Vijender Jain, Acting C.J.
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.
However, as prayers (i) & (ii) no longer survive the petitioner is insisting on prayers (iii), (iv) & (v) of the writ petition.
2. Mr. P.N. Lekhi, learned senior advocate for the petitioner has very forcefully argued the matter confining himself to prayers (iii), (iv) & (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:
CM 6057/2004 in WP (C) No. 2960/2002
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 imp leaded as a respondent in the writ petition. thereforee, 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 organized society because the fundamental identity of a person is citizenship. It was contended before us that the founding father of the Indian Constitution had their background on account of their education either received in England or in India based on the precept of English education system where there was no concept of citizenship. As a colonial regime there was no concept of citizenship. It was a concept either of British natives or the natives of other dominion of the British empire. Whereas in the first written Constitution of the world i.e. United States of America Constitution, Article 2 Section 1 deals with a natural born person who could occupy the high office of the President of the United State of America.
5. It was also contended that the concept of India as a nation only started after coming into force of the Indian Independence Act, 1947 and, thereforee, that fundamental concept of citizenship cannot be whittle down by any act muchless Citizenship Act. It was contended that the basic foundation of Citizenship was Article 5 of the Constitution of India and if we read Article 5 of the Constitution of India it will be clear that a person who was born in the territory of India at the commencement of the Constitution or either whose parents were born in the territory of India or who has been ordinarily resident in the territory of India for not less than 5 years immediately preceding such commencement of the Constitution were the only persons who were citizen of India and could hold either an elective office or a public office like holding of position of President of a political party or office bearer or member of a political party. It was vehemently contended that this was imperative as the idea of the founding father of the Constitution was that no foreign born person could attain politically sensitive corridor of powers. On the basis of this argument it was further contended that if this is not the meaning given to the citizenship as postulated under Article 5 of the Constitution of India, then it is an open invitation under the Indian Citizenship Act for any person who is not a citizen of India in terms of Article 5 to come and be in the corridor of power and decide the destiny of vast magnitude of our people.
6. It was contended that no effective and actual debate took place in the Constituent Assembly as was done at the time of framing of the American Constitution and in this regard the Learned Counsel appearing for the petitioner quoted from the Federalist Papers No. LII : Speech of Medison. The same is as under:
The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. It was incumbent on the convention, thereforee, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper for the reason just mentioned.
7. On the basis of these papers what was contended before us is that in the absence of any background of understanding, matter pertaining to citizenship by the Members of the draft Constituent Assembly and in view of the vast majority of the people being ignorant and illiterate no effective debate on the subject took place. It was thus contended that subsequent Article 11 of the Constitution cannot delegate the power of making citizenship de hors the control imposed in Article 5 of the Constitution of India.
8. The debate at page 987 of Book No. 5 Vol. No. X-XII Index to Constituent Assembly debate was also quoted to the extent that as a matter no debate took place on the draft Constitution.
9. In this regard Learned Counsel for the petitioner referred to Constitutional Assembly Debate Book No. 1 Vol. No. I-VI - Chairman's Inaugural Address, which is to the following effect:
On this historic and memorable occasion, you will not grudge, I am sure, if I venture to address to you some observations on certain aspects of what is called a Constituent Assembly. This political method of devising a constitution for a country has not been known to our fellow-subjects in Britain, for the simple reason, that under the British Constitution, there is no such thing as a constituent law, it being a cherishedprivilege of the British Parliament, as a sole sovereign authority, to make and unmake all laws, including the constitutional law of the country. As such, we have to look to countries other than Britain to be able to form a correct estimate of the position of a Constituent Assembly. In Europe, the oldest Republic, that of Switzerland, has not had a Constituent Law, in the ordinary sense of that term, for it came into existence, on a much smaller scale than it now exists, due to historic causes and accidents, several centuries back. Nevertheless, the present constitutional system of Switzerland has several notable and instructive features, which have strongly been recommended by qualified authorities to Indian constitution- makers, and I have no doubt that this great Assembly will study carefully the Swiss Constitution, and try to utilise it to the best advantage in the interest of preparing a suitable constitution for a free and independent India.
10. It was also contended that basically Draft Constitution was copied from Government of India Act, 1935 and rest of it was borrowed from Constitution of other countries and very little is original.
11. It was also contended by Mr. Lekhi that there are more than 196 countries in the world and as many political systems which govern and control the basic structure of the Constitution. All these countries and whatever be the system of governance when the Constitution has to be interpreted and as far as State apparatus is concerned, the conventional approach has always been that entrustment of State power is saved only in the hands of natural born person as such a person is born with the genes of the country of birth which no imported stuff can boast of and in none of the political countries a person other than a natural born citizen of that State can occupy a place of eminence. In this connection, counsel for the petitioner has relied upon the Constitution of United States of America which is the oldest written Constitution. Clause 5 of Section 1 of Article II (Executive Department) of the US Constitution reads:
No person except a natural born Citizen, or a Citizen of the United States, at the time 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 to the Age of thirty five years, and been fourteen years a resident within the United States.
12. It was contended that 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. Baron Steuben served under Washington command as Inspector General, Continental Army and then John Ray (who later became the Chief Justice of the then Union of American States - later to be known as United States of America) was an eminent jurist, statesman and one of the leading lights of the American Independence. He wrote on 25th July, 1787 a letter to George Washington and other delegates to the Convention. The same is as under:
Permit me to hint, whether it would be wise and reasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in Chief of the American army shall not be given to nor devolve on, any but a natural born citizen.
and in the context it was contended by Mr. Lekhi that it is natural born citizen which was in mind at the time of drafting of the Draft Constitution and Article 5 of the Constitution exemplifies this concept and that is why Shri Alladi Krishnaswami Ayyar while speaking in the Constituent Assembly said as under:
The object of these articles is not to place before the House anything like a code of nationality law. That has never been done in any State at the ushering of a Constitution. A few principles have no doubt been laid down in the United States Constitution; but there is hardly any Constitution in the world in which a detailed attempt has been made in regard to nationality law in the Constitution. But, as we have come to the conclusion that our Constitution is to be republican constitution and provision is made throughout the Constitution for election to the Houses of Parliament and to various assemblies in the units, and for rights being exercised by citizens, it is necessary to have some provision as to citizenship at the commencement of the Constitution. Otherwise, there will be difficulties connected with the holding of particular offices, and even in the starting of representative institutions in the country under the republican constitution....
13. On the basis of aforesaid reasoning it was contended that every elector shall not qualify to contest. Only such elector can contest who satisfy the definition of citizen as provided under Article 5 of the Constitution otherwise the provision of either Representation of People Act, 1950 or 1951 would be repugnant to the Constitution and would defeat the purpose for which Article 5 was included in the Constitution.
14. It was contended that all those who have written Constitution contemplate them as framing the fundamental and paramount law of the nation and consequently the theory of every such Government must be that an Act of the legislature repugnant to the Constitution is void. The life of law has not been logic. It has to be experience. It was contended by Mr. Lekhi that the Judges are the interpreter of the Constitution and the interpretation has to be in consonance with the requirement of Constitutional philosophy of a social and economic democracy. The Learned Counsel for the petitioner relied upon Mrs. Valsamma Paul v. Cochin University and Ors. : 1SCR128 where it was observed by Supreme Court:.The Judges are participants in the living stream of national life, steering the law between the dangers of rigidity and formlessness in the seamlessweb of life. Judge must be a jurist endowing with the legislator's wisdom, historian's research for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future to decide objectively, disengaging himself/herself from every personal influence or predilections. The Judges should adopt purposive interpretation of the dynamic concepts under the Constitution and the Act with its interpretive armoury to articulate the felt necessities of the time.
15. Quoting Roscoe Pound in his famous work on Jurisprudence Vol. I page 366:
In this inquiry it will be convenient to think of four stages of legal development in systems which have come to maturity : (1) The stage of primitive law, (2) the stage of strict law; (3) the stage of equity and natural law, and (4) the stage of maturity of law. To these we must be added a fifth stage upon which the law has entered definitely throughout the world.
