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DELHI HIGH COURT JUDGMENT ON PETITION OF RMMIN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision : November 24, 2006

WP (C) No. 2960/1999 and CM 9837/2005

24.11.2006

REPORTED

Rashtriya Mukti Morcha, through its President, Ravinder Kumar,
37, Angad Nagar Extn. Delhi-110092. ......... Petitioner
through : Mr.P.N. Lekhi, Senior Advocate, with Mr.Vijay Chaudhary and Mr.Ravinder Kumar, Advocate.
Vs.
(1) Union of India,
through Secretary,
Ministry of Home Affairs,
Central Secretariat, New Delhi-110004.

(2) Election Commission of India,
through Secretary of the Commission,
Nirvachan Sadan, Ashok Road,
New Delhi-110001 ......... Respondent.
through :Mr.P.P. Malhotra, Additional Solictor General,
with Mr.Rajeeve Mehra, Mr.Arijeet Ganguli, Mr.Chetan Khurana, Ms.Monica Garg, Mr.Vineet Malhotra, Mr.Shailendra Sharma and Mr.Gaurav Sharma for respondent no.1/UOI.
Mr.P.R. Chopra for respondent no.2.
Mr.K.M. Khan for Ms.Sonia Gandhi.

CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR.JUSTICE KAILASH GAMBHIR

1. Whether reporters of Local papers may be allowed to see the judgment?
2. To be referred to the reporter or not ?
3. Whether the judgment should be reported in the Digest?

Vijender Jain, ACJ.

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) and (ii) no longer survive the petitioner is insisting on prayers (iii), (iv) and (v) of the writ petition.
Mr.P.N. Lekhi, learned senior advocate for the petitioner has very forcefully argued the matter confining himself to prayers (iii), (iv) and (v) of the writ petition. Before hearing the present matter, counsel from both the sides had agreed that they would address arguments not targeting any particular individual be it the President of the ruling party in power or anybody else.
Earlier the petitioner had sought direction for impleadment of Smt. Sonia Gandhi as respondent no.3 and Indian National Congress as respondent no.4 and the said application was dismissed after Mr. Lekhi had contended that the issues raised by him in the petition concerns the matter in general and not against particular individual or particular political party as regards the controversy raised in the petition whether a non-naturally born citizen can hold an elective office or any public office. It would be relevant to reproduce the order passed by this Court on 16.5.2006 in CM 6057/2004 through which the impleadment of Smt.  Sonia Gandhi and Indian National Congress was sought :-
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 impleaded as a respondent in the writ petition. Therefore, this application is dismissed.?

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.
The contention of Mr.Lekhi is that the concept of citizenship is a foundational preamble of any social politically organised 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.

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, therefore, 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. 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, therefore, 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. 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. 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.

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 cherished privilege 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.

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.
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.
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...?
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.
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 Vs. Cochin University and others. AIR 1996 SC 1011 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
seemless web 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.?
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.?
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.
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.
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..?
Mr.Lekhi has contended that Hari Shankar Jain Vs. Sonia Gandhi (2001) 8
SCC 233 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, therefore, the position as emerged was that if a person is
alleged to be not a citizen of India and, therefore, 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.
Quoting Constitutional Government and 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....?
In the above context it was contended that Constitution is not a static
document. It requires dynamic interpretation and, therefore, 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. Therefore, 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.
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 and 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.
It was contended by learned counsel for the petitioner that paragraph 2
(h) of The Election Symbols (Reservation and 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 29 A of the
Representation of People Act, 1951.

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.
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 and 6 of the Citizenship Act do not answer the questions which
are so fundamental in view of the historical setting of the country and,
therefore, 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.?
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.?
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. Vs. The State of Uttar Pradesh AIR 1961 SC 387 :-
?It is manifest that by the non-obstante clause, ?notwithstanding
anything contained in this Code? in sub-s. (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 S.198 is one of those provisions.?

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. Therefore, it was contended that insofar as Sections 5 and 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.
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 7 A and 7 B 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.
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, therefore, 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. Therefore, 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 Vs. State of Haryana and Ors. (2003) 5 SCC 622
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.?

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.?
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.?

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.?
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. Therefore, 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. Therefore, 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.
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...?

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.
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.?

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.
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 Vs. M.Tarkunde AIR 1982 SC 149 where it was
observed as follows :-



?............ The Court must not allow its process to be abused by politicians
and others 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...............?
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.
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').?
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, therefore, 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.
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,
therefore, 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.


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.?


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'?.
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 legla sense, that is properly the domicile of aperson where he
has his true fixed permanent home and principal establishment, and to which,
whenver he is absent, he has the intention of returning.?

Jowitt's Dictiontary of 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)

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.?


