Friday, April 3, 2009


Unfortunately, the debate in Indian political circles has been confined to a narrow topic. The issue of holding of posts in Government by foreign-born persons is indeed a small part of the overall subject of grant of citizenship to foreigners. Politicians like Sharad Pawar, PA Sangma, Jayalalitaa, have raised the narrow issue with an eye on Sonia Gandhi. But in the process they have missed the larger problem. 2
Provisions regarding citizenship are contained in Part II (articles 5 to 11) of the Constitution of India. Article 5 lays down the conditions for citizenship at the commencement of the Constitution. Articles 6 and 7 deal with migrants from and to Pakistan. Article 8 is regarding certain persons of Indian origin residing outside India. Article 9 is about persons voluntarily acquiring citizenship of any foreign state. Article 10 says, "Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen". Article 10 gives the power to the Parliament to make any law for grant or termination or regulation of citizenship whether acquired through provisions of the Constitution or otherwise. 2
Article 11 clarifies it further by saying, "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 matters relating to citizenship." Parliament has exercised the power under article 11 by enacting Citizenship Act, 1955. 2
In 1955, when the Act was passed, it would have been difficult to imagine that the country would face a problem of immigrants. British had just left the country and India was enjoying its newfound freedom. Surprisingly, no one even considered the possibility that immigrants could repeat history and become rulers just as British had become two centuries ago. Taking precautions against such a danger was never even contemplated. Not surprisingly, Citizenship Act, 1955 demonstrates a casual attitude with emphasis on procedure and formalities. 2
Five decades later, India faces severe problems from immigrants. Terrorism in Jammu-Kashmir and other parts of the country is caused by immigrants, or if you prefer infiltrators. Demographic profile has undergone a significant change in many districts of West Bengal and North Eastern states. Agitations against immigrants in North Eastern states are now almost three decades old. The number of Bangladeshis staying in large cities, like Delhi, Mumbai and Kolkata, runs into millions. Pakistan has been able to use a large number of its citizens illegally staying in India for intelligence operations and for subversive activities. 2
It will not be an exaggeration to say that foreigners are posing a serious threat to internal security as well as to the basic constitutional structure of the country. An Italian born woman becoming Prime Minister is just a tip of the proverbial iceberg or pyramid. One cannot say that the tip is insignificant. But, it is necessary to go to the root of the problem instead of merely aiming for some cosmetic changes. 2
Discussion of the problem in media has concentrated on whether foreign-born citizens should enjoy the same rights as natural-born ones. Birth is a biological act. Place of performance of this act has hardly any influence on a person's psyche. For the sake of legal convenience, some importance has been ascribed to place of birth in laws relating to citizenship. But that can be no justification for treating it as the only important factor. 2
International law has a concept of domicile, which is not solely based on the place of birth. Domicile is based on the intentions and mind of the person concerned. Sankaran Horindan v. Lakshmi Bharti (1964, Ker. 244) illustrates the concept of domicile. One Krishnan, domiciled in India (Kerala) went to England for higher education in 1925. After some time his parents declined to give him any further financial support. With the help of an English friend, Miss Hopeworth, he completed his studies in 1939 and set up his private practice in medicine in Sheffield. He earned a fortune. He purchased a mansion in Sheffield. He also served in British Health Service. Krishnan lived in England for 30 years till his death. During this period, he did not come to India even once. But in letters that Krishnan wrote to his friends and relatives in India, he always expressed his intention of returning to India. Based on this fact, Kerala High Court came to the conclusion that Krishnan was domiciled in India. 2
It is an accepted principle of law that one must prove one's domicile in the host country before one becomes eligible for acquiring citizenship of that country. Simultaneously, one must also prove one's renunciation of domicile of the country of origin. Most countries prescribe tests and qualifications to ensure that the person is truly domiciled in the host country. Often, countries exercise such high levels of caution in this respect that there are charges of racism or of having a fortress-mentality. 2
India, on the other hand, goes to the other extreme. There is no attempt to determine the level of naturalization of a foreigner in the country. India has one of the simplest systems for grant of citizenship. There are no qualifications (relating to psyche or intentions) prescribed and almost everyone who applies is eligible. The applicant need not have even a rudimentary knowledge of Indian Constitution and laws. 2
There are two main routes available for acquisition of Indian citizenship: (a) under section 5, by registration and (b) under section 8, by naturalization. Naturalization route requires a stay of nine years and is available to citizens of some countries only. For all others the route is by way of an application in a prescribed form to the Collector of the district. The form does not make an attempt to judge the intentions of the applicant in acquiring the status of citizen. 2