16. It was contended that 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.
17. 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.
18. It was contended by Mr. Lekhi that Constitutional law has all rules which directly or indirectly affects the distribution or exercise of the sovereign power, the law relating to the legislature, the executive and the judiciary. According to Dicey Constitutional Law includes all rules which directly or indirectly affect the distribution or exercise of the sovereign power in the State. What a Constitutional Law usually embraces within its scope has been thus set out by Hood Phillips in his book 'Constitutional and Administrative Law' 6th Edn. at page 11, the same is reproduced below:
More specifically, constitutional law embraces that part of a country's law which relates to the following topics, among others : the method of choosing the Head of State, whether king or president; his powers and prerogatives; the constitution of the legislature: its powers and the privileges of its members; if there are two Chambers, the relations between them; the status of Ministers and the position of the civil servants who act under them; the armed forces and the power to control them; the relations between the central government and local authorities; treaty-making power; citizenship; the raising and spending of public money; the general system of courts, and the tenure and immunities of judges....
19. Mr. Lekhi has contended that Hari Shankar Jain v. Sonia Gandhi : AIR2001SC3689 did not decide the issue raised in the present writ petition as the question before the Supreme Court was that a certified copy of the entry in the electoral roll shall be conclusive evidence of the person being an elector of a constituency. The Supreme Court held that unless it is proved that he/she is subject to a disqualification mentioned under Section 16 of the Representation of People Act, 1950, thereforee, the position as emerged was that if a person is alleged to be not a citizen of India and, thereforee, suffering from absence of qualification under Article 84 as also a positive disqualification under Article 102 of the Constitution then the case is one which attracts applicability of Section 100(1)(d)(iv) of the Representation of People Act, 1951 and as such an issue can be treated by the High Court in an election petition in respect of a returned candidate being enrolled in the voters list for it will be a case of alleged non-compliance with the provisions of the Constitution.
20. Quoting Constitutional Government & Democracy by Carl J. Friedrich at page 6 it was said:
Constitutionalism is an achievement of the modern world. It is a very recent achievement, and it has by no means become stablized. Indeed, it is a complex system of providing for orderly change, and there is no reason for assuming that the need for change will come to an end in the immediate future. Both nationally and internationally, we are confronted with gigantic tasks....
21. In the above context it was contended that Constitution is not a static document. It requires dynamic interpretation and, thereforee, the interpretation of the Constitution is to subserve the interest of India and that can only be possible when a person who is not a natural born citizen is not given a right to contest an election or debarred from holding a public office in any political party and that it was in the scheme of things as at the time of initiation of the Constitution in 1950. A very interesting argument was raised by Learned Counsel for the petitioner that mindful of the fact that elections were going to take place after the Constitution is adopted the founding father of the constitution has inserted Article 5 in the Constitution of India. Article 5 of the Constitution of India did not envisage that any foreign born person can context an election to Parliament or to the State Legislature. thereforee, it was vehemently argued before us that if a person who was a foreign born national acquired Indian citizenship at the commencement of the Constitution and the election thereafter in 1950 to the Lok Sabha and to the State Assembly could not have contested election then, how today that person can be eligible to contest an election to the Lok Sabha or to the State Assembly.
22. It was contended that reading 10th Schedule of the Constitution with Section 29(a) of the Representation of People Act, 1951, it was only in 1985 that the concept of original political party was first introduced in the Representation of People Act. It was contended by Mr. Lekhi that a reading of 10th Schedule with Section 29(a) of the Representation of People Act, Articles 84 & 173 of the Constitution, it makes very clear that if a person who is foreign born and is an office bearer or member of a political party, that political party has to be de-registered.
23. It was contended by Learned Counsel for the petitioner that paragraph 2 (h) of The Election Symbols (Reservation & Allotment) Order, 1968 defines a political party as under:
Political party' means an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Representation of People Act, 1951.
24. Deliberating on the Article 58 of Constitution of India in relation to qualification of President, Article 66 relating to qualification of Vice-President, Article 102 pertaining to disqualification of Member of Parliament, Article 173 with regard to disqualification of a Member of State Assembly, Mr. Lekhi has contended that no person shall be eligible for the post of Vice-President if he is not a citizen of India under Article 66. Similarly a person stands disqualified for being chosen as a Member of Parliament and for being a Member of either House of Parliament if he is not a citizen of India and similar is the provision under Article 173 with regard to disqualification of a member of a Legislative Assembly. Article 326 also prescribes that elections to the House of Parliament and to the State Assemblies of the States has to be on the basis of adult suffrage that is to say every person who is a citizen of India and who is not less than eighteen years of age.
25. On the basis of the cumulative reading of the aforesaid provisions of the Constitution it was contended that the concept of citizen of India cannot be interpreted outside the scope, content, meaning and effect of Article 5 of the Constitution of India. It was also contended that Constitution was established in 1950 and both the Acts i.e. Representation of People Act, 1950 and Representation of People Act, 1951 were also enacted thereafter. To elaborate his arguments Mr. Lekhi contended that if foreign born citizen could not contest election to Lok Sabha or Rajya Sabha or to the State Assemblies, although Article 11 was also enshrined in the Constitution then any departure or relaxation cannot be given under the Citizenship Act which has been enacted pursuant to Article 11 of the Constitution of India. It was contended that the Citizenship Act cannot entitle a foreign born person to contest the election if the same was not permissible in 1952 in spite of Article 11 being on the statute book. It was contended that giving interpretation under the garb of the Citizenship Act to a foreign born person to contest the election and hold a elective position or to hold a public office would amount to amending the scheme of the Constitution and Article 5 and thereby negating effect of Article 5 of the Constitution of India. Sections 4, 5 & 6 of the Citizenship Act do not answer the questions which are so fundamental in view of the historical setting of the country and, thereforee, one has to fall back for its content and effect on Article 5 of the Constitution of India. Article 11 of the Constitution is to the following effect:
Parliament to regulate the right of citizenship by law - Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
26. It was contended by Learned Counsel for the petitioner that Article 11 only postulates and delegates the power to Parliament to make provision with regard to the acquisition and termination of citizenship and the words occurring 'all other matters' has to be read sue generis with acquisition and termination of citizenship only. It was contended that in view of this limited meaning of Article 11 for citizenship for the purpose of election one has to go back to Article 5 of the Constitution of India which is to the following effect:
5. Citizenship at the commencement of the Constitution - At the commencement of this Constitution every person who has his domicile in the territory of India and --
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement.
shall be a citizen of India.
27. It was also argued that phrase used in Article 11 'Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament' means that subsequent law made by Parliament cannot take away, lessen or impair the authority and it only means in the context of these proceedings that Citizenship Act does not impair the rights given under Article 5 of the Constitution. Reliance in this regard was placed on the following para from P.C. Joshi and Anr. v. The State of Uttar Pradesh : 1961CriLJ566 :
It is manifest that by the non-obstante clause, 'notwithstanding anything contained in this Code' in Sub-section (1) the operation of diverse provisions of the Code relating to the initiation and trial of the offence of defamation is excluded and prima facie Section 198 is one of those provisions.
28. Learned Counsel for the petitioner contended that there is a distinction between naturalized citizen and a citizen who has become citizen on account of registration. thereforee, it was contended that insofar as Sections 5 & 6 of the Citizenship Act are concerned, they do not create any distinction with regard to a citizen of India who can be elected and who can hold public office, cannot be the guiding statute as the same are in contravention of Article 5 of the Constitution of India. It was contended that citizenship is an expression which includes various shades and kinds. It was contended that our laws provide two kinds of citizenship; one is ad hoc citizen and another is a permanent citizenship. Ad hoc citizenship is one where the citizenship can be deprived to a citizen and attention was drawn to Section 10 of the Citizenship Act in this regard.
