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R. Venkateshwara Rao Vs. Union of India and Others - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWP No. 12998 of 1998
Judge
Reported in1999(3)ALD407; 1999(3)ALT351
ActsCitizenships Act, 1955 - Sections 5(1) and 6; Constitution of India - Articles 5 to 11, 12, 51-A and 102(1); Constitution of India (Amendment), 1976
AppellantR. Venkateshwara Rao
RespondentUnion of India and Others
Appellant Advocate Mr. V. Hanumanth Rao, Adv.
Respondent Advocate Adv. General, ;Mr. B. Adinarayana Rao and ;Mr. B. Hanumanth Rao, Advs.
Excerpt:
.....of india are prevented by law or practice of that country from becoming subjects or citizens of that country by naturalisation, can be naturalised as indian citizens......between the provisions of sections 5(j)(c) and section 6 of the act and article 11 of the indian constitution and conditions which can be imposed by the government while conferring citizenship either by marriage or by naturalisation are only enabling provisions-and it is not necessary that a particular conditions can be imposed and such condition/ s can be imposed only in exigencies and that provisions contained under section 5(1)(c) and section 6 of the act are not ultra vires the constitution.6. mr. b. ilamtinatitha rao, who has filed impleadment petition on behalf of one mr. anand and which petition was ordered and who is arrayed as 10th respondent, submits that the 8th respondent having married to an indian national 30 years back and having been residing in india since 30.....
Judgment:
ORDER

B. Subhashan Reddy, J.

1. Inthis pro bono publico writ petition, the constitutional validity of Section 5(1)(c) as also Section 6 of the Citizenship Act, 1955 (Central Act 57 of 1955) (hereinafter referred to as 'the Act') is questioned. Consequential declaration sought for is that no person of foreign origin including Mrs. Sonia Gandhi - 8th respondent herein - with citizenship either by registration or by naturalisation is competent or eligible to become Member of either House of Parliament, the Prime Minister of India or the President of India.

2. Mr. R. Venkateswara Rao, a businessman of Hyderabad, filed an affidavit in support of the relief sought for. He pleads that the scheme of Constitution of India does not envisage conferment of citizenship on any foreigner and Part II of the Constitution of India dealing with citizenship employs the meaning that it never intended to grant citizenship to foreigner and that indeed, the paramount intention is to guard this country from alien invasion or interference. Alternate contention is, even assuming that citizenship can be granted to any foreign national, there should have been a condition imposed, rendering such person ineligible to become Member of Parliament, Prime Minister or President of India. This averment is specifically made against the 8th respondent stating that in view of the political situation in the country, the 8th respondent is making a move to become the Prime Minister of India. The purport of the affidavit, concisely speaking, is that only Indian by birth can feel real sense of patriotism towards this country and that he/she alone shall be eligible to become the Prime Minister and any Acts by which a person of foreign origin is facilitated to become a Member of Parliament or Prime Minister or President of India, will be detrimental to the freedom, sovereignty, unity and integrity of India. The petitioner states that 8th respondent being of foreign origin Italy, cannot be permitted to know the secrets which a Prime Minister is bound to know inthe course of discharge of duties and such conferment of right to know the secrets of this country is detrimental to the security of this country. Several other factors are stated regarding the past, i.e., the foreign invasion and the struggle and sacrifice for the independence and that the same will become fruitless, if 8th respondent is permitted to become the Prime Minister.

3. Basing upon the above pleas, Mr. V. Hanumantha Rao, the learned Counsel appearing for the petitioner, submits that the above provisions of the Citizenship Act are ultra vires the Constitution of India and that they should be struck down. Alternatively, he pleads that even if citizenship has been granted to the 8(h respondent, it ought to have been hedged with conditions including that of prohibition of contesting any election or to hold any post including that of Prime Minister of India. His submission is that Article 11 of the Constitution cannot be stretched to grant a citizenship to any foreigner on marriage to an Indian with ail rights, but such marriage can only enable the said person to stay in India along with the spouse and not for any purpose beyond that. He also contended that the 8th respondent was a citizen of Italy and as such, she is under acknowledgment allegiance and adherence to Italy and as such, she is disqualified for being chosen as a Member of either house of Parliament and consequently cannot become the Prime Minister. He took us to the definitions and meaning above words and referred to Black's Dictionary and took us to some of the provisions of the Constitutions of other countries. He also cites Article 51A (b) and (c) of our Constitution slating that every citizen has got fundamental duties to cherish and follow the noble ideals which inspired our national struggle for freedom and to uphold and protect the sovereignly, unity and integrity of India and that the said constitutional provisions mandate every citizen including this Court to follow the same by preventing the 8th respondent from becoming the Prime Minister and that,as otherwise, me said provisions would become redundant and oliose.