The conditions for naturalization under Schedule 3 prescribe, "that he has an adequate knowledge of a language specified in the Eighth Schedule to the Constitution." No such condition is specified for citizenship by registration. There is no requirement of having some knowledge of the traditions and culture of India. The Act (as well as the rules made there under) does not even make it mandatory for the authorities to verify the antecedents of the applicant in the country of origin. Surprisingly, the applicant is not even required to declare his or her intention to settle and reside in the country permanently. 2
Sonia Gandhi, when she applied for Indian citizenship, did not have a rudimentary knowledge of any Indian language. No comments can be made about her knowledge of Indian culture, traditions or even constitution. The country till today does not know if Sonia has made up her mind to be a part of India permanently. In other words, her domicile may still be in Italy. She may well be holding property in Italy and may also be having her loyalty towards Italy. The irony is that such a person can be granted citizenship under Indian law. 2
There is nothing under Citizenship Act that prevents a person with wrong intentions to enter into a marriage of convenience in India and apply for citizenship. The danger that this poses is a bit too obvious and is surely not far-fetched in a country that has seen more than ten million immigrants enter in the last two decades. 2
It is high time that a comprehensive review of The Citizenship Act is carried out. The Act was passed in 1955 and was amended in 1986 and 1992. The Parliament can modify it again and make it necessary for an applicant to prove his / her domicile in India. The modified law can also provide for review of all cases of persons to whom citizenship might have been granted in the past. Citizenship of anyone found ineligible may well be terminated. There need be no doubt about the power of Parliament to make law for termination of citizenship. Article 11 of Constitution gives this right to Parliament in unequivocal terms. 2
Article 84 of the Constitution mandates that a person shall not be qualified to be chosen to fill a seat in Parliament unless he fulfils the conditions prescribed therein, one of them being that he must be a citizen of India.
Part II of the Constitution containing Articles 5 to 11 pertain to citizenship of India.
Article 5 declares that at the commencement of the Constitution, every person who has his domicile in the territory of India and who was born in India, or either of whose parents was born in India or who has ordinarily been resident in India for not less than five years immediately preceding such commencement shall be a citizen of India.
Article 6 conferred the right of citizenship to certain persons who had migrated to India from Pakistan.
Whereas Article 7 takes away the right of citizenship of certain migrants to Pakistan.
Article 8 confers the right of citizenship to certain persons of Indian origin residing out of India.
Article 9 declares that persons voluntarily acquiring citizenship of a foreign state cannot be Indian citizens.
Article 10 provides for continuance of the rights of citizenship.
Whereas Article 11 confers power on Parliament to regulate the right of citizenship by law.
It will be noticed that the Constitution does not expressly recognise acquisition of citizenship by naturalisation. Rather, Entry 17 List I of the Seventh Schedule to the Constitution, on which Parliament has exclusive powers to make laws, relates to "Citizenship, Naturalisation and Aliens" thereby distinguishing between "citizenship" and "naturalisation". The Constitution (Sixteenth Amendment) Act, 1963 did not alter this concept of citizenship but merely added the prescribed oath to be taken by a Member of Parliament.
The constitutional omission of "naturalisation" as a means to acquiring citizenship of India assumes further significance in the light of the constitutional history on the issue. It will be recalled that prior to the enactment of the British Nationality Act, 1948 statutes maintained the distinction between natural-born British subjects and British subjects by naturalisation.
The British Nationality Act, 1948 which was enacted after a general consensus was reached within the Commonwealth countries, including India, and which repealed all previous United Kingdom legislation on the subject, prescribed therein the method of giving effect to the principle that each of the self-governing countries of the Commonwealth should, by its own legislation, determine who are its citizens and such citizens should be declared British subjects.
Accordingly, the 1948 Act abolished, by its Sections 31 and 34(3), the distinction between "citizenship" and "nationality" and thus, at the time of commencement of the Constitution, all subjects of the British Commonwealth possessed a common British nationality irrespective of whether they were naturalised citizens or natural-born citizens.
The framers of our Constitution were alive to the provisions of the British Nationality Act, 1948 providing for different categories of citizenship - namely, by birth, descent, registration and naturalisation. Yet our Constitution, while expressly recognising acquisition of citizenship by birth, descent and domicile does not provide for citizenship by "naturalisation".