29. It was contended that in the scheme of our law and also the Constitution two classes of citizen, i.e. citizen by birth and other class of statutory citizens by virtue of Constitutional provision has been laid down. It was contended that Section 7A and 7B of the Citizenship Act only indicate that those Indian citizens who are holding status of Indian citizenship under the Constitution or under Section 3 of the Citizenship Act have the right to participate in the political arena of the State.
30. It was next contended by Learned Counsel for the petitioner that from a contextual appreciation of the power, the person falling in Article 5(c) or Section 5(c) of the Citizenship Act would fall in the category of ad hoc citizen whose citizenship can be terminated pursuant to Section 10 of the Citizenship Act and, thereforee, on that basis it was contended that these classes of citizen cannot contest election or hold public office. Next it was contended that if literal meaning to the words 'At the commencement of the Constitution' occurring in Article 5 of the Constitution is given, this will lead to many contradictions and absurdity. It was contended that children who were born after 27th January, 1950 would not be citizen if that kind of interpretation is given to Article 5 of the Constitution. thereforee, it was contended that a purposeful interpretation of Article 5 has to be given by the Court. In this context reliance was placed on DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and Ors. : 2SCR1 where Supreme Court observed as under:
In Tirath Singh v. Bachittar Singh an election dispute was the subject-matter of the lis. The question which arose for consideration therein was as to whether the principles of natural justice had to be read in the proviso appended in Section 99(1)(a) of the Act. Repelling such contention it was held : (AIR pp. 833-34, para 7)
But it is a rule of interpretation well established that, 'where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence'. (Maxwell's interpretation of Statutes, 10th Edn., p.229). Reading the proviso along with clause (b) thereto, and construing it in its setting in the section, we are of opinion that notwithstanding the wideness of the language used, the proviso contemplates notice only to persons who are not parties to the petition.
31. Mr. Lekhi also relied upon U.S. Supreme Court Reports 132 L.Ed.2d:
It is a fundamental principle of statutory construction that the meaning of the word cannot be determined in isolation, but must be drawn from the context in which it is used.
32. Quoting from Dynamic Statutory Interpretation, Mr. Lekhi has contended that the Court has to give an interpretative purposeful contextual meaning to the definition of Article 5 as occurring in the Constitution and relied upon the following passage:
Because of gaps and ambiguities for issues unresolved or unanticipated by the legislative process, statutes begin to evolve from the moment people start applying them to concrete problems. Over time that statutory evolution becomes ever more striking because the world changes, often as a result of the statute itself. Changed circumstances have important consequences for statutory interpretation. Statutes are enacted by their drafters with certain consequences in mind, but whether those consequences actually occur (or undesirable consequences do not occur) depends on a series of assumptions about people and institutions, about society and its more, and about law and policy. If those assumptions unravel over time, the statute will not have its intended consequences, and however the statute is applied by decision makers, it will be interpreted dynamically - that is, subsequent interpreters will apply the statute in ways unanticipated by the original drafters.
33. Mr. Lekhi placed reliance on Craies on Statute Law 7th Edn. on doctrine of Relaxation of rule of strict construction:
The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules, 'All modern Acts are framed with regard to equitable as well as legal principles.' A hundred years ago, said the court in Lyons' case, statutes were required to be perfectly precise, and resort was not had to a reasonable construction of the Act, and thereby criminals were often allowed to escape. This is not the present mode of construing Acts of Parliament. They are construed now with reference to the true meaning and real intention of the legislature.
34. It was also contended that overseas citizens though they were citizens but they did not have a right to vote. It was contended that cultural and historical genes are not possible in a foreign born person. thereforee, in the absence of knowledge of local experience, traditions, social, history which can be possessed by a natural born citizen cannot be possessed by a foreign born person. thereforee, the genetic connection with the soil cannot be had by a person who does not have a genetic connection to the country of adoption. A natural born has firm roots, understands the flow of the language, the cultural, historical, economical, political diversity in comparison to a person who was not born in a country but has been granted citizenship under the statute. Reliance was placed by Mr. Lekhi on Political Systems of the World and it was quoted from the Malaysia Constitution that 48% of Malay constitute the majority population of Malaysia. In the Constitution of Malaysia, ethnic Malay has to be in the forefront in the matter of governance of that country.
35. Mr. Lekhi placed reliance on Common Law of UK at page 89, the same is to the following effect:
We have seen that in general, naturalization required a special Act of Parliament. Even then the person so naturalised was never, after 1714 allowed to become a privy councillor, a member of Parliament, the holder of a public office, or capable of receiving from the crown a grant of land in Great Britain or Ireland....
36. It was next contended that the word 'citizen' which occurs in the Constitution in 1950 was adopted in the Representation of People Act, 1950 and Representation of People Act, 1951 and that has to be read in its contextual meaning with Article 5 of the Constitution of India as classes of citizen which were permanent citizens and only they were entitled for seeking an election to an elected office or to a public office.
37. Mr. Lekhi further placed reliance on the following observation made by Chief Justice Marshall in US 4 Law Ed.:
This provision is made in a constitution intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
38. Relying on Constituent Assembly Debate Book No. 1 page 417-426, it was contended that Article 5 was inserted by the constitutional framers so as to have in the Constitution an Article which defines a class of citizen who could hold public office or an elected office.
39. Mr. Malhotra, learned Additional Solicitor General of India has contended that this writ petition is not a Public Interest Litigation but a Personal Interest Litigation. It was contended that the questions raised by the petitioner are purely political questions and Court can neither answer nor adjudicate on political questions. In support of his argument, Learned Counsel for the respondent cited S.P. Gupta v. M. Tarkunde : 2SCR365 where it was observed as follows:. The Court must not allow its process to be abused by politicians and Ors. to delay legitimate administrative action or to gain a political objective. Andre Rabie has warned that 'political pressure through the administrative process' and we might add, through the political process, 'may try to use the courts to further their aims'. These are some of the dangers in public interest litigation which the court has to be careful to avoid....
40. Learned Counsel for the respondent contended that the Courts have no power to legislate. If the Citizenship Act has been brought on the statute book pursuant to the mandate of Article 11 of the Constitution of India what ought to have been a law in relation to a foreign born person cannot be declared by the court in the absence of any such restriction imposed by the Constitution or the Act. Mr. Malhotra contended that the argument of the Learned Counsel for the petitioner was fallacious as what ought to have been the Constitution is not for the petitioner to lay down nor for the Court to legislate.
41. Mr. Malhotra has contended that Article 5 dealt with citizenship at the commencement of the Constitution and thereafter Article 6 deals with right of citizenship of certain persons who have migrated to India from Pakistan and Article 7 deals with right of citizenship of certain migrants to Pakistan, Article 8 deals with rights of citizenship of certain persons of Indian origin residing outside India and Article 9 deals with persons voluntarily acquiring citizenship of a foreign State not to be citizens of India and thereafter Article 11 empower the Parliament to make any provisions with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. Learned Additional Solicitor General has also contended that another Article of the Constitution i.e. Article 246 also postulates subject matter of laws made by Parliament and by the legislature of the States. Article 246(1) is as under :
246. Subject-matter of laws made by Parliament and by the Legislatures of States:- (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List').
42. Pursuant to the aforesaid Article 246 in List 1, Entry 17, Seventh Schedule is with regard to citizenship, naturalization and aliens. On the basis of Entry 17 in List I of Seventh Schedule pursuant to power given under Article 246 of the Constitution of India, the Parliament had exclusive power to make laws on citizenship, and, thereforee, the argument of the petitioner that the power of the Parliament to make laws could only be subject to the provision of Article 5 of the Constitution was on the face of it based on misconceived notion.