4. Countering the above arguments. Mr. V, Venkataramanaiah, the learned Advocate General, appearing for the State submits that there is no substance in the argument of the learned Counsel for the petitioner for the reason that the 8th respondent is a citizen of India having been conferred with the same several years back, that as her citizenship is in force as on today and has not been terminated, there is no bar for her to hold any political post or to contest for Membership of Parliament, and that there need not be any reciprocity for conferring citizenship and what condition should be imposed rests upon the Citizenship Act enacted by the Parliament.

5. Mr. B. Adinarayana Rao, the learned Standing Counsel for Central Government, submits that there is no repugnancy between the provisions of Sections 5(j)(c) and Section 6 of the Act and Article 11 of the Indian Constitution and conditions which can be imposed by the Government while conferring citizenship either by marriage or by naturalisation are only enabling provisions-and it is not necessary that a particular conditions can be imposed and such condition/ s can be imposed only in exigencies and that provisions contained under Section 5(1)(c) and Section 6 of the Act are not ultra vires the Constitution.

6. Mr. B. Ilamtinatitha Rao, who has filed impleadment petition on behalf of one Mr. Anand and which petition was ordered and who is arrayed as 10th respondent, submits that the 8th respondent having married to an Indian National 30 years back and having been residing in India since 30 years continuously and acquiring citizenship and still continuing as an Indian citizen even after becoming widow, has emerged a popular political leader and nothing can be said against her so as to say that she is not entitled to hold the high office of the Prime Minister and thattlie petition lacks bona fides and that the petition is premature because the 8th respondent is yet to become the Prime Minister and that it is also hit by laches for the reason that the 8th respondent had acquired citizenship years back and that this writ petition is an after-thought to stall the 8th respondent from becoming the Prime Minister and that the writ petition is liable to be dismissed.

7. At the outset, we reject the argument of the learned Counsel for the petitioner that no citizenship can be conferred on a foreigner. Conferring of citizenship rights on foreigners is not a strange phenomenon. Several countries have got their Constitutions permitting conferment of citizenship by marriage/naturalisation. Conditions may be different, but provisions do exist in almost all the Constitutions in the world enabling the respective countries to grant citizenship by marriage/naturalisation.

8. Part II of the Indian Constitution comprising Articles 5 to 11 deals with citizenship. While Articles to 8 state as to who are the citizens as on the date of commencement of the Constitution, Article 10 recognises their right to continue as such, subject to such law as may be enacted under Article 11. Article 11 is the enabling provision, which reads 'Nothing in the foregoing provisions of this part shall derogate from the power to Parliament to make any provision with respeci to the acquisition and termination of citizenship and all other matters relating to citizenship'. As such, it is clear that the Constitution of India does not intend to lay down a permanent or comprehensive taw relating to citizenship of India. The power to enact such law is left to the Parliament by the above Article. The Citizenship Act, 1955 was thus enacted by Parliament pursuant to Article 11 read with Item-17 of List I of Schedule VII of Constitution making elaborate provisions for the acquisition and termination of the citizenship subsequent to the commencement of the Constitution. Thispower of the Parliament is not fettered by any of the provisions of Constitution of India.

9. We, now deal with the other contention of Mr. V. Hanumantha Rao, the learned Counsel for the petitioner, that even if our constitutional scheme does not bar the conferment of the citizenship on a foreign national on compliance of conditions enumerated in the Citizenship Act, our constitutional scheme read as a whole in general and Article 51A (b) and (c) read with Article 102(1)(d) in particular do not envisage an Indian citizen of foreign origin to hold any political post, be it of a Parliamentarian, Prime Minister, Vice President, President of India or otherwise. He tries to build up his argument on the basis of Constitution (Forty-Second Amendment) Act, 1976, which came into force from 3-1-1977. His stress is on fundamental duties enumerated in Article 51A and more particularly sub-clauses (b) and (c) insofar as this case is concerned. They read as hereunder:

'It shall be the duty of every citizen of India-

(a) ............

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India.

Article 102(1)(d) reads:

'A person shall be disqualified for being chosen as, and for being, a member of either house of Parliament, if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign state or, is under any acknowledgment of allegiance or adherence to a foreign State'.

