Gujarat High Court
Case BriefsHigh Courts


Gujarat High Court: While deciding the instant bunch of petitions wherein the need to have a domicile certificate in order to be registered as a recipient on the State list for cadaveric transplant of an organ in Gujarat was challenged and prayer was made to declare Paragraph 13.1 and 13.10(C) of Gujarat Deceased Donor Organ and Tissue Transplantation (G-DOT) Guidelines as arbitrary, illegal and in violation of fundamental rights of the petitioners as well as citizens of India; the Bench of Biren Vaishnav J., held the impugned Paragraphs of the Guidelines to be unconstitutional, unreasonable and in violation of fundamental rights under Arts. 14 and 21 of the Constitution. The Court held that the need to have a domicile certificate in order to be registered as a recipient on the State list for cadaveric transplant of an organ is illegal and unconstitutional and directed the State of Gujarat to register the petitioners and such other recipients for cadaveric transplant of organs without the conditions of submitting a domicile certificate.

Facts of the Case: One petitioner is a Canadian citizen and an Overseas Citizen of India. Having diagnosed with limited functioning kidney, she was advised to undergo organ transplant. To undergo such transplant, the petitioner has to be registered as a recipient under the Transplantation of Human Organs and Tissues Act, 1994 and the Regulations thereunder. However, her request for registration was denied on the ground that she would require a domicile certificate. A request made for such certificate has been rejected by the impugned communication by the police authorities on the ground that the petitioner is a Canadian citizen and not an Indian citizen.

Similar plight was highlighted by other petitioners-

One resident of Madhya Pradesh and Gujarati by descent whose registration under the 1994 Act was rejected as she was registered in the non-domicile list citing paragraphs 13.1 and 13.10(C)(2) of the G-DOT Guidelines. The resolution dated 14-03-2019 provides that priority will be given to domicile residents and only after that list is exhausted, the organ will be offered to non-domicile list.

Another petitioner, a permanent resident of Gujarat since 2015, whose application for domicile certificate was rejected by the competent authorities on the ground that that since the petitioner belongs to the State of Jharkhand and is in Ahmedabad since 2015, having not completed 10 years, is not entitled to a domicile certificate.

Contentions: The counsels for the petitioners contended that Transplantation of Human Organs and Tissues Act, 1994 and the Rules thereunder do not specify any requirement of a domicile certificate. It was submitted that Art. 21 of the Constitution which deals with ‘Right to Life’, guarantees and includes the right to live with human dignity and receive medical care. It was submitted that State has a constitutional obligation to guarantee right to health which is an integral part of the ‘Right to Life’.

The petitioners challenged the clauses of the G-DOT Guidelines and submitted that they are beyond the rule making powers conferred under the 1994 Act. Relying on State of Telangana v. B. Subbarayudu, 2022 SCC OnLine SC 1220, by which the Supreme Court has held that every part of every state is an integral part of India. The Rules and Regulations have to be in consonance with the fundamental rights guaranteed under Part-III.

It was argued that the State’s insistence on domicile certificate would lead to making of two lists- one non-domicile and the other domicile and it is not the case where the petitioner wants any priority, thus the stand of the State strikes at the very root of Art. 21.

Per contra, the counsels for State Organ and Tissue Transplant Organization and the Advisory Committee submitted that Act of 1994 had been enacted as there was a large-scale propensity of commercialization of human organs. It was further submitted that human organ between a donor and a foreign national is not permitted and therefore, one of the petitioners cannot be permitted to undertake the process as the only possible way that she can apply is through cadaveric donation and the restrictions in place are just and proper.

The rationale behind the requirement of a domicile certificate was explained by submitting that in India as also in the State of Gujarat, there is a huge gap between recipients of organs and organ donors. The patients in need of organs outnumber the cadaver donors. It is therefore that the Guidelines prescribed various criteria like donor for types of hospitals and the sole purpose behind the criteria is to ensure that domiciles of State have access to medical health and infrastructure. It was submitted that the marginal and poor people of the State of Gujarat who do not have the capacity to travel outside Gujarat for transplantation would benefit by clause 13.1 and 13.10 and therefore the same should not be set aside.

Analysis and Findings by the Court: The Court upon perusing the facts, contentions and relevant provisions, did a detailed analysis of the grounds upon which the impugned Guidelines was challenged-

Vis-à-vis the Guidelines being violative of Art. 21, it was noted that in essence, the petitioners are suffering from a handicap due to a malfunction of an organ viz. kidney and liver in the respective cases, need a transplant, for which, the recipient petitioners will have to have a corresponding donor. It was pointed out that the 1994 Act regulates the transplantation of human organs and tissues by placing certain obligations and duties on the actors involved in the process.

It was observed that when a donor wants to donate after death, he/she can authorize the removal of organs after death. Living donors who want to donate before death can do so by a donation to a near relative and/or to a near relative who is a foreign national. This has to be done after prior approval of the Authorisation Committee. It was further noted that Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines are in connection to cadaver transplantations.

The Court stated that argument to support the requisite of domicile certificate to correlate a complete embargo on organ donation to a foreign national by an India donor is of no help as even otherwise the guidelines of a prerequisite possession of domicile certificate is not related to the concept of a living donor.

Regarding denial of registration under the 1994 Act to an Overseas Citizen of India, the Court observed that Section 7-B(2) of Citizenship Act, 1955 provides or enlists such rights which an Overseas Citizen of India cardholder shall not be entitled to vis-a-vis the rights conferred on an Indian Citizen. However, such rights cannot be read to restrict the availability of rights to a ‘person’ under Arts. 14 and 21 of the Constitution. It is therefore misconceived for the State authorities to contend that only such rights other than specified under Section 7B (2) will be available only if so notified. This cannot be sustained when it comes to “Right to Life” under Art. 21.