43. It was next contended by Mr. Malhotra that even if we look at Article 5 of the Constitution of India, although in the heading of that Article it has been mentioned that the citizenship as postulated under Article 5 of the Constitution of India was for the purposes of transitional period i.e. at the time of commencement of the Constitution. However, even at that time what was required to be a citizen of India was not that a person has to be born in the territory of India but a person who had his domicile in the territory of India and, thereforee, according to the Learned Counsel for the respondent the arguments advanced by the Learned Counsel for the petitioner was bereft of any logic. From the reading of Article 5 of the Constitution it is discernible that at the commencement of the Constitution every person who had domicile in the territory of India and who was born in the territory of India or either whose parents were born in the territory of India or who had been ordinarily resident of the territory of India for not less than 5 years preceding such commencement was treated as a citizen of India.
44. To show what is the requirement of Domicile under Article 5 of the Constitution, Learned Counsel for the respondent relied upon Black's Law Dictionary 6th Edition at page 484 on the meaning of 'Domicile' which is as under:
A person's legal home. That place where a person has his true, fixed and permanent home and principal establishments, and to which whenever he is absent he has the intention of returning. Smith v. Smith 206 Pa.Super.310, 213 A.2d 94. Generally, physical presence within a State and intention to make it one's home are the requisites of establishing a 'domicile' therein. Montoy v.Collier 85 N.N.356, 512 P.2d 684, 686. The permanent resident of a person or the place to which he intends to return even though he may actually reside elsewhere. A person may have more than one residence but only one domicile. The legal domicile of a person is important since it, rather than the actual residence, often controls the jurisdiction of the taxing authorities and determines where a person may exercise the privilege of voting and other legal rights and privileges. The established, fixed, permanent, or ordinary dwelling place or place of residence of a person, as distinguished from his temporary and transient though actual, place of residence. It is his legal residence, as distinguished from his temporary place of abode, or his home, as distinguished from a place to which business of pleasure may temporarily call him.
45. Learned Counsel for the respondent relied upon Stroud's Judicial Dictionary at page 766 on the meaning of 'Domicile' which is as under:
I would venture to suggest that definition of an acquired domicile might stand thus: 'That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected, or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home'.
46. Wharton's Law Lexicon 14th Edition at page 344:
By the term 'domicile' in its ordinary acceptation, is meat the place where a person lives or has his home. In this sense the place where a person has his actual residence, inhabitancy, or commorancy, is sometimes called his domicile. In a strict and legalsense, that is properly the domicile of a person where he has his true fixed permanent home and principal establishment, and to which, wheneverhe is absent, he has the intention of returning.
47. Jowitt's Dictionaryof English Law at page 649:
Domicile of origin is that which a child receives at his birth. Every person preserves his domicile of origin until he acquires another domicile, and on his abandoning or losing an acquired domicile, his domicile of origin revives. Thus, if a husband and wife domiciles in England take a voyage to India, and a child is born to them on the voyage, or in India before they acquired a domicile there, the child's domicile is English (Somerville v.Somerville (1801) 5 Ves.749); if the child grows up and settles in India he acquires an Indian domicile; if he leaves India with the intention of settling permanently in America, he loses his Indian domicile, and his English domicile revives, so that if he dies before reaching America the succession to his personal property will be regulated by English law (Udny v. Udny (1869) L.R. 1 Sc.App.441
48. Domicile by operation of law or domicile of dependence is that which attaches to a person independently of his will and without reference to birth, residence or other facts.'
49. Mr. Malhotra place reliance on Kedar Pandey v. Narain Vikram Sah : 3SCR793 :
In our opinion, the decisions of English Courts in Udny v. Undy and Doucet v. Geoghegan represent the correct law with regard to change of domicileof origin. We are of the view that te only intention required for a proof of a change of domicileis an intention of permanent residence. In other words, what is required to be established is that the person who is alleged to have changed his domicileof origin has voluntarily fixed the habitation of himself and his familyin the new country, not for a mere special of temporary purpose, but with a present intention of making it his permanent home.
50. And it was contended by Mr. Malhotra that if a person has resided in the country for 18 years before applying for Indian Passport, it cannot be said that he/she has no intention of staying in the country as was contended by the Learned Counsel for the petitioner and in this regard placed reliance on Doucet v. Geoghegan 1878 9 CD 441 :
We think that length of residence, according to its time and circumstances, raises the presumption of intention to acquire domicile. The residence may be such, so long and so continuous, as to raise a presumption nearly, if not quite, amounting to a presumptio Jurisdiction et de jure; a presumption not to be rebutted by declarations of intention, or otherwise than by actual removal.
51. In Central Bank of India v. Ram Narain : 1955CriLJ152 , it was held that:.That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing there from....
52. The definition of domicile by Wharton's Law Lexicon 14th Edition was approved by the Supreme Court in D.P. Joshi v. State of Madhya Bharat and Anr. : 1SCR1215 . In Craignish v. Hewitt 1892 (3) CD180 to the same effect was also cited by the Learned Counsel for the respondent.
53. Quoting a nine Judge Bench decision of the Supreme Court in The State Trading Corporation of India Ltd. v. The Commercial Tax Officer : 4SCR99 , it was contended that Article 5 of the Constitution of India dealt with situation which has emerged after independence of the country, general elections were to be held to the Parliament as well as to the State Assemblies and mindful of that fact the founding fathers of our Constitution provided that a person who has been domiciled in the territory of India was to be a citizen apart from the other classes of people for whom provisions were made in Article 5 of the Constitution of India and, thereforee, the words occurring in the Representation of People Act, 1950 and Representation of People Act, 1951, the persons who were citizens of India were eligible to contest the elections for Parliament and for the State Assemblies. Taking note of this fact the Supreme Court in this case held as follows:
In so far as we are concerned this created a hiatus because the scheme of Indian Citizenship was not completely worked out on 26th January, 1950. The Constitution no doubt declared who were India citizens on that date but the status of a British subject without citizenship which was mellifluously called Commonwealth Citizenship 'could not be liquidated' unless there was a citizenship law as contemplated by the English Act of 1948. As a result, in the words of Clive Parry,
Pending the completion of the scheme of Indian citizenship, persons who were potentially citizens of India but are not citizens thereof remained British subjects without citizenship in the eyes of the United Kingdom.
54. It was, thereforee, contended that pursuant to the enactment of Citizenship Act, 1955 there was no grey area which requires the citizenship to be only in terms of Article 5 of the Constitution of India de hors Citizenship Act, 1955, which was enacted pursuant to the mandate of Article 11 of the Constitution of India.
55. Mr. Malhotra further contended that political rights have been secured to all citizens of the country in the preamble of the Constitution itself and, thereforee, no discrimination can be made with one class of citizen and Ors. unless any class of citizens have been explicitly excluded from enjoying the political rights either under the Constitution itself or any other statute enacted by the Parliament. The preamble of the Constitution is reproduced as under:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
56. Mr. Malhotra based on the said Preamble of the Constitution submitted that Constituent Assembly did not recognise any discrimination between the citizens of any kind whatsoever.
57. Controverting the argument of Mr. Malhotra, Mr. Lekhi has contended that domicile means a person who has fixed as a habitation of himself and his family not for a mere special and temporary purpose but with an intention of making his permanent home and domicile denotes connection with the territorial system of law. In support of his contention, Mr. Lekhi relied on Abdus Samad v. State of West Bengal : 1973CriLJ1 , where Court observed as under:
In the present case the domicile of origin communicated by operation of law to the appellant at birth at Sylhet could not partition of India be called Indian. The domicile of choice is that every person of full age is free to acquire in substitution for that which he possesses at the time of choice. By domicile is meant a permanent home. Domicile means the place which a person has fixed as a habitation of himself and his family not for a mere special and temporary purpose, but with a present intention of making it his permanent home. Domicile of choice is thus the result of a voluntary choice.
Every person must have a domicile. A person cannot have two simultaneous domiciles. Domicile denotes connection with the territorial system of law. The burden of proving a change in domicile is on those who allege that a change has occurred.
