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IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY KAROL, S. KUMAR, JJ.
Kiran Gupta – Appellant
Versus
The State Election Commission through the Secretary and Others – Respondents
Letters Patent Appeal No. 139 of 2020, Civil Writ Jurisdiction Case No. 19109 of 2019
Decided On : 12-10-2020
Bihar Panchayat Raj Act, 2006 – Section 136(1) – Citizenship Act, 1955 – Sections 3 and 4 – Constitution of India – Articles 10, 11 and 243F – Power of Election Commission to set aside appellant's election under Section 136(1) on the ground of her not being an Indian citizen – State Election Commission was empowered to set aside appellant's election under Section 136 (1) of Panchayat Act – Appellant herself acknowledged that she was born and raised in Nepal before her marriage and was not an Indian citizen by birth or descent under Sections 3 and 4 of Citizenship Act, 1955 – Based on facts admitted by appellant herself, State Election Commission was empowered to set aside her election as Mukhiya – Appellant failed to follow procedure as set out in Citizenship Act – Considered thus, neither under Indian Constitution nor Laws framed thereunder, any right of Citizenship can be said to have conferred upon her – However, Court is not permitted to direct Central Government to grant petitioner Indian citizenship – This would impinge upon Executive's functions – However, in light of peculiar situation of petitioner; her ordinary residence and family life in India; and India's international law obligations to prevent statelessness, upon receipt of petitioner's application, appropriate authority may consider her application expeditiously. (Paras 9, 32, 68 and 70)
Citizenship Act, 1955 – Sections 3 and 4 – Indian citizenship – It is not that anyone or everyone (person) can, as a matter of right, claim Citizenship of India – Power and discretion of conferring citizenship vests with Central Government which, of course, has to be exercised as per settled principles of Law – Unless decided, mere filing of application does not confer any right of Citizenship – Indian citizens can marry a foreign national under Special Marriage Act 1954 – Foreign national does not become an Indian citizen on marriage with a citizen under the Act – After marriage, foreign national has an option to get registered as an Indian citizen – Even then, person must fulfil requirement of residency before they can apply for Indian Citizenship – Mere relinquishment of original Citizenship cannot be perceived as an intent of seeking Indian Citizenship – Citizenship Act does not provide for a scenario where a person residing in India, upon relinquishing her/his original Citizenship is automatically considered to be a citizen of India – Possibility of a person, though not appellant, migrating to a third country cannot be ruled out – As such, continuous and uninterrupted stay in India cannot be a factor determining, in anticipation, of a person choosing to exercise right seeking Citizenship under Citizenship Act. (Paras 29, 30 and 31)
Citizenship Act, 1955 – Sections 3 and 4 – Adhaar Act, 2016 – Section 9 – Indian citizenship – Mere registration of a person's name in voter list, ipso facto, does not confer Citizenship – Voter identity card and name on voter list would not be proof of Citizenship – Purpose of PAN card is to facilitate payment of taxes to Indian State, which foreigners may also be required to pay – Appellant cannot rely on her PAN card and Aadhaar Card as proof of Indian Citizenship – Citizenship is not a criterion for having a bank account in India – Appellant could not adduce any additional evidence to establish her claim to Indian Citizenship arising from these documents. (Paras 40, 41, 43, 47, 49 and 50)
JUDGMENT :
SANJAY KAROL, J.
1. The primary issue for consideration before this Court is whether the appellant is a citizen of India or not.
2. Elaborately, the following issues arise for considerations in this appeal:
(i) Was the State Election Commission empowered to set aside the appellant’s election under Section 136(1) of the Bihar Panchayat Raj Act, 2006 on the ground of her not being an Indian citizen?
(ii) Whether voluntarily relinquishing Citizenship of Nepal confers any right of Indian Citizenship upon the appellant?
(iii) Can the appellant's voter ID Card; PAN Card; Aadhaar Card; acquiring education or immovable property in India; having a Bank Account, function as proof of Indian Citizenship?
(iv) Whether the appellant was disqualified from being elected to or function as Mukhiya of the Gram Panchayat in Bihar?
(v) Can the appellant’s status of Statelessness be remedied as per Indian Law?
3. The present appeal arises from an order and judgment of the learned Single Judge dated January 21, 2020, by which the appellant's writ petition assailing the order of the State Election Commission dated August 30, 2019, stands dismissed. The appellant's election is set aside on the ground of disqualification contained under sub-section 1(a) of Section 136 of the Bihar Panchayat Raj Act, 2006.
4. The appellant, Kiran Gupta, was born and brought up in Nepal. On 18th June 2003, she solemnized her marriage with Ashok Prasad Gupta and after that started permanently residing with him in India as his wife. It is not in dispute that after her marriage, she, (a) got her name entered into the voters list prepared in the year 2008 for elections to the Assembly of Bihar; (b) in her name she has (i) an account with a bank in India, (ii) a Pan Card issued by the Income Tax Department and (iii) an Aadhaar Card; (c) names of her children born out of the wedlock are registered in India under the Registration of Births and Deaths Act, 1969 and the respective Rules framed thereunder; (d) pursued her higher education in India; (e) purchased an immovable property in India, vide sale deed dated 12th December 2017. The sale stands recorded with an entry of mutation in her name for which also she paid fee/rent to the Government of Bihar and (g) relinquished her Nepali Citizenship on February 24, 2016.
5. The issue of her nationality became the subject matter of challenge in the year 2018 after she was elected as a Mukhiya of Gram Panchayat, ManikChouk, Block-Runnisaidpur, District-Sitamarhi.
6. Ranjit Kumar Rai @ Ranjit Rai, (private respondent No. 8) challenged her election on the ground of disqualification which she entailed under sub-section 1(a) of Section 136 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as ‘the Panchayat Act’).
7. Vide order dated 30thAugust 2019, the competent authority, i.e. The State Election Commission, set aside her election, which action she challenged by way of a writ petition filed under Articles 226 and 227 of the Constitution of India. The learned Single Judge, vide impugned judgment 21st January 2020, passed in CWJC No. 19109 of 2019 titled Kiran Gupta vs. State Election Commission and Others, dismissed her petition by relying upon the provisions of Articles 173 and 243F of the Constitution of India and the Indian Citizenship Act, 1955.The Court held the appellant to have voluntarily relinquished her Citizenship of Nepal on February 24, 2016, and as such not being a citizen of India, entailed disqualification under the Panchayat Act.
8. We have heard learned counsel for the parties.
9. The Issue No. (i) is well settled. The State Election Commission was empowered to set aside the appellant’s election under Section 136 (1) of the Panchayat Act. The decision rendered by this Court in Dhanwanti Devi vs. The State Election Commission, 2012 (1) PLJR 296, relied upon by the appellant, does not apply in the given facts. The appellant herself acknowledged that she was born and raised in Nepal before her marriage in 2003, and
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