There is yet another aspect to the matter. Under Article 102(d) of the Constitution, a person shall be disqualified from being chosen or being a member of either House, if he is not a citizen of India, or has voluntarily acquire-ed citizenship of a foreign state or is under any acknowledgment of allegiance or alliance to a foreign state.
Under the Italian Criminal Code, the status of a natural-born citizen in Italy is indelible and the birth of Sonia Gandhi in Italy by itself is acknowledgment of her continued allegiance to that country notwithstanding her stated renunciation of Italian citizenship. Such acknowledgment would be a disqualification under our Constitution for the membership of Sonia Gandhi to Parliament.
It therefore becomes evident that the concept of citizenship embodied in our Constitution does not include acquisition of citizenship by naturalisation, particularly when it comes to membership of Parliament. While it is true that Section 6 of the Indian Citizenship Act, 1955 recognises "naturalisation" as a mode of acquiring citizenship, there is nothing in the said Act to indicate that such naturalised citizen can hold public office under the Constitution.
In fact, Section 10 of the said Act empowers the central government to take away the citizenship of certain citizens specified therein, which include naturalised citizens but excludes citizens by birth, descent and so on. Hence, the said Act maintains a distinction between a naturalised citizen and other citizens.
Even otherwise, a statute cannot obviously enlarge the scope of the aforesaid constitutional concept of citizenship or be used to circumvent the provisions of Articles 84 and 102 of the Constitution.
After all there was no provision in the Constitution, which would have allowed a person like Sonia Gandhi to become Citizen of this country. Provisions mentioned in Article 102 and 84 were made in view of keeping the provision of constitution of that time. Thus the claim that Sonia Gandhi is a naturalised citizen, and therefore disqualified from holding a constitutional post in India is absolutely correct.
It is Sonia Gandhi's latest gender gem: ‘‘the day I became the daughter-in-law of Indira Gandhi's house, I became an Indian. The rest is all technical.'' By that logic, one Louis de Raedt can be considered to have had even better credentials to be regarded as an Indian. 3
Monsieur Raedt, held a Belgian passport but, till his day of reckoning in 1987, he had been continuously in India since 1937! By an order of the Government of India dated 8th July 1987, his request for further stay in India was rejected and he was ordered to leave the country. On an appeal against this order, our Supreme Court ruled that Raedt had not become a citizen of India and therefore had no right "to reside and settle in India". 3
''He must prove,'' said the court, ''that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence, alone, unaccompanied by the state of mind, is insufficient.'' Incidentally, the ''secularists,'' the Vatican and the Vishwa Hindu Parishad alike would be interested to learn that Louis de Raedt was engaged in Christian missionary work. 3
Sonia Gandhi was given ''acquired'' citizenship under the Indian Citizenship Act 1955. She was not given citizenship under Article 5 of the Constitution that relates to those who were born in India or who have parents either of whom was born in India or who were ordinarily resident in India for at least five years immediately preceding the commencement of the Indian Constitution.
Under the Indian Citizenship Act, there are three categories of Indian citizens -- citizens by birth, citizens by registration and citizens by naturalisation. I am an Indian citizen, so is Sonia Gandhi. But I am an Indian citizen by birth, which means nobody can deprive me of my citizenship. On the other hand, Sonia Gandhi is a citizen by registration, which means that under Indian laws, her citizenship, like that of those who are citizens by naturalisation, can be taken away and she can be deported.
Sonia Gandhi might well claim that she is an Indian till her last breath, but that does not mitigate the conditions and restrictions governing her Indian citizenship. Her citizenship by registration can be taken away under Section 10 of the Citizenship Act if the Government of India is satisfied that (a) the registration was obtained by means of fraud or concealment of material facts; (b) the registered citizen is disloyal or disaffected towards the Constitution of India; and, (c) the registered citizen raided or communicated with an enemy during war.
Now, the point about her citizenship and whether or not that entitles her to the prime minister of India's office, if, seen from a narrow, legal perspective, there is nothing that prevents Sonia Gandhi from assuming charge as prime minister of India. The Constitution of India, unlike the constitutions of many Western and Asian countries, puts no such bar on her. Unlike the USA, Finland, Germany, Thailand or Singapore, India does not insist that the aspirant for the job should be a natural born citizen.
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