10. Learned Counsel for the petitioner wants us to infer from a reading of theabove constitutional provisions that our Constitution makers, in the background of foreign invasion, hard struggle for freedom and achievement thereof, would have never intended to permit a person of foreign origin to participate in the administration of the country and that the Constitution (Forty-Second Amendment) Act, 1976 and incorporation of Article 51A (b) and (c) thereof have to he understood in the said context. Concisely speaking, the contention is that as the 8th respondent is not a horn citizen of India, her citizenship by registration on account of marriage to Mr. Rajeev Gandhi in the year 1969 and her continued stay thereafter in this country by itself cannot instill faith that she will uphold and protect the sovereignty, unity and integrity of India, and thai she still continues to be under acknowledgment of allegiance/adherence to Italy. He also ciles the Constitutional provisions of Italy, United States of America, Mexico, Argentina and Philippines in support of his argument. The relevant provisions of the Constitutions of the above countries are extracted and dealt with.

(A) Italy :

Article 55 : Parliament is composed of the Chamber of Deputies and the Senate of the Republic.

Article 65 : The law determines cases of ineligibility and unfilness for office of deputy or of senator.

Article 84 : Any citizen having reached fifty years of age and enjoying his full civil and political rights may be elected as President of the Republic.

The office of President of the Republic is incompatible with any other appointment.

It is not clear from the material produced as to whether there is any prohibition for a non-Italian born citizen to hold the political post of either Deputy or Senator or President of the Republic.

(B) United Stales of America

Article I:

Section 1 : All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2 : The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the Electors in each State shall have the Qualification requisite for Electors of the most numerous Branchof the State Legislature.

No person shall be a Representative, who shall not have attained to the Age of twenty-five years, and been seven years a Citizen of the United States, and who shall not, when elected, be ait Inhabitant of that State in which he shall be chosen.

Section 3 : The Senate of the United Slates shall be composed of two Senators from each State, chosen by the Legisjature thereof, for six years; and each Senator shall have one Vote.

No person shall be a Senator who shall not have attained to the Age of thirty years, and been nine years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Article II:

Section 1 : ... ... ... ... ... ... ...

No person except a natural born citizen, or a citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained the Age of thirty-five years, and been fourteen years a Resident within the United States.

(C) Mexico :

Article 50 : The legislative power of the United States of Mexico is vested in a General Congress, which shall consist of a Chamber of Deputies and a Senate.

Article 51 : The Chamber of Deputies shall be composed of representatives of the nation, all of whom shall be elected every three years by the citizens of Mexico.

Article 55 : Deputies shall have the following qualifications:

(I) They shall be Mexican citizens by birth and in the enjoyment of their rights.

(II) They shall be over twenty-five years of age on the day of the election.

... ... ... ... ... ... ... ... ... ... ... ... Article 58 : The same qualifications as are required for deputies shall be required for senators, with the exception of age, which must be more than thirty five years on the date of the election.

Article 80 : The exercise of the Supreme Executive power is vested in a single individual, who shall be called 'President of the United States of Mexico'.

Article 81 : The election of President shall be direct, in accordance with the terms of the electoral law.

Article 82 : The President shall have the following qualifications:

(i) He must be a Mexican citizen by birth, in the full enjoyment of his rights, and the son of Mexican parents by birth.

(ii) He must be over thirty-five years of age at the time of his election. ... ... ... ... ... ...

(D) Argentina

Article 77: To be eligible to the office of President or Vice-President of the Nation, a person must have been bom in Argentine territory, must belong to the Catholic Church, and must possess the other qualifications required to be chosen a senator.

(E) Philippines

Article VI:

Section 1 : The Legislative power shall be vested in a Congress of the Philippines, which shall consist of a Senate and a House of Representatives.

Section 4 : No person shall be a senator unless he be a natural-born citizens of the Philippines and, at the time of his election, is at least thirty-five years of age, a qualified elector, and a resident of the Philippines for not less than two years immediately prior to his election.

Section 7 : No person shall be member of the House of Representatives unless he be a natural-born citizens of the Philippines and, at the time of his election, is at least twenty-five years of age, a qualified elector, and a resident of the province in which he is chosen for not less than one year immediately prior to his election.

Article VII:

Section 1 : The executive power shall be vested in a President of the Philippines.

Section 3 : No person may be elected to the office of President or Vice-President unless he be a natural-born citizen of the Philippines, a qualified voter, forty years of age or over, and has been a resident of the Philippines for at least ten years immediately preceding the election.

