A citizenship question

Published : Sep 29, 2001 00:00 IST

The Supreme Court dismisses two election petitions which base themselves on a challenge of the Indian citizenship status of Sonia Gandhi, citing deficiency in pleadings.

EVER since Congress(I) president Sonia Gandhi signalled some years ago her intention to enter electoral politics, her political adversaries have raised constitutional and legal questions with regard to her very right to claim Indian citizenship, and her eligibility to become a Member of Parliament or be chosen for political office. Sonia Gandhi was first elected to the Lok Sabha from two seats - Amethi in Uttar Pradesh and Bellary in Karnataka - in the 13th Lok Sabha elections held in 1999. She relinquished the Bellary seat.

Three election petitions were filed in the Allahabad High Court challenging her election on the grounds that she, being an Italian citizen, did not satisfy the prerequisites for registration as a citizen of India. Of the three petitions, two were filed by candidates who had lost in Amethi in 1999: Hari Shanker Jain and Hari Krishna Lal. The third petition was filed by Prem Lal Patel, a voter in Amethi. The Lucknow Bench of the Allahabad High Court which heard the petitions, had held that none of the three petitions disclosed any cause of action or triable issue and as such none was maintainable under Section 86 of the Representation of the People Act, 1951, dealing with the trial of election petitions.

Jain had also challenged the legality of Section 5(1)(c) of the Citizenship Act, 1955, under which Sonia Gandhi acquired her Indian citizenship through registration. Under this provision, persons who are, or have been married to, citizens of India and are ordinarily resident in India and have been so resident for a period of 12 months immediately before making an application for registration, would be eligible to apply for Indian citizenship by means of registration. (This provision was amended in 1986 whereby the requirement regarding the length of residence was made five years.) Based on her application under this Section, she was issued a certificate of citizenship by the Government of India on April 30, 1983.

The Allahabad High Court dismissed the petitions on May 20, 2000 on the plea that a challenge relating to citizenship or the constitutionality of the Citizenship Act itself could not be adjudicated upon by the High Court in the course of considering an election petition. The High Court also held that the citizenship certificate granted to Sonia Gandhi was final and binding, and unless it was cancelled by the Central government the issue could not be questioned as part of an election petition.

Jain and Lal appealed against the High Court verdict in the Supreme Court. The Supreme Court Bench consisting of Chief Justice A.S. Anand, Justices R.C. Lahoti and Doraiswamy Raju, in its order of September 12, rejected the High Court judgment that an election petition could not challenge a citizenship certificate or the constitutionality of the Citizenship Act. However, the Bench dismissed the appeals because the petitions made only bald and vague averments about Sonia Gandhi's eligibility for Indian citizenship, and therefore, did not satisfy the requirements of pleading material facts under Section 83(1)(a) of RPA, 1951.

Article 84 of the Constitution says that a person shall not be qualified to be chosen to fill a seat in Parliament unless he or she is a citizen of India. Article 102 provides that a person shall be disqualified from being chosen as, and for being, a member of either House if he or she is not a citizen of India or has voluntarily acquired the citizenship of a foreign state, or is under any acknowledgement of allegiance or adherence to a foreign state. That a returned candidate was 'not qualified' or 'was disqualified' to be chosen on the date of his election, is specifically a ground for declaring his/her election void under Section 100(1)(a) of RPA, 1951. Section 16 of RPA, 1950 provides that a person shall be disqualified for registration in an electoral roll if he or she is not a citizen of India.

Therefore, the objections against Sonia Gandhi's citizenship have to be objectively examined. The petitions challenging Sonia Gandhi's election from Amethi had averred that she could not have renounced the Italian citizenship and become a citizen of India when she applied for and was issued a certificate of citizenship under Section 5(1)(c) of the Citizenship Act. However, the petitioners did not give indications of any such clause in the Italian law on which they had based their averments.

