Patna High Court: The Division Bench of Sanjay Karol, CJ and S. Kumar, J., addressed the vital issue of citizenship with respect to its essentialities and other issues such as whether the State Election Commission is empowered to set aside the election of a person in light of her not being a citizen of India.
Primary Issue for consideration
Whether the appellant is a citizen of India or not?
- Was the State Election Commission empowered to set aside the appellant’s election under Section 136(1) of the Bihar Panchayat Raj Act, 2006 on the ground of her not being an Indian citizen?
- Whether voluntarily relinquishing Citizenship of Nepal confers any right of Indian Citizenship upon the appellant?
- Can the appellant’s voter ID Card; PAN Card; Aadhaar Card; acquiring education or immovable property in India; having a Bank Account, function as proof of Indian Citizenship?
- Whether the appellant was disqualified from being elected to or function as Mukhiya of the Gram Panchayat in Bihar?
- Can the appellant’s status of Statelessness be remedied as per Indian Law?
The instant appeal arose from an order and judgment by which the appellant’s writ petition assailing the order of the State Election Commission was dismissed. Appellant’s election was set aside on the ground of disqualification contained under Section 136 1(a) of the Bihar Panchayat Raj Act, 2006.
Appellant was born and brought up in Nepal and after her marriage, she permanently started residing in India.
Issue of appellant’s nationality became the subject matter of challenge in the year 2018 after she was elected as a Mukhiya of Gram Panchayat.
Examination of Issues
Court noted that the appellant herself acknowledged that she was born and brought up in Nepal and wasn’t an Indian Citizen under Sections 3 and 4 of the Citizenship Act, 1955.
Hence, the State Election Commission was empowered to set aside her election as Mukhiya.
Bench added that the issue is no longer res integra in view of the decision Supreme Court’s decision in Rajani Kumari v. State Election Commission, (2019) 4 PJLR 673.
ISSUE 2 and 4:
For the adjudication of issue, Article 10 and 11 are reproduced as under:
“10. Continuance of the rights of Citizenship.— Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.
11. 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.”
Section 135 of the Panchayat Act makes it clear that every person whose name is entered in the voters’ list of any Panchayat constituency, unless disqualified under the Act or any other provisional law, shall be qualified to be elected as a member or office-bearer of the Panchayat.
Section 136 of the Panchayat Act commences with a non-obstante clause. The expression used is ‘notwithstanding anything contained in this Act’. If a person entails any one of the disqualifications also enumerated in the said Section, a person will entail disqualification.
For the post of a Mukhiya, the person stands disqualified if she/he is not a citizen of India.
Further, the expression ‘citizen of India’ is not defined under the Panchayat Act. The Constitution of India itself does not confer any right of Citizenship. Hence, the Citizenship Act enacted under Entry 17 of List I of 7th Schedule for acquisition and determination of India Citizenship is to be considered.
Only the Central Government is empowered to confer Citizenship upon the Foreign Nationals. Petitioner admitted that she has not applied for Citizenship under the Citizenship Act.
Adding to the above, Court also stated that the appellant’s case would fall under clause (c) of sub-section (1) of Section 5. She is married to a citizen of India and is ordinarily residing in India for the last seven years. But then, significantly and undisputedly, she never sought Citizenship by way of registration.
An oath of allegiance is necessarily required to be taken by the appellant. Hence, by her actions and conduct, she precluded herself from being considered as a citizen under the Citizenship Act.
Mere relinquishment of original Citizenship cannot be perceived as an intent of seeking Indian Citizenship.
The Citizenship Act does not provide for a scenario where a person residing in India, upon relinquishing her/his original Citizenship is automatically considered to be a citizen of India.
Hence, in Court’s opinion, the appellant failed to follow the procedure as set out in the Citizenship Act.
Whether documents produced by the appellant can form the basis of conferring Citizenship upon her or not. Court stated that in view of the discussion, it cannot be in the affirmative.
