on a Belgian passport with a British visa, engaged in Christian missionary work.

Mr. B.E. Getter — petitioner in Writ Petition (Criminal) No. 528 of 1987; an American who came in 1948 on an American passport, also a Christian missionary.

Mrs. S.J. Getter — petitioner in Writ Petition (Civil) No. 1372 of 1987; wife of Mr. B.E. Getter.

Union of India and others — respondents, represented by Mr. Altar Ahmed, ASG and others.

Procedural History

1. In 1985 an order asked Mr. De Raedt to leave the country. He made a representation on 20 September 1985 (para 3).
2. On 1 March 1986 he applied for naturalisation, and on 15 March 1986 he filed a third application (para 3).
3. By order dated 8 July 1987 the request for further extension of stay was rejected, and the petitioners were told to leave by 31 July 1987 (para 1).
4. The petitioners filed three petitions under Article 32 of the Constitution. The Court dismissed them on 24 July 1991 (paras 1, 15).

Facts

1. Mr. De Raedt came to India in 1937 on a Belgian passport with a British visa. Mr. Getter came in 1948 on an American passport. Both were engaged in Christian missionary work (para 1).
2. Mr. De Raedt stayed in India continuously since 1937 except for two short visits to Belgium in 1966 and 1973 (para 2).
3. After independence, orders were passed permitting many foreign Christian missionaries to stay permanently. In 1950 Mr. De Raedt was working in a remote area of the Adivasi belt in Bihar and could not obtain such an order. He later filed applications that remained undisposed (para 3).
4. In his application of 20 September 1985 to the Home Minister, Government of Madhya Pradesh, he said he stayed on a residential permit renewed from time to time. He said a No Objection to Return certificate was issued without difficulty when he went to Belgium (para 5).
5. He said he was "more Indian than Belgium", and asked on compassionate ground to be allowed to stay in India till the end of his life by extending his residential permit (para 5).
6. His application of 1 March 1986 to the Collector, Surguja was headed request for naturalisation. It cited Article 5 as the basis, but said that if the Government decided he had lost his citizenship, he would apply under a naturalisation Act (para 5).
7. He repeated his stand in the application of 15 March 1986 (para 5).
8. The official records showed the impugned order was passed on an earlier application of 25 January 1980. It said his authorised stay would expire on 3 March 1980 and asked for one year's extension, to do further social work as a missionary. The purpose of his visit was also stated as social work as a missionary (para 6).
9. That application gave no indication that he intended to stay permanently. A one year extension showed that by 1980 he had not decided to settle permanently (para 6).

Issues Raised

1. Did the petitioners, staying in India for more than five years before the commencement of the Constitution, become citizens under Article 5(c), which needs a domicile in India (paras 4-5)?
2. Does a foreigner enjoy any fundamental right against expulsion, including under Article 19(1)(e) (para 13)? The questions are drawn from the points argued, and the Court did not frame issues.
3. Was the order invalid for want of a hearing or because the Foreigners Rules were not framed (paras 2, 7, 13)?
4. Was the Superintendent of Police, who signed the order, authorised to direct deportation (paras 8, 14)?

Arguments Contended

For the petitioners (Mr. J.P. Verghese, Mr. Aby T. Varkey and Mr. N.N. Sharma):

• Mr. De Raedt stayed in India since 1937, more than five years before the Constitution, so by Article 5(c) he became a citizen on 26 November 1949 and cannot be expelled as a foreigner (para 2).
• Power under Section 3(2)(c) of the Foreigners Act could not be used because Rules under the Act had not been framed (para 2).
• The power to expel an alien must be used in accordance with natural justice, and a foreigner must be heard before expulsion. The order was arbitrary and should be quashed (para 2).
• Many foreign Christian missionaries were permitted to stay permanently after independence. Mr. De Raedt could not obtain the order because he worked in a remote area, and his later applications remained undisposed (para 3).
• His stay since 1937 and two visits to Belgium are enough by themselves to establish domicile, and a foreign passport cannot defeat the case. He relied on Mohd. Ayub Khan v. Commissioner of Police, Madras ([1965] 2 SCR 884), Kedar Pandey v. Narain Bikram Sah ([1965] 3 SCR 793) and Union of India v. Ghaus Mohammed ([1962] 1 SCR 744) (para 7).
• A proceeding under Section 9 of the Foreigners Act should have been started, where the petitioner could defend. Even an overstaying foreigner must be heard before expulsion, and this was denied (para 7).
• The Superintendent of Police, who signed the order, had no authority to direct deportation (para 8).
• Foreigners also enjoy some fundamental rights under the Constitution (para 13).

For the respondents (Mr. Altar Ahmed, ASG, Mr. U.N. Bachawat, Mr. R.B. Mishra, Ms. A. Subhashini and Mr. Uma Nath Singh): the judgment does not set out their submissions separately. The respondents' counsel had the official records with them at the hearing, and photostat copies of the application of 25 January 1980 were filed (para 6).