58. It was contended that residence alone unaccompanied by the state of mind is insufficient and on this basis it was contended that if a person who has been a resident of India for more than 18 years and has not applied for Indian Passport, he cannot be termed to have any desire to have a permanent habitat in India. Replace was placed on Louis De Raedt. v. Union of India : 3SCR149 .
59. It was contended that the conception of domicile in the scheme of our laws as regards citizenship has to be borne in mind on the basis of the scheme of the Constitution as conception of domicile is foreign to the law framed under Article 11 of the Constitution namely the Citizenship Act, 1955. Mr. Lekhi argued that the conception of domicile in Article 5 deals only with persons who had their domicile prior to the commencement of the Constitution namely prior to 26th January, 1950 and word 'domicile' cannot be read in Article 11 of the Constitution of India.
60. Repelling the contention of Mr. Malhotra that reference to debate in the Constituent Assembly cannot be made, Learned Counsel for the petitioner quoted from Golak Nath's case, which is as under:
Copious references were made during the course of arguments to debates in Parliament and it is argued that it is open to this Court to look into the debates in order to interpret Article 368 to find out the intention of the Constitution makers. We are of opinion that we cannot and should not look into the debates that took place in the Constituent Assembly to determine the interpretation of Article 368 and the scope and extent of the provision contained therein. It may be conceded that historical background and perhaps what was accepted or what was rejected by the Constituent Assembly while the Constitution was being framed, may be taken into account in finding out the scope and extent of Article 368. But we have no doubt that what was spoken in the debates in the Constituent Assembly cannot and should not be looked into in order to interpret Article 368. Craies on Statute Law (Sixth Edition) at page 128 says that 'it is not permissible in discussing the meaning of an obscure enactment, to refer to 'parliamentary history' of a statute, in the sense of the debates which took place in Parliament when the statute was under consideration' and supports his view with reference to a larger number of English case. The same is the view of Maxwell on Interpretation of Statutes, (11th Edition), Page 26. Crawford on Statutory Construction (1940 Edition) at page 340 says that resort may not be had to debates to ascertain legislative intent, though historical background in which the legislation came to be passed, can be taken into consideration.
61. Reliance was also placed in this regard on Fothergil v. Monarch Airlines Ltd. 1980 2 All ER 696 HL, Pepper v. Hart 1991 2 All ER 824 CA and the appeal decision reported as 1993 - 1 All ER 824 HL in which it was held:
Having regard to the purposive approach to construction of legislation the courts had adopted in order to give effect to the true intention of the legislature, the rule prohibiting courts from referring to parliamentary material as an aid to statutory construction should, subject to any question of parliamentary privilege, be relaxed so as to permit reference to parliamentary material....
62. Repelling the contention of Mr. Malhotra that in view of the Citizenship Act, once a citizenship is granted to a person, the person has all rights i.e. civic and political, Mr. Lekhi placed reliance on the speeches made by the members of the Constituent Assembly like Diwan Bahadur Sir Alladi Krishnaswami Ayyar, who observed:
The clause relating to discrimination in the context can only refer to civic right... the word 'discrimination' has been understood not to extent to political right, and it is only confined to civic right ordinarily exercised by the citizen. We are not doing anything novel.
63. This was stated by Sir Alladi Krishnaswami Ayyar while responding to the speech made by the member who preceded him in the debate. Shri M. Ananthasayanam Ayyangar in clause 4 said:
The State shall make no discrimination against any citizen on grounds of religion, race, caste or sex.
64. On the basis of the aforesaid it was contended that even in the Constituent Assembly the rights which were conferred, a distinction between political and civic rights was made and, thereforee, a person although may be a citizen and may enjoy civic rights but not political right.
65. On the basis of the aforesaid, it was contended that when Article 5 was enacted there was nothing before the Constituent Assembly to foresee that a foreigner who had been registered as citizen of India under Section 4 of the Citizenship Act would by an incident of marriage into a political family can exercise absolute control and would hold his or her grip on one of the major political parties and would be in a position to wield absolute executive and political power. thereforee, it was contended that any class of citizens pursuant to Articles 6 to 11 or under the Citizenship Act is a class apart from citizens as defined by Article 5 of the Constitution. Political rights are different from civic rights and all other citizens who are not citizens under Article 5 enjoy all civic rights but not political rights like forming or heading a political party or holding any executive office of the State.
66. Learned Counsel for the respondent contended that the framers of our Constitution were well aware of the ground realities and, thereforee, in a special chapter relating to Citizenship they took into consideration that at the commencement of the Constitution who would be the citizen of India and thereafter other provisions were made pursuant to Article 6 to 10 and Parliament was given unfettered discretion and jurisdiction to make laws regarding citizenship. He relied upon Izhar Ahmad Khan v. Union of India  Supp.3 SCR 235:.That takes us to Article 11 which empowers the Parliament to regulate the right of citizenship by law. It provides that nothing in the foregoing provisions of Part II shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. It would thus be noticed that while making provisions for recognising the right of citizenship in the individuals as indicated by the respective articles, and while guaranteeing the continuance of the said rights of citizenship as specified by Article 10, Article 11 confers and recognises the power of the Parliament to make any provision with respect to not only acquisition but also the termination of citizenship as well as all matters relating to citizenship. Thus, it would be open to the parliament to affect the rights of citizenship and the provisions made by the Parliamentary statute in that behalf cannot be impeached on the ground that they are inconsistent with the provisions contained in Article 5 to 10 of Part II. In this connection, it is important to bear in mind that Article 11 has been included in Part II in order to make it clear that the sovereign right of the Parliament to deal with citizenship and all questions connected with it is not impaired by the rest of the provisions of the said Part. thereforee, the sovereign legislative competence of the Parliament to deal with the topic of citizenship which is a part of Entry 17 in List I of the Seventh Schedule is very wide and not fettered by the provisions of Articles 5 to 10 of Part II of the Constitution. This aspect of the matter may have relevance in dealing with the contention raised by the petitioners tat their rights under Article 19 are affected by the impugned provisions of Section 9(2) of the Act.
67. Learned Additional Solicitor General rebutting the argument of the petitioner that there are several classes of citizenship or one class of citizens will have political right and other class of citizens can have only civic rights, contended that the whole argument is totally inconsistent with the Constitutional mandate and its scheme. He placed reliance on Article 16 of the Constitution, which is to the following effect:
16. Equality of opportunity in matters of public employment.--(1) There shall be quality of opportunity for all citizens in matters relating to employment or appointment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3)Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
(4)Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
[(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.]
[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for bring filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.]
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
68. Learned Counsel for the respondent further contended that there was nothing unintended by the Constitutional framers which cannot be done by this Court under the principle of purposive interpretation and in this context reliance was placed on Dental Council of India and Anr. v. Hari Prakash and Ors. : AIR2001SC3303 , Supreme Court observed as under:.Thus, the Act has not remained static but is catching up with the times. thereforee, what is not included by the legislature cannot be undone by us by adopting the principle of purposive interpretation.
69. Learned Additional Solicitor General further contended that what is required for interpretation of Article 11 is manifest from the language used by the framers of the Constitution in Article 11 and the same cannot be read as the Learned Counsel for the petitioner wants this Court to read. In support of his contention Mr. Malhotra has relied upon State of Maharashtra and Ors. v. Nanded Parbhani Z.L.B.M.V. Operator Sangh : 1SCR357 .
70. Mr. Malhotra laid stress on Suresh Seth V. Commr. Indore Municipal Corporation and Ors. : AIR2006SC767 wherein Supreme Court held:
Under our Constitutional scheme Parliament and legislative assemblies exercised sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.
71. We have given our careful consideration to the arguments advanced by Learned Counsel for the parties. Broadly speaking the questions for determination are whether Article 5 of the Constitution was not for transitory period and will override the provisions of Article 11 and other statutes concerning citizenship, secondly 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, thirdly, 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 fourthly 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 there under 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.