In the Supreme Court’s decision of Sarbanda Sonowal v. Union of India, (2005) 5 SCC 665, laid down certain principles in dealing with cases of illegal migrants.
“Burden of proof would be upon the proceedee as he would possess the necessary documents to show that he is a citizen not only within the meaning of the provisions of the Constitution of India but also within the provisions of the Citizenship Act.”
Further, on reading the Representation of the People Act, 1950 it is clear that the name in the electoral roll (voter list) would not be proof of the Citizenship of India.
“Mere registration of a person’s name in the voter list, ipso facto, does not confer Citizenship.”
The only exception to the above was Supreme Court’s decision in Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100, but then, that was peculiar to the attending facts and circumstances, where action for ‘en-masse’ deletion of names of lakhs of voters, who already exercised their right of franchise, was influenced by extraneous consideration and without any proper enquiry.
Purpose of the PAN card is to facilitate the payment of taxes to the Indian State, which foreigners may also be required to pay.
This Court in Narendra Narayan Das v. State of Bihar, AIR 2008 Pat 124, while examining the issue of a citizen of Nepal, held that Citizenship of a foreigner is determined under the Municipal laws of the parent country and not the Indian Citizenship Act.
The eligibility criteria for obtaining an Aadhaar Card is residency in India for a period of 182 days or more, not citizenship.
Section 9 of the Aadhaar Act, 2016 clearly states that an Aadhaar number or authentication thereof shall not by itself confer any right of or be proof of Citizenship or domicile of the Aadhaar number holder.
Hence, the appellant cannot rely on her PAN card and Aadhaar Card as proof of Indian Citizenship.
Further, Bench also held that, mutating name in the register is only proof of ownership of property and is silent on the status of Citizenship of person to whom property is transferred.
Supreme Court in Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233, held that even a certificate of registration under Section 5(1)(c) of the Citizenship Act may be challenged in an election petition under Section 82(1) (a) of the Representation of the People Act, 1951.
Hence issue 3 was not answered in the appellant’s favour.
Appellant had surrendered her Nepali Citizenship in 2016 but failure to meet the requirements for Indian Citizenship by registration coupled her surrender of Nepali Citizenship, left her citizenship status in limbo.
The facts of the present case represent the appellant’s intention to make India her permanent home/domicile.
There is an additional bureaucratic hurdle in registering herself under the Citizenship Act – the documents to be attached for an application under Section 5, per Form III under Rule 5(1)(a) of the Citizenship Rules, 2009, include a copy of valid Foreign Passport and a copy of the valid Residential permit.
To re-obtain her Nepalese Citizenship, she will have to return to “reside” in Nepal before applying for Citizenship, away from her immediate family in India.
Hence, in view of the above, the Court held that it is not permitted to direct the Central Government to grant the petitioner Indian Citizenship as that would impinge upon the Executive’s functions.
Complications in legal status
Parting with the decision, and on observing the peculiar situation of the petitioner and in order to prevent statelessness, Court directed that upon receipt of petitioner’s application, the appropriate authority may consider her application expeditiously.
Gist of answers for the issues raised
- State Election Commission was empowered to set aside the petitioner’s election on the specified ground under Section 136(1) of the Panchayat Act of her not being an Indian citizen.
- Mere relinquishment of Citizenship of Nepal does not confer upon any right of Indian Citizenship.
- Mere possession of a Pan Card; a Voter ID Card; or an Aadhar Card cannot be said to be proof of Indian Citizenship.
In view of the above, the present appeal was disposed of.[Kiran Gupta v. State Election Commission, 2020 SCC OnLine Pat 1641, decided on 12-10-2020]
Counsel for the Appellant: Advocates, Rajes Singh, Ranvijay Narain Singh, Jitendra Singh and Ranjeet Choubey.
Counsels for the State Election Commission: Amit Shrivastava and Girish Pandey, Advocates.
For the State: Lalit Kishore, A.G. and Pawan Kumar AC to AG.