Gourab K. Banerji, counsel for Sonia Gandhi, told Frontline that a new Italian Citizenship Act which came into force on August 15, 1992, allows for, in principle, multiple citizenship. This was previously possible only in specific cases. Thus, before August 15, 1992, when an Italian citizen acquired another citizenship he/she automatically lost the Italian citizenship. Indeed, according to the new Citizenship Act, a person can lose Italian citizenship only by formally renouncing it, on condition that one has another citizenship. To renounce citizenship, one must sign a formal statement at the Consulate. According to the 'Information on Citizenship', released by the Consulate General of Italy, an Italian citizen who acquired the citizenship of another country before August 15, 1992 has, in all likelihood, lost Italian citizenship and, unless he/she applies for re-acquisition, is to be considered by Italy as a foreigner.

Sonia Gandhi applied for Indian citizenship by registration, under Section 5(1)(c) of the Citizenship Act, on April 7, 1983 by virtue of her marriage to Rajiv Gandhi in 1968. She voluntarily renounced her Italian citizenship by surrendering her Italian passport to the Italian Embassy in New Delhi on April 27, 1983. This, says Janata Party president, Dr. Subramanian Swamy (who has also been raising questions with regard to Sonia Gandhi's citizenship), had been confirmed by the then Italian Ambassador to India on April 29. The Ambassador had apparently stated that Sonia Gandhi had returned her Italian passport by claiming that she had renounced her Italian citizenship. Even if Subramanian Swamy's argument - that surrendering the passport would not legally amount to renunciation of citizenship - is conceded, Sonia Gandhi would have lost her Italian citizenship on April 30, 1983 when she acquired Indian citizenship by registration. (This writer had stated erroneously in Frontline, June 18, 1999 on page 30, that she became an Indian citizen by naturalisation on April 13, 1983.) Item 10 of Form II (before it was revised in 2000), which is used as an application for registration as a citizen of India under Section 5(1)(c) of the Citizenship Act, only required an undertaking from the applicant that she would renounce the citizenship of her country in the event of her application being sanctioned, while Item 9 of the form gave the applicant an option to state whether she had renounced or lost the citizenship of the other country. Indeed, the form as it stands today, after revision in 2000, seems more liberal, as it retains only Item 10 (now renumbered 11).

More important, it was not necessary - as her critics would seem to imply - that Sonia Gandhi should have resided in India for a continuous period of 12 months before registration as a citizen of India in 1983. The Explanation to Rule 4 of Citizenship Rules, 1956, which deals with the form of application for registration under Section 5(1)(c) makes the point that in computing the period of 12 months (now five years), broken periods of residence may be taken into account.

The petitions have also alleged that Sonia Gandhi's name was wrongly entered in the voters' list - an argument that could not be sustained in the face of the citizenship certificate secured by her in 1983. It is true that her name figured in the electoral roll of the New Delhi Lok Sabha constituency in 1980, and that it was deleted only after an expose by the media. However, in the absence of any proof that she had exercised her franchise before acquiring her citizenship, the inclusion of her name in the voters' list in 1980 could be explained away as an inadvertent entry made by some overzealous enumerators then working under the Election Commission.

A major part of the election petitions against Sonia Gandhi contended that in the constitutional scheme of citizenship a distinction has been drawn between 'citizen of India' and being an 'Indian citizen', restricting electoral rights only to the former, in whom the citizenship vests by right, that is, by birth or by descent. Thus while Articles 5 to 10 use the expression 'Citizen of India', Article 11 which empowers Parliament to make laws with respect to the acquisition and termination of citizenship and all other matters relating to citizenship speaks of 'citizenship' and not of 'citizenship of India', the petitioners argued. They, therefore, suggested that the Citizenship Act, 1955 wrongfully confers the privileges of citizens of India on Indian citizens.

The Bench appreciated the forensic ability of the petitioners in making such a plea, but refused to entertain or adjudicate it for two reasons. First, the petitioners had not stated all material facts to enable the court to examine such a plea with far-reaching implications. Secondly, the challenge so sought to be laid to the constitutional validity of the provisions of the Citizenship Act is very wide and cannot be adjudicated upon without impleading the Central government as a party to the proceedings. In other words, the issue cannot be conveniently tried in an election petition on the basis of vague and indefinite pleas. A serious legal challenge to Sonia Gandhi's citizenship, it appears, is yet to emerge.

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