72. There cannot be two opinion with regard to the general proposition of law as enunciated that if there is vagueness in the language of a statute, a strict literal construction rule will not find the answer. Literal construction rule was given a go-bye in seven Judges Bench in Bangalore Water Supply Sewerage Board v. A. Rajappa : (1978)ILLJ349SC . But it was in a case where a defect appears then a judge cannot simply fold his hands and blames the draftsman. He must set to work on the constructive task of finding the intention of Parliament, then he must supplementthe written words so as to give force and life to the intention of the legislature. In Seaford Court Estates Ltd. v. Asher where Lord Denning, J. said:
A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture or it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
73. In State of Karnataka v. Appa Balu Ingale : 1993CriLJ1029 :
The Judges are participants in the living stream of national life, steering the law between the dangers of rigidity and formlessness in the seamless web of life. Judge must be a jurist endowing with the legislator's wisdom, historian's search for truth, prophet's vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future to decide objectively, disengaging himself/herself from every personal influence or predilections. The Judges should adopt purposive interpretation of the dynamic concepts under the Constitution and the Act with its interpretive armoury to articulate the felt necessities of the time.
74. Let us first deal with the submission of Mr. Lekhi that there was no discussion on the draft Constitution. In Book No. 2 Vol.No.VII in the Constituent Assembly debate Dr. B.R. Ambedkar at page 31 stated as under:
The Draft Constitution has been before the public for eight months. During this long time friends, critics and adversaries have had more than sufficient time to express their reactions to the provisions contained in it. I dare say that some of them are based on misunderstanding and inadequate understanding of the Articles. But there the criticisms are and they have to be answered.
75. The draft Constitution was before the people of India for eight months. thereforee, to say that it was not debated nor the draft Constitution was in the public realm is factually incorrect. It was contended that at that time vast majority of our people were poor, illiterate, they never knew about what was the draft Constitution. It is true that at the time of dawn of independence people were illiterate but one must not forget that in the vast magnitude of illiteracy, poverty and exploitation, these very people gave birth to a movement and public opinion was so generated that even the might of the British Empire also collapsed. So these illiterate people under colonial rule had the political maturity to understand that their future aspirations were secured in the hands of the founding fathers of our Constitution.
76. The Learned Counsel for the petitioner lost sight of the observation made at page 987 of Book No. 5 Vol.No.X-XII Index to the Constituent Assembly debates where it was also mentioned:.It may interest honourable Members to know that the public were taking great interest in its proceedings and I have discovered that no less than 53,000 visitors were admitted to the Visitors gallery during the period when the Constitution has been under consideration..In the result, the Draft Constitution has increased in size, and by that time it has been passed, it has come to have 395 articles and 8 schedules, instead of the 243 articles and 13 schedules of the original Draft of Mr. B.N. Rau. I do not attach much importance to the complaint which is sometimes made that it has become too bulky. If the provisions have been well thought out, the bulk need not disturb the equanimity of our mind.
77. And debate of Constituent Assembly Book No. 5 Vol.No.X-XII Index to the Constituent Assembly debates at page 989, to the following effect:.In my opinion, our people possess intelligence and commonsense. They also have a culture which the sophisticated people of today may not appreciate, but which is solid. They are not literate and do not possess the mechanical skill of reading and writing. But I have no doubt in my mind that they are able to take measure of their own interest and also of the interests of the country at large if things are explained to them.
78. Learned Counsel for the petitioner also lost sight of the observation by Dr. Rajinder Prasad, who later became President of India, which is made at page 989. The same is to the following effect:.In fact, in some respects, I consider them to be even more intelligent than many a worker in a factory, who loses his individuality and becomes more or less a part of the machine which he has to work. I have, thereforee, no doubt in my mind that if things are explained to them, they will not only be able to pick up the technique of election, but will be able to cast their votes in an intelligent manner and I have, thereforee, no misgivings about the future, on their account. I cannot say the same thing about the other people who may try to influence them by slogans and by placing before them beautiful pictures of impracticable programmes. Nevertheless, I think their sturdy commonsense will enable them to see things in the right perspective. We can, thereforee, reasonably hope that we shall have legislatures composed of members who shall have their feet on the ground and who will take a realistic view of things.
79. Dealing with these aspects of the argument which has been raised before us by the Learned Counsel for the petitioner, we must quote the speech of Dr. B.R. Ambedkar in the Constituent Assembly which is at page 37 of Constituent Assembly Debate Book No. 2 Vol.VII. The same is reproduced below:
One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when the first written Constitution was drafted. It has been followed by many countries reducing their Constitutions to writing. What the scope of a Constitution should be has long been settled. Similarly what are the fundamentals of a Constitution are recognised all over the world. Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country. The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution. I have shown what is new in the Draft Constitution and I am sure that those who have studied other Constitutions and who are prepared to consider the matter dispassionately will agree that the Drafting Committee in performing its duty has not been guilty of such blind and slavish imitation as it is represented to be.
80. Dr. Ambedkar was addressing to the comments of a member who had accused the members of the Constituent Assembly of inadequate studying or copying Constitution or borrowing the Constitution from the different countries. Taking into consideration the totality of Constituent Assembly debate, it cannot be said that the Constitutional framers did not h ave enough education to lay down the parameters of citizenship as they were educated in England where the concept of citizenship was not known in the sense it was known in United States of America.
81. We must bear in mind that the founding fathers of our Constitution studied in England or under English education system but to say that they did not have the concept of a nationality or citizenship as they were colonial subject would tantamount to belittling the knowledge and wisdom of the founding fathers of the Constitution. They all had studied various political philosophies, political thinkers, the Modern Absolutism of Machavalli, the Religious Tolerance of Jaen Bodin, the Modernised Theory of Natural law of Cicero from the Republic of Pluto and the Political Ideals of Aristotle to the Philosophy of Locke and the Re-discovery of the Community by Rousseau, the Convention & Tradition of Hume & Burke, the Scientific Socialism of Marx and Fascism and National Socialism. thereforee, in order to understand the burning desire of the founding fathers of the Constitution, we must understand that when Article 5 has been inserted it was for a purpose to give citizenship and identify it to its citizens at that time and after considerable debate they left it to the wisdom of Parliament to deal this sensitive issue of citizenship by elected members in a democratic manner to grant or not to grant either civic or political rights by making a provision under Article 11 of the Constitution of India. This itself shows that it was a well considered decision and that is how the Citizenship Act, 1955 came into existence after five years of coming into force of the Constitution of India. thereforee, there is no merit in the contention of the petitioner that 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 non-est.
82. While interpreting the Constitution one has to take into consideration historical developments, legislative developments, constituent assemblies debates and any enactment preceding the constitutional provisions. But can it be said that words are ambiguous in the supreme statute i.e. the Constitution of India and any other meaning to those unambiguous words can be given by the court? And for this we have to analyze the scheme of the Constitution with regard to the provisions of citizenship under Part II of the said Constitution. Article 5 deals with citizenship at the commencement of the Constitution. What Mr. Lekhi has contended is that it was because of the fact that Article 5 of the Constitution constituted a nation and the emergence of the nation as a community of citizens is a political entity or politically organized society and, thereforee, the nations may have citizens who are not nati. But nati have different role to play to the exclusion of others who are not foreign origin. Is such a definition or interpretation permissible under our statute? The framers of the Constitution took ample care of defining citizenship bestowing citizenship even at the time of commencement of the Constitution and did not use the word person born in the territory of India in the main clause of Article 5, but deliberately chose in the contradistinction the word domicile in the territory of India. As a matter of fact, it was other cases of persons who were considered to be the citizen of India pursuant to Article 5(a), who were born in the territory of India. But the paramount basis on which a person was to be considered as a citizen of India was that he had his domicile in the territory of India. The example given by Mr. Lekhi about the US Constitution and the provisions thereof were also before the Constituent Assembly.