Mr.Malhotra place reliance on Kedar Pandey Vs.Narain Vikram Sah 1965 (3)
SCR 793 :-

?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 domicil of
origin. We are of the view that te only intention required for a proof of a
change of domicil is 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 domicil of origin has voluntarily fixed the habitation of himself and his
faily in the new country, not for a mere special of temporary purpose, but with
a present intention of making it his permanent home.?
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

Vs.Geoghegan 1878 Vol.IX Chancery Division 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 juris et de jure; a presumption not to be rebutted by
declarations of intention, or otherwise than by actual removal.?

In Central Bank of India Vs. Ram Narain 1955(1) SCR 697, 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 therefrom......?
The definition of domicile by Wharton's Law Lexicon 14th Edition was
approved by the Supreme Court in D P Joshi Vs. State of Madhya Bharat and anr.
1955(1) SCR 1215. In Craignish v. Hewitt 1892 (3) Chancery Division 180 to the
same effect was also cited by the learned counsel for the respondent.
Quoting a nine Judge Bench decision of the Supreme Court in The State
Trading Corporation of India Ltd. V/s. The Commercial Tax Officer 1964(4) SCR
99, 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, therefore, 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.?
It was, therefore, 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.
Mr.Malhotra further contended that political rights have been secured to
all citizens of the country in the preamble of the Constitution itself and,
therefore, no discrimination can be made with one class of citizen and others
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.?
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.
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 Vs. State of
West Bengal (1973) 1 SCC 451, 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.?
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. Vs. Union of India AIR 1991 SC 1886.
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.
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.?

Reliance was also placed in this regard on Fothergil Vs. Monarch Airlines
Ltd. 1980 2 All ER 696 HL, Pepper Vs. 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...?
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.?
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.?
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, therefore, a person although may be a
citizen and may enjoy civic rights but not political right.
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. Therefore, 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.
Learned counsel for the respondent contended that the framers of our
Constitution were well aware of the ground realities and, therefore, 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/s. Union of India [1962]
Suppl.3 SCR 235 :-
?..........That takes us to Art.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 Art.10, Ar.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 Art.5 to 10 of Part II. In this connection, it is
important to bear in mind that Art.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. Therefore, 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.?

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 favour 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 favour 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.?
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 anr. Vs.Hari Prakash and ors.
(2001) 8 SCC 61, Supreme Court observed as under :-
?........Thus, the Act has not remained static but is catching up with the
times. Therefore, what is not included by the legislature cannot be undone by
us by adopting the principle of purposive interpretation.?

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. Vs. Nanded
Parbhani Z.L.B.M.V. Operator Sangh 2000 (2) SCC 69.
Mr.Malhotra laid stress on Suresh Seth V. Commr. Indore Muncipal Corpn.
and Ors. (2005) 13 SCC 287 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.?
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
thereunder with regard to the citizenship of a foreign born person who has
acquired citizenship of India pursuant to provision of Citizenship Act is not
entitled to hold either an executive or a public office.
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 Vs. A. Rajappa 1978 (2) SCC 213. 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 suppliment the written words so as to give force and
life to the intention of the legislature. In Seaford Court Estates Ltd. Vs.
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.?
In State of Karnataka Vs. Appa Balu Ingale AIR 1993 SC 1126 :-
?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.?
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.?
The draft Constitution was before the people of India for eight months.
Therefore, 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.
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.

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.

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,
therefore, 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, therefore, 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, therefore, 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.?
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.?
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.
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 and Tradition of Hume and Burke, the Scientific Socialism of Marx and
Fascism and National Socialism. Therefore, 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. Therefore, 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.
While interpreting the Constitution one has to take into consideration
historical developments, legislative developments, constituent assemblies
debates and any enactme nt 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 organised society and,
therefore, 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.
This argument does not support the contention of the petitioner. The US
Constitution was also before the makers of the Indian Constitution. Therefore,
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. Therefore, 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.
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.
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 ingenuinity 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, therefore, 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/s. Union of India [1962] Suppl.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 tohave 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.?
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.?
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.?
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.?
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.
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.
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. Therefore, 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.
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. Therefore, the questions as
formulated above has to be answered in the negative.
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.
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 B. The Court further held that the expression ?in
addition to? and ?not in derogation of? means the same thing.
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.
In Union of India v. Deoki Nandan Aggarwal 1992 Supp (1) SCC 323, 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.?

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 Vs.
Elphinstone Spinning and Weaving Co.Ltd. and ors. (2001) 4 SCC 139, 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, therefore, 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.............?
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)
Cl and Fin 85, 143 : 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.
In Emperor V. Benoari Lal Sarma AIR 1945 PC 48 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.
In Kanai Lal Sur Vs. Paramnidhi Sadhukhan AIR 1957 SC 907,
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.?
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 nation and a nation is entitled
to live with all such persons who owe their allegiance to the State.
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.
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.
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.

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 nation 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.


There is no merit in this petition and the same is hereby dismissed.

(Vijender Jain)
Acting Chief Justice



November 24, 2006 (Kailash Gambhir)
SA Judge

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