11. Fundamental Duties stated in Article 51A of the Constitution of India are for observance by citizens of India and notfor the State. They are not akin to fundamental rights guaranteed in Part III of the Constitution, While the fundamental rights are enforceable against the State and its instrumentalities coming within the ambit of Article 12 of the Constitution, fundamental' duties are not enforceable. They are only in the nature of guidance addressed to the citizens in contrast to fundamental rights, which are addressed to the State and its instrumentalities. But, if any statute conforms to the fundamental duties, the same cannot be challenged as being violative of Part III of the Constitution, subject to, of course, legislative competency. As such, the contention advanced on behalf of the petitioner that this Court owes a duty to restrain the 8th respondent from contesting to the post of Prime Minister cannot be countenanced. Equally, the contention that in view of the fundamental duties under Article 51A (b) and (c) read with Article 102(1)(d) of Constitution of India, Section 5(1)(c) of the Act cannot confer the rights on 8th respondent to contest for any political post, is untenable. One need not traverse to any Dictionary, muchless, Black's Dictionary to cull out the meaning of allegiance/adherence. Contextually, they connote the obligation of a subject/citizen to be loyal to the State and follow its Constitution and laws made thereunder. There is no such instance brought to the notice of this Court, by which it can be said that the 8th respondent does not owe allegiance to the Constitution of India and that still she owes allegiance/ adherence to Italy. Further, the objectives underlying Article 51A (b) and (c) as also Article 102(1)(d) of Indian Constitution are firmly embedded in Section 10(2)(b) of the Act, which vest the Central Government with the power of dealing such a situation.

12. Citizenship is a relationship of sovereign and subject and so far as Indian Constitution or the Citizenship Act are concerned, no distinction is drawn in the status of citizen - whether a born citizen(Section 3), citizen by descent (Section 4) or citizen by registration (Section 5(1) (a) to (d)). The citizens under the above legal provisions arc treated on par and are entitled for all civil and political rights. There is a distinction drawn only with regard to citizenship under Section 5(1)(e) as also Section 6(1) of the Act. Question of reciprocity as argued by the learned Counsel for the petitioner is relevant only in the context of the citizenship conferred on foreign nationals under the above two legal provisions - Section 5(1)(e) and Section 6(1) of the Act. While under Section 5(1)(e) of the Act, a person is admitted as a citizen of India, subject to such rights the native Indians enjoy in the countries enumerated in the First Schedule of the Act, insofar as citizen by naturalisation under Section 6(1) of the Act is concerned, no subject or citizen of any country where citizens of India are prevented by law or practice of that country from becoming subjects or citizens of that country by naturalisation, can be naturalised as Indian citizens.

13. From the above discussion, it is clear that for conferment of citizenship by registration under Section 5(1)(c) of the Act, no reciprocity has been imposed by the Parliament. Under Section 5(1)(c) of the Act, there are twin conditions for acquiring the citizenship viz., (i) marriage to an Indian citizen and (ii) 5 years stay in India at the time of making application for registration as a citizen. It is not in dispute that the 8th respondent had complied these conditions and as such, was conferred with the status of Indian citizenship by the Central Government in exercise of the powers under Section 5(I)(c) of the Act. It is for the Parliament, which is the legislative body, to prescribe conditions while conferring citizenship; but merely because conditions have not been prescribed, thus, enabling the citizen of foreign origin to contest for the political post, it cannot be said that the provision is unconstitutional. As alreadystated above, Indian Conslilution does not enumerate the conditions for conferring citizenship and vested the Parliament with the power of framing legislative policy on the said subject and as the legislative policy is within the exclusive domain of the Parliament both by virtue of Article 11 as also Hem 17 of List I of Schedule VII of the Constitution of India, we hold that the provisions of the Citizenship Act, 1955 are unassailable. The Court is not answerable to the query of (he learned Counsel for the petitioner as to why Indian Constitution or the Act did not make a provision akin to that of the Constitutions of United States of America, Mexico, Argentina and Philippines where non-natural born citizens are barred from holding the high political post of President and even becoming the Members of Legislative bodies as in the case of Philippines. Each country frames ils own Constitution and laws and they cannot be drawn as parallels to view the issue of this nature and suffice it to say that it is not for the Courts to spell out any policy on citizenship and it is for the Parliament to spell out its policy and as the legislative policy spelt out in the Citizenship Act, 1955, is in no way derogatory to any of the provisions of the Constitution of India, there are no grounds made out to strike down any of its provisions.

14. The writ petition is thus dismissed.

No costs.


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