Court's Reasoning

The judgment is by L.M. Sharma, J. for the Bench of L.M. Sharma and Jagdish Saran Verma, JJ. Paragraph numbers are those of the judgment.

Sharma, J. (for the Bench)

Article 5 and domicile

1. Noted: The three petitions challenge the order of 8 July 1987. The counsel referred to the facts in Writ Petition (Civil) No. 1410 of 1987, saying the other cases are similar. (para 1)
2. Noted: Article 5 makes a person a citizen at the commencement of the Constitution if he has his domicile in India and meets one of three tests. (para 4)
   • He was born in India.
   • Either of his parents was born in India.
   • He was ordinarily resident in India for at least five years immediately before the commencement.
3. Held: One necessary condition in Article 5 is that the person must have his domicile in the territory of India at the commencement of the Constitution. The petitioner's own facts leave no room for doubt that he did not have his domicile here. (para 5)
4. Held: His applications show that he stayed on a residential permit renewed from time to time, and asked for compassionate permission to stay. His application of 1 March 1986 cited Article 5, but also said he would apply under a naturalisation Act if the Government held that he had lost his citizenship. (para 5)
5. Held: The application of 25 January 1980 gave no sign that he meant to stay permanently. The one year extension sought in 1980 showed he had not decided to settle. (para 6)
6. Held: There is no force in the argument that a stay of more than a decade before the Constitution, by itself, gives domicile and so citizenship. (para 9)
7. Noted: Central Bank of India v. Ram Narain ([1955] 1 SCR 697) said an absolute definition of domicile is impossible. It is fully established that an intention to reside for ever in a country is an essential element of domicile there. (para 9)
8. Noted: Halsbury's Laws of England (4th ed., Vol. 8) describes domicile as the legal relationship between an individual and a territory with a distinctive legal system, which invokes that system as his personal law. (para 9)
9. Noted: Every person must have a domicile. He receives at birth a domicile of origin, which stays with him wherever he goes until he acquires a new one, called a domicile of choice. (para 9)
10. Noted: The domicile of origin is received by operation of law at birth. One necessary condition for a domicile of choice is the intention to remain there permanently. By merely leaving his country, even permanently, a person does not lose his domicile until he acquires a new one. (para 9)
11. Noted: Central Bank of India said that even a person who leaves his country with an undoubted intention never to return retains his domicile of origin until he settles in another country with the requisite intention. Halsbury says he may have his home in one country but be deemed domiciled in another. (para 9)
12. Held: The proposition that the domicile of origin is retained until a domicile of choice is acquired is well established and "does not admit of any exception". (para 9)
13. Held: To acquire a domicile of choice, the person must show a certain state of mind, the animus manendi. If he says he acquired a new domicile at a given time, he must prove he formed the intention of making his permanent home there and continuing to reside permanently. "Residence alone, unaccompanied by this state of mind, is insufficient". (para 10)
14. Held: The question is whether at the commencement of the Constitution the petitioners intended to stay permanently. The burden of proving that intention lies on them. (para 11)
15. Held: The records leave no room for doubt that the petitioners did not have such an intention. At best they were uncertain about their permanent home. (para 11)
16. Held: During the period, vital political and social changes occurred, and those who decided to adopt India took legal steps. The petitioners preferred to stay on their foreign passports, with permission of the Indian authorities for specific periods. None of their applications even remotely suggests an intention to reside permanently. (para 11)

The cases relied on by the petitioners

1. Held: None of the cases the petitioners relied on helps them. (para 12)
2. Noted: In Mohd. Ayub Khan, the appellant applied under Section 9(2) of the Indian Citizenship Act, 1955 for a determination of his citizenship. Section 9(1) says a citizen who acquired another country's citizenship between 26 January 1950 and the commencement of the Act ceased to be a citizen. He was a citizen at the commencement of the Constitution and was told to leave for holding a Pakistani passport. The question was entirely different. (para 12)
3. Noted: In Kedar Pandey v. Narain Bikram Sah, this Court concluded that the animus manendi was proved in the High Court's finding. Narain Bikram Sah had extensive properties in India, and his litigation reached the High Courts and the Privy Council. He was born at Banaras, married there, brought up his children in India and produced an Indian passport. (para 12)
4. Held: Here counsel could not point to a single piece of evidence supporting the petitioners' case. They chose to remain on foreign passports with permission of the Indian authorities, so their claim must be rejected. (para 12)

