Case Commentary
Louis De Raedt v Union of India
Introduction
The conferment of the Right to Citizenship in India is based on Articles 5-11 (Part II) of the
Constitution of India. According to the provisions of Article 5, everyone who was born in India
prior to 26 January, 1949, the day the Constitution of India was enacted- shall be conferred
Indian citizenship. However, Article 9 of the Constitution states that any person, who at their
free will, acquires the citizenship of another nation apart from India; ceases to be an Indian
citizen. In the present case, the Supreme Court of India’s Division Bench (consisting of L.M.
Sharma, J & J.S. Verma, J) decided upon whether three foreign nationals can be granted Indian
citizenship on the basis of their stay in India prior to independence.
Brief Facts
The Petitioners in the present case (Mr Louis De Raedt, Mr B.E. Getter and his wife, S.J. Getter) came
to India on Belgian and American Passports in 1937 and 1938, respectively. All of them were
missionaries and had filed two separate petitions against the Supreme Court’s order dated 8
July 1987, which had rejected their prayer requesting for an extension of their stay in India
and they were asked to leave the country by 31 st July, 1987. The Court later clubbed the two
separate petitions as the fact were quite similar.
Submissions by the Counsel for the Petitioner
The Counsel appearing for Mr De Raedt submitted that he had been residing in India continuously
since 1937 and had only left the nation twice, in 1966 and 1973, for two short visits to
Belgium. It was also submitted before the Court that at the time of independence, appropriate
orders were passed in order to allow Christian Missionaries to reside in India on a permanent
basis. However, as Mr De Raedt was serving in a remote Adivasi region in Bihar during that
period, he could not apply and procure his permit on time. The Counsel also submitted that
the power to expel foreigners under S. 3(2)(c) of the Foreigners Act could not be exercised as
the relevant Rules under the Act (at that point in time) had not been framed. The Counsel also
argued that any powers exercised under the Act must be in accordance with the principles of
natural justice, particularly audi alteram partem and thus the order dated 31 July, 1987 must
be quashed and set aside.
The Counsel further submitted that the fact that the Petitioner had been residing in India since 1937
and had only visited Belgium twice, that too for short visits, constituted sufficient proof of the
fact that he had acquired Indian domicile and that his case should not be dismissed solely on
the ground that he holds a foreign passport. It was further submitted that Article 5(c) of the
Constitution of India had conferred citizenship on all the Petitioners on 26 November 1949.
Moreover, none of the Petitioners should be expelled on a ‘mere suspicion’ of being a
foreigner as they are also entitled to certain fundamental rights under the Constitution of
India (Section 6 of the Citizenship Act, 1955 was given a lot of importance by the Counsels in
the context of this argument).
Lastly, the Counsel submitted that the concerned police official (in this case, the Superintendent of
Police) who signed the impugned order containing immediate instructions for the deportation
of the Petitioner (Mr De Raedt) did not possess the powers to do so, in the first place.
Submissions by the Counsels for the Respondent
The Counsels for the respondent argued that none of the Petitioners possessed any intention to
permanently reside in India and are, thus, not in possession of the animus manendi required
in order to acquire Indian domicile and that mere residence, devoid of animus manendi, is
insufficient to prove domicile. In addition to the same, the rights claimed by the Petitioners
under Art 19(1)(e) of the Constitution of India cannot be conferred upon them as they are all
foreigners and that their fundamental rights are constricted to those under the ambit of
Article 21. The Counsels also argued that the impugned order was passed in a procedurally
correct manner as the decision to expel the Petitioner (Mr De Raedt) was that of the
Government of India and the concerned police official was merely doing his duty by executing
it.
The Decision of the Supreme Court
In a nutshell, the Supreme Court considered 3 main questions:
(i) Are Mr De Raedt and Mr and Ms Getter entitled to claim Indian citizenship under the provisions
of Article 5(c) of the Constitution of India?
(ii) Did the Petitioners possess Indian domicile as of 26 November 1949?
(iii) Did the Petitioners possess the requisite animus manendi to reside in India as of 26 November
1949?
The Supreme Court ruled in favour of the respondents and dismissed the Petition, without any order
as to costs. The Court noted that Indian citizenship can only be guaranteed to those who were born on
Indian territory or those who were ordinarily resident in India for at least 5 years prior to the
commencement of the Constitution of India. As Mr De Raedt and Mr and Ms Getter were Christian
Missionaries who had temporarily emigrated to India in order to pursue their work, they did not
possess any intention to reside in the nation on a permanent basis and thus, did not possess the
requisite animus manendi to acquire Indian domicile (and consequently, Indian citizenship) at any
point in time.
