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High Court Of Delhi
KAILASH GAMBHIR
RASHTRIYA MUKTI MORCHA - Appellant
Versus
UNION OF INDIA - Respondents
CM 9837 Of 2005
Decided On : 11/24/2006
Whether a non-naturally born citizen can hold an elective office or any public office. Whether the concept of citizenship is a foundational preamble of any social politically organised society. Whether the natural born was added later in the American constitution as Baron Von Steuben who was a Prussian soldier, would have contested for the President's election as Benjamin Franklin was impressed by his military talents and introduced his name to George Washington who was then leading the American War of Independence. Whether the citizenship law of India entered the primitive stage when the invaders conquered the various small kingdoms ruling small territories, and succumbed to larger organized forces of the foreign invaders. Whether the stage of equity could by a long rope be reckoned with the era of being subjects of the Crown and the stage of maturity came when India was divided and became Bharat when it wrested freedom from British tutelage and on the basis of the fifth stage it was contended that the stage has arrived to ponder over it because if a foreign born person is allowed to occupy the highest position in executive or any political office throughout the world and in their laws they have ensured that no person of foreign origin is allowed to be entrusted with State's executive authority.
Fact of the Case:
None
Finding of the Court:
None
Issues: 1. Whether Article 5 of the Constitution was not for transitory period and will override the provisions of Article 11 and other statutes concerning citizenship, 2. Whether Article 11 of the Constitution and provisions contained in Representation of People Acts and Citizenship Act have to be read in conjunction with Article 5 of the Constitution, 3. Whether article 5 of the Constitution is the authority under which a citizen has political and civic rights and Citizenship Act enacted pursuant to Article 11 of the Constitution, citizens only have civic rights and no political rights and 4. Whether this Court should interpret the aforesaid provision of the constitution so as to hold that the scheme of our Constitution and the laws made thereunder with regard to the citizenship of a foreign born person who has acquired citizenship of India pursuant to provision of Citizenship Act is not entitled to hold either an executive or a public office.
Ratio Decidendi: 1. Article 5 of the Constitution of India will hold the field for all times to come and all other provisions in the constitution of India or any statute enacted pursuant to Article 11 of the constitution of India shall not be read in derogation of Article 5 of the constitution of India. If such an interpretation is given, it will nullify, make the provision of Article 11 of the Constitution of India redundant and nonest. 2. The Citizenship Act was amended from time to time keeping in view the ground realities and the need of change. Parliament responded by amending citizenship Act from 1955 till latest amendment came in force in 2005. Parliament having amended the Citizenship Act in last half a century several times and not incorporating a prohibition making a distinction in relation to a right of a citizen to exercise civic or political rights, can this court in its jurisdiction to interpret the provisions of the Constitution and the Statute relating to Citizenship Act do so" The answer is in the negative. 3. Parliament in its wisdom has enacted by the amending Act of 2003. Sub-section (2)of Section 7b specifically put a rider to such overseas citizens of India that they shall not be entitled to the rights conferred on a citizen of India ordinarily such as under Article 16 of the Constitution with regard to the equality of opportunity in matters of public employment and prohibited such class of citizen from being elected as a President, Vice-President, Judge of supreme Court, or appointed Judge of High Court and cannot be registered as a voter under the Representation of People Act, 1950 and cannot be eligible for being a member of House of Parliament, or Council of State or a member of the legislative Assembly or Legislative Council. Such citizen cannot be appointed to public services and posts in connection with the affairs of the Union or of any State except for appointment in such services and posts as the Central government may by special order in this behalf specify. 4. The questions as formulated above has to be answered in the negative.
Final Decision: The petition is dismissed.
VIJENDER JAIN, ACJ.
( 1 ) THIS writ petition was filed in the year 1999 with the following prayers :-" (i) the President had no discretion in the matter and he should have invited the acknowledged leader of Opposition in Lok Sabha during the process of consultation and not a person who was not the elected member of the House; (ii) the disregard to the well established Constitutional Convention has hurt the basic structure of the Constitution; (iii) no person who is not a citizen within meaning of Article 5 of the constitution has the right to be elected or appointed to any public office under the Constitution; (iv) the recognition granted by the Election Commission under Section 29a of the Representation of People Act, 1951 is limited by the Constitution to only to such political party/parties which has/have as its/their office bearers citizens who come within meaning of Article 5 of the Constitution; (v) no person who does not satisfy the requirements of Article 5 can be appointed in the Union/state Council of Ministers. "
( 2 ) HOWEVER, as prayers (i) and (ii) no longer survive the petitioner is insisting on prayers (iii), (iv) and (v) of the writ petition. Mr. P. N. Lekhi, learned senior advocate for the petitioner has very forcefully argued the matter confining himself to prayers (iii), (iv) and (v)of the writ petition. Before hearing the present matter, counsel from both the sides had agreed that they would address arguments not targeting any particular individual be it the President of the ruling party in power or anybody else. Earlier the petitioner had sought direction for impleadment of Smt. Sonia gandhi as respondent no. 3 and Indian National Congress as respondent no. 4 and the said application was dismissed after Mr. Lekhi had contended that the issues raised by him in the petition concerns the matter in general and not against particular individual or particular political party as regards the controversy raised in the petition whether a non-naturally born citizen can hold an elective office or any public office. It would be relevant to reproduce the order passed by this Court on 16. 5. 2006 in CM 6057/2004 through which the impleadment of Smt. Sonia Gandhi and Indian National Congress was sought :-"this application was filed by the petitioner/applicant, inter alia, seeking direction for impleadment of Smt. Sonia Gandhi as respondent no. 3 and indian National Congress as respondent no. 4. Mr. Lekhi has contended that he is contending as a general proposition in public domain with regard to the efficacy of a non-naturally born citizen holding an office in the Government or as an office bearer of a political party, which has been recognised pursuant to the 10th Schedule of the Constitution and Section 29-A of the Representative of people Act. In view of the submission of learned counsel for the petitioner/applicant there is no need for any individual or a particular political party to be impleaded as a respondent in the writ petition. Therefore, this application is dismissed. "
( 3 ) MR. LEKHI has addressed the arguments firstly by giving introduction and history of the concept of citizenship by referring to the debates in the constituent Assembly, various foreign Constitutions, colonial legacy, speeches made by the members of the Constituent Assembly, extracts from various authoritative books etc. After the introduction Mr. Lekhi delved his arguments on the basic and fundamental issue raised by him that the natural born citizens of the country are only entitled to hold political or public office and thirdly he delved his arguments on interpretation of Article 5, Article 11 and 10th schedule of the Constitution, various provisions of the Citizenship Act, provisions of Representation of People Act, Election Symbol Allotment order and other related issues.
( 4 ) THE contention of Mr. Lekhi is that the concept of citizenship is a foundational preamble of any social politically organised society because the fundamental
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