Rights of a foreigner and expulsion

1. Held: The argument that foreigners also enjoy some fundamental rights is of not much help to the petitioners. (para 13)
2. Held: The fundamental right of a foreigner is confined to Article 21, life and liberty. It does not include the right to reside and settle in India under Article 19(1)(e), which applies only to citizens. (para 13)
3. Noted: The Constitution Bench in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta ([1955] 1 SCR 1284) held that "the power of the Government in India to expel foreigners is absolute and unlimited". No provision of the Constitution fetters this discretion. (para 13)
4. Noted: The legal position differs across countries, but in India the Executive Government has an unrestricted right to expel a foreigner. (para 13)
5. Held: On the right to be heard, there is no hard and fast rule about how a person must be given an opportunity to put his case. It is not claimed that a notice would have let the petitioners produce material supporting citizenship, which they failed to produce without notice. (para 13)
6. Held: The argument that the Superintendent of Police was not authorised to order deportation has no merit. The order was not passed by the Superintendent. It was the decision of the Central Government, executed by the Superintendent, as the order itself shows. (para 14)
7. Held: The petitions have no merit and are dismissed, without costs. (para 15)

Authorities

• Central Bank of India v. Ram Narain ([1955] 1 SCR 697): intention to reside for ever is essential to domicile; domicile of origin is retained until a domicile of choice is acquired. Relied on (para 9).
• Halsbury's Laws of England, 4th Edn., Vol. 8: the concept of domicile. Referred to (para 9).
• Mohd. Ayub Khan v. Commissioner of Police, Madras and Another ([1965] 2 SCR 884): a case under Section 9(2) of the Citizenship Act; a different question. Distinguished (paras 7, 12).
• Kedar Pandey v. Narain Bikram Sah ([1965] 3 SCR 793): animus manendi proved on strong facts. Distinguished (paras 7, 12).
• Union of India v. Ghaus Mohammed ([1962] 1 SCR 744): cited by the petitioners for a proceeding under Section 9 of the Foreigners Act. Referred to (para 7).
• Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors. ([1955] 1 SCR 1284): the Government's power to expel foreigners is absolute and unlimited. Relied on (para 13).
• Names as spelt in the source text: Mr. Louis De Raedt & Ors vs Union Of India And Ors (the case title); Mohd. Ayub Khan v. Commissioner of Police, Madras and Another; Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Ors.

Provisions mentioned

• Article 5, Constitution: citizenship at the commencement of the Constitution for a person domiciled in India who was born in India, had a parent born in India, or was ordinarily resident for five years before (para 4).
• Article 19(1)(e) and Article 21, Constitution: the right of citizens to reside and settle in India; the right to life and liberty, available to foreigners (para 13).
• Article 32, Constitution: the writ remedy under which the petitions were filed (para 1).
• Section 3(2)(c) and Section 9, Foreigners Act, 1946: the petitioners argued that the power under Section 3(2)(c) could not be used without Rules (para 2), and that a proceeding under Section 9 should have been started in which they could defend (para 7). The Court does not decide either point separately.
• Section 6 and the Third Schedule, Citizenship Act, 1955: mentioned in the headnote only, and not discussed in the judgment text.
• Section 9(1) and Section 9(2), Indian Citizenship Act, 1955: loss of citizenship on acquiring another country's citizenship, and the authority to decide (para 12).

Judgement

1. The writ petitions (Writ Petition (Civil) No. 1410 of 1987, Writ Petition (Criminal) No. 528 of 1987 and Writ Petition (Civil) No. 1372 of 1987) are dismissed (para 15).
2. There is no order as to costs (para 15).

Legal Principle / Ratio

A person acquires a domicile of choice only with the intention to stay permanently, and the burden of proving it lies on him. A foreigner has no right to reside under Article 19(1)(e), and the Executive may expel him. The Court applied the rule in Hans Muller that "the power of the Government in India to expel foreigners is absolute and unlimited".

Critical Analysis

Analysis based on the judgment text.

The finding on domicile rested on the petitioners' own applications. The Court relied on their applications for permit extensions and naturalisation. The judgment does not examine other evidence of settlement.

The right to a hearing was left flexible. The Court says there is no hard and fast rule, and that no material was claimed that a notice could have produced. It does not say whether a hearing is needed in other cases.

The Court relied on a 1955 Constitution Bench for the power to expel. It did not examine Article 21 in relation to expulsion beyond saying a foreigner has that right.

Significance

• The Court explained domicile of origin and domicile of choice, and the need for animus manendi.
• It held that residence alone does not confer citizenship under Article 5, and put the burden on the claimant.
• It held that a foreigner's fundamental right is confined to Article 21 and does not include Article 19(1)(e).
• It confirmed that the Government's power to expel foreigners is absolute.

Exam-Important Points

• Facts in one line: missionaries in India for decades on foreign passports claimed citizenship under Article 5(c). The Court held they had no domicile and could be expelled.
• Rule: domicile of choice needs animus manendi, and the burden is on the person claiming it.
• Rule: a foreigner has Article 21 but not Article 19(1)(e).
• Trap: a stay of more than five years before the Constitution does not give citizenship without domicile.
• Trap: the order of the Superintendent of Police was the Central Government's decision, so it was valid.
• Costs: none.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.