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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