83. This argument does not support the contention of the petitioner. The US Constitution was also before the makers of the Indian Constitution. thereforee, in spite of having American Constitution before them. If the framers of our Constitution have not borrowed the concept of citizenship from the US Constitution it was a deliberate exclusion by the framers of our Constitution to the concept of natural born citizen. thereforee, the provisions of the US Constitution regarding citizenship cannot be read into our Constitution for interpreting Article 5 of the Constitution or the Citizenship Act in this regard.
84. Once the existence of written Constitution which was before the Constituent Assembly and its Draftsmen and the Draftsmen have not incorporated the concept of a natural born citizen under the Citizenship Act would show the desire of the Constitutional framers not to have a natural born person as a pre-condition for grant of citizenship.
85. The argument of the petitioner that Article 11 in the Constitution cannot derogate the power of Article 5 is without any basis. From the plain reading of Article 11 it is manifestly clear that all the provisions from Article 5 to Article 10 shall not derogate the power of Parliament to make any provisions with regard to acquisition and termination of citizenship and all other matters relating to citizenship. In its ingenuity the petitioner contended that the phrase 'all other matters relating to citizenship' only deals with acquisition and termination of citizenship. From the plain and simple reading of Article 11 the words used 'acquisition and termination of citizenship and all other matters' make it clear that not only matters pertaining to acquisition and termination of citizenship but for all other matters relating to citizenship, the power of Parliament was unbridled and Parliament could legislate on all such matters. As a matter of fact, after a careful reading of the words occurring in Article 11 of the Constitution of India 'all other matters relating to citizenship' power was given to the Parliament and if Parliament in its wisdom wanted foreign born person not to hold an executive or a public office i.e. an office of a political party, the Parliament was not bereft of the power not to legislate on that aspect of the matter. From the conjoint reading of Chapter II relating to citizenship there is not an iota of doubt that what the Constitutional framers intended was to give unbridled power to Parliament to make laws in relation to citizenship, thereforee, to go to any other Constitution or to commentary would be totally out of context. Even if we analyze in cross contextual use of statutory provisions we have to bear in mind that Parliament pursuant to Article 11 of the Constitution of India read with Article 246 Entry 17 in 7th Schedule enacted the Citizenship Act, 1955. The scope of Articles 5 to 11 of the Constitution dealing with citizenship has been discussed by a Constitution Bench in Izhar Ahmad Khan v. Union of India  Supp.3 SCR 235. 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. Citizenship Act, 1955 for the first time brought the concept of a person born in India after 26th January, 1950. That person acquired citizenship by birth and thereafter there were other provisions of the Citizenship Act which we may not dilate. Citizenship Amendment Act, 1957 was enacted, thereafter came the Repealing and Amending Act, 1960, thereafter the Citizenship Amendment Act, 1985 where in order to give effect to certain provisions in the Memorandum of Settlement relating to the foreigners issue in Assam (Assam Accord), the Citizenship Act was amended. After Section 6, Section 6A was inserted by the Amendment Act. Sub-Section 4 of Section 6A reads as under:
(4) A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 and the obligations connected therewith), but shall not be entitled to have his name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said period of ten years.
86. Thereafter the Citizenship Act, 1986 was enacted. Thereafter in view of large number of persons of Indian origin having entered the territory of India from Bangladesh, Sri Lanka and some African countries and in view of the fact that they were residing in India, Parliament made amendment to Citizenship Act relating to the grant of Indian citizenship more stringent in the proposed Act and made the following changes:
(i) under the existing provisions, every person born in India on or after the 26th day of January, 1950, shall be a citizen of India by birth. With a view to preventing automatic acquisition of citizenship of India by birth, it is proposed to amend the Act to provide that every person born in India after the commencement of the amending Act will become a citizen of India by birth only if at the time of his birth either of his parents is a citizen of India;
(ii) under the Act, certain categories of persons may apply for citizenship by registration. One such category is those persons of Indian Origin who are ordinarily resident in India and have been so resident for six months immediately before making an application for registration. Another category is women who are, or have been, married to citizens of India. These provisions are proposed to be made more stringent by providing that a person would be eligible for citizenship by registration only if he is ordinarily resident in India and have been so resident for five years immediately before making an application for registration. It is also proposed to change the word 'women' by 'persons' in the latter category so that the eligibility of citizenship through marriage to citizens of India now admissible to women only is extended to men also.
87. And for that reason the Citizenship Amendment Act, 1986 came into force. Then the Citizenship Act was amended in 1992 with the following objective:
India is a signatory to the Convention on elimination of all forms of discrimination against women adopted by the General Assembly of the United Nations. Article 9(2) of the Convention requires that the State Parties shall grant women equal rights with men with respect to the nationality of their children. Section 4(1) of the Citizenship Act, 1955 provides that a person born outside India or on or after 26th January, 1950 shall be a citizen of India by descent if his father is an Indian citizen at the time of his birth. With a view to eliminate discrimination against women in respect of citizenship of their children and in order to bring the provisions of the Citizenship Act, 1955 in conformity with Article 9(2) of the aforesaid Convention, it is proposed to amend the said Act so as to provide that a person born outside India or on after the coming into force of the provisions of the Bill shall become a citizen of India by descent if either of his parents is a citizen of India at the time of his birth.
88. Then came the Citizenship Amendment Act, 2003 which also introduced the concept of overseas citizenship. By the said amending Act in 2003 the Parliament in its wisdom laid down Section 7B in the following terms:
7B. (1) Notwithstanding anything contained in any other law for the time being in force, an overseas citizen of India shall be entitled to such rights [other than the rights specified under sub-section (2)] as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(2) An overseas citizen of India shall not be entitled to the rights conferred on a citizen of India --
(a) under Article 16 of the Constitution with regard to equality of opportunity in matters of public employment;
(b) under Article 58 of the Constitution for election as President;
(c) under Article 66 of the Constitution for election as Vice-President;
(d) under Article 124 of the Constitution for appointment as a Judge of the Supreme Court;
(e) under Article 217 of the Constitution for appointment as a Judge of the High Court;
(f) under Section 16 of the Representation of People Act, 1950 in regard to registration as a voter;
(g) under Sections 3 and 4 of the Representation of People Act, 1951 with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;
(h) under Sections 5, 5A and 6 of the Representation of the People Act, 1951 with regard to the eligibility for being a member of the Legislative Assembly or a Legislative Council, as the case may be, of a State;
(i) for appointment 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 that behalf specify.
(3) Every notification issued under sub-section (1) shall be laid before each House of Parliament.
89. Whilst moving the Bill the Statement of Objects and Reasons were as follows:
STATEMENT OF OBJECTS AND REASONS
The Citizenship Act, 1955 which provides for the acquisition of citizenship, after the commencement of the Constitution by birth, descent, registration, naturalization and incorporation of territory under certain circumstances, and also provides for the termination and deprivation of citizenship, was among those 109 Central Acts identified for a review by the Commission on Review of Administrative Laws constituted by the Central Government under the Chairmanship of Shri P.C.Jain in 1998. Subsequently, the High Level Committee on Indian Diaspora constituted by the Central Government, inter alia, recommended the amendment of this Act to provide for the grant of dual citizenship to persons of Indian origin belonging to certain specified countries. The Central Government has accordingly decided to make provisions for the grant of dual citizenship and has taken the opportunity of introducing a scheme for the compulsory registration of every citizen of India, and for this purpose to issue national identity cards.
2. The above objects are proposed to be achieved, inter alia, by amending provisions of the Citizenship Act so as to --
(i) make acquisition of Indian citizenship by registration and naturalization more stringent;
(ii) prevent illegal migrants from becoming eligible for Indian citizenship;
(iii) simplify the procedure to facilitate the re-acquisition of Indian citizenship by persons of full age who are children of Indian citizens, and former citizens of independent India;
(iv) provide for the grant of overseas citizenship of Indian to persons of Indian origin belonging to specified countries, and Indian citizens who choose to acquire the citizenship of any of these countries at a later date;
(v) provide for the compulsory registration and issue of a national identity card to all citizens of India;
(vi) enhance the penalty for violation of its provisions, as well as the rules framed under it; and
(vii) to omit all provisions recognizing, or relating to the Commonwealth citizenship from the Act.
3. The Bill seeks to achieve the above objects.
The Citizenship Act was further amended by the amending Act 2005.
90. We have reproduced the chronological order of the amendments of the Citizenship Act in order to show that Parliament has been responding to the need of the time by enacting and bringing in suitable legislation. Parliament consciously as per the amending Act 65 of 1985, Section 6A(4) laid down that although a person falling in that category shall be a citizen but will not be entitled to have his name included in any electoral roll for any assembly or Parliamentary constituency before expiry of the said period of 10 years. Similarly, while granting rights to the overseas citizens of India the Parliament in its wisdom 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.
91. From the contextual reading of all the amending Acts as has been discussed above either pursuant to Assam Accord or on account of others acquiring Indian citizenship from the neighbouring countries or for grant of overseas citizenship, Parliament has carved out a category and class of citizens who are entitled to hold a public office or an executive office and restricted others from holding such officers or posts. When the Parliament in its wisdom has enacted the laws in this field court cannot interpret a law to mean that the legislative intention or the intention of the framers of the Constitution was that only a person who was born in India can hold an elective office or an office in a political party. That would amount to legislating in the guise of interpretation of the statute. As a matter of fact, interpretation of statute and laws pre-supposes the existence that the Parliament has taken into consideration all the relevant laws before enacting or amending a statue. thereforee, to say that it was only pursuant to Article 5 of the Constitution if a person was accorded citizenship of the country, he/she will have political rights as well as civic rights and those who have acquired citizenship pursuant to Citizenship Act, 1955 will only have civic rights and not political rights is mis-conceived.
92. Democracy and democratic institutions have been the corner stone of the scheme of Constitution. Democracy cannot thrive in the atmosphere of intolerance. Sine qua non of democracy is tolerance, tolerance to listen to dissent. In the same way no one can arrogate the right to oneself that the proposition propounded by one is the only and correct proposition. That will be anti-thesis of democratic temperament and fraught with disastrous consequences. Such tendencies will adversely affect the rule of law. We may find sympathy with the petitioner that he wishes that the law should be that a foreign born person may not be eligible for political rights but while interpreting the Constitution or the Citizenship Act we cannot lay down and give other meanings which the Parliament has not intended to do. thereforee, the questions as formulated above has to be answered in the negative.
93. Learned counsel for the petitioner while contending that elections to the Lok Sabha and State Legislature could not have been contested by an person who was not a citizen in terms of Article 5 of the Constitution of India does not hold good, because of the Citizenship Act which came into force in 1955, same was enacted by Parliament while exercising constitutional mandate of Article 11 of the Constitution of India. Such interpretation would make the Citizenship Act, Representation of Peoples Act redundant. The qualification and eligibility to contest election is a part of the statute, when no such restriction has been placed in the statute to restrict this class of citizen and if the interpretation of Article 5 is given in the manner as expounded by the petitioner, then Article 5 of the Constitution will make all other statute regarding citizenship non-est and such an interpretation will be repugnant to the scheme of Constitution itself. We find that Article 5 of the Constitution has no overriding application in this field.
94. Reliance placed by Mr. Lekhi on P.C. Joshi's case (supra) to buttress his arguments about effect in Article 11 of the word 'notwithstanding' will not help his case as in that case the Court was considering sub-section 13 of Section 198 of Cr.P.C. which provided that the provision of this Section shall be in addition to and not in derogation of those of Section 198 and in that context the Court held that the clause was enacted with a view to state ex abundanti cautela that the right of a party aggrieved by publication of a defamatory statement to proceed under Section 198 is not derogated by the enactment of Section 198. The Court further held that the expression 'in addition to' and 'not in derogation of' means the same thing.
95. Reliance placed by the learned Additional Solicitor General on Article 16, although is not of any help to him as the said Article only deals with equality of opportunity in the matters of public employment yet Article 16 is a spread of Article 14 hence non-arbitrariness is a part of Article 16. Article 16 protects all citizens against discrimination.
96. In Union of India v. Deoki Nandan Aggarwal : 3SCR873 , this Court observed:
It is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
97. What would be the purposive authoritative adjudication of the intent and scope of Article 5 read with Article 11 of the Constitution, the observation of the Supreme Court in doing so would be relevant. In Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors. : 1SCR221 , Supreme Court observed:.While examining a particular statute for finding out the legislative intent it is the attitude of Judges in arriving at a solution by striking a balance between the letter and spirit of the statute without acknowledging that they have in any way supplemented the statute would be the proper criterion. The duty of Judges is to expound and not to legislate is a fundamental rule. There is no doubt a marginal area in which the courts mould or creatively interpret legislation and they are thus finishers, refiners and polishers of legislation which comes to them in a state requiring varying decrees of further processing. But by no stretch of imagination a Judge is entitled to add something more than what is there in the statute by way of a supposed intention of the legislature. It is, thereforee, a cardinal principle of construction of statutes that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed....
98. It is a cardinal principle of rule of interpretation of the statute that when the language of a statute is fair and clear then inconvenience or hardship are no consideration for refusing to give effect to that meaning. In 1844 (11) C & F 85: 8 ER 1034 (HL) it was held that if the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the law giver.
99. In Emperor V. Benoari Lal Sarma it was held that this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results injurious or otherwise which may follow from giving effect to the language used.
100. In Kanai Lal Sur v. Paramnidhi Sadhukhan : 1SCR360 , Gajenderagadkar, J. spoke for the Court in the following words:
If the words used are capable of one construction only then it would not be open to the Court to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy.
101. Nationalisation was the basis of the arguments advanced by the petitioner that a person who is foreign born will not have the ethos, cultural background, the philosophy, which would be possessed by a son of soil, has forgotten that it is the joint willingness of the persons, natural born or foreign born who owe their allegiance, whatever cause they profess and are involved with the political philosophy of a State that creates a national and a national is entitled to live with all such persons who owe their allegiance to the State.
102. One must not forget the size of India and the diversity of its people. This country has nearly as many people as all of Africa and Latin America and people as much of dynamic diversity as is seen in all Europe. In the cross contextual sense if the founding fathers of the Constitution have not taken into consideration the concept of a natural born person for according citizenship, then by no purposeful interpretation this Court will hold that a foreign born person is entitled to civic rights and no other rights. When statute does not put limitations on the exercise of a power of a citizen this Court will have no jurisdiction to hold so or to interpret in a manner to impose restriction on a foreign born person not to exercise those rights which are otherwise available to him under the statute or the provision of the Constitution.
103. There is no force in the arguments that no effective proposals were received by the people to the draft provisions of the Constitution. The members of the Constituent Assembly were the representatives of the Indian people who had led the people against colonialism. To say that the framers of the Constitution or the members of the drafting committee of the Constitution were ignorant to the urges and aspiration of Indian people is to put behind the wisdom, sagacity and hard labour put in by the framers of our Constitution to a nullity.
104. In view of the aforesaid discussion there is no force in the arguments of the petitioner that a foreign born person is not entitled to hold a public office and the political party in which one is a member or an office bearer is liable to be de-registered. The whole premises of the argument of the petitioner is based on the definition of citizen which we have held, cannot take into consideration any other meaning which is repugnant to the definition as mentioned in the Citizenship Act read with other relevant statutes in this regard.
105. If one has to follow the liberal and humane concept of ancient Indian philosophy, then what our scriptures have taught us is 'VASUDEV KUTUMBKAM', i.e. the whole planet earth is a family. When this is the ethos of this nationalon and our people which has such benevolent concept then any narrow parochial meaning de hors the provisions of law would amount to holding what is not even in the philosophy of this soil also.
106. There is no merit in this petition and the same is hereby dismissed.