Under the statutory scheme vis-à-vis organ donations, the Court observed the sequence of allocation of organs will be in the order -> state list -> regional list -> national list -> Person of Indian Origin -> Foreigner. Therefore, even when it comes to allocation, the Person of Indian Origin and Foreigner fall back in queue.

The Court found that the idea to bring in the concept of a domicile certificate by way of a guideline by the State, under the pretext of protecting the needs of the needy fails the test on two counts– Firstly an executive instruction cannot supplant a Rule and Secondly such an instruction has no reasonable nexus with the object sought to be achieved. “The whole object of making of the Act and the Rules is to stem the propensity of commercialization of organ transplantation and by bringing in a requisite of being a domicile of a State cannot in any manner foster the purposes of the Act and therefore, on the touchstone of this test such a requirement, as set out in Paragraph 13(1) and 13(C)(2) of the G-DOT Guidelines by the State violate the constitutional guarantee enshrined to any person under Article 14 of the Constitution”.

State Guidelines, which is in the nature of executive instructions cannot be made to operate in absence of any such sanction under the Act and the Rules and also, when such a guideline of having a domicile certificate of the State has no nexus to the object sought to be achieved i.e. to prevent commercialization of organ trade and misuse of the machinery under the set for such purposes.

The Court observed that Art. 21 is at the heart of the Constitution, a Fundamental Right, available to all persons. Referring to the landmark cases dealing with importance of Art 21 and its availability to all persons, the Court stated that, while interpreting Article 21 the Supreme Court has held that the ‘Right to Health’ is an integral part of the ‘Right to Life’ and the State has a constitutional obligation to provide health facilities. Denial of medical treatment to the petitioners who are not domiciles of Gujarat is illegal and unconstitutional. By way of Paragraph 13(1) and 13(10)(C), the State has tried to introduce a new criterion of requirement of a domicile certificate for registration of a patient for enrolling them on the State List for organ transplant. The introduction of such criteria by a guideline, in the nature of executive instructions is in colourable exercise of powers.

[Vidya Ramesh Chand Shah v. State of Gujarat, R/SPECIAL CIVIL APPLICATION NO. 18056 of 2022, decided on 21-11-2022]

Advocates who appeared in this case :

GM JOSHI, SR COUNSEL assisted by MR IG JOSHI, MR VYOM SHAH, ADVOCATES (8726) for the Petitioner(s) No. 1 in SCA Nos.14029/2022 and 18056/2022;

KUNAN B. NAIK, ADVOCATE for the Petitioner(s) No. 1 in SCA Nos.8602/2022;

MR G H VIRK (7392) for the Respondent(s) No. 4 for the Respondent(s) No. 4 in SCA No.14029/2022;

MANISHA LAVKUMAR, SENIOR ADVOCATE assisted by S.S. PATHAK, ADVOCATE for the Respondent(s) No. 2 & 3 in all the Petitions;

ROHAN N. SHAH, AGP for the Respondent(s) No. 1 – STATE in all the Petitions;

VAIBHAV VYAS, ADVOCATE for the Respondent(s) No. 4 in SCA No.18056/2022;

RAJESH K KANANI, ADVOCATE for the Respondent(s) No. 4 in SCA No.8602/2022.

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Patna High Court
Case BriefsHigh Courts

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?

Other Issues:

  1. 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?
  2. Whether voluntarily relinquishing Citizenship of Nepal confers any right of Indian Citizenship upon the appellant?
  3. 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?
  4. Whether the appellant was disqualified from being elected to or function as Mukhiya of the Gram Panchayat in Bihar?
  5. 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.

Case BriefsForeign Courts

Constitutional Court of South Africa: 9-Judge Bench of the Constitutional Court unanimously decided upon the constitutional validity of Section 2(1) of the amended South African Citizenship Amendment Act, 2010. The Court did not uphold the order passed by the High Court of South Africa, Gauteng Division, Pretoria, which declared Section 2(1) of the amended Citizenship Act as unconstitutional and invalid.

The five applicants of the present case, all of whom provided evidence before the court that at least one of their parents was a South African citizen at the time of birth, had approached the High Court in October 2016 and pleaded that an order be made declaring Section 2(1)(a) and (b) of the amended Citizenship Act as constitutionally invalid. Section 2 read that- “(1) Any person— (a)  who immediately prior to the date of commencement of the South African Citizenship Amendment Act, 2010 [i.e. 1 January 2013], was a South African citizen by birth or by descent; or (b)  who is born or was born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen, shall be a South African citizen by birth.” As alleged by them, this amended section carried various constitutional infringements. The first was that this section did not include a provision to retain the citizenship of those who came under Section 13 of the Births and Death Registration Act, 1992 which stated that if a child of a South African citizen is born outside the Republic, then they are eligible to attain citizenship. The applicants made the case that this amended section will effectively strip these citizens of their South African citizenship. The applicants had also pleaded that they be declared as South African citizens and the amended section be struck down as invalid.

The High court upheld their plea of unconstitutionality and granted them their relief with the exception of the 2nd applicant as there was insufficient information. The Constitutional Court now heard an application for confirming the order of constitutional invalidity granted by the High Court.

In its Judgment, the Court noted that while there is no express constitutional provision requiring Judges to furnish reasons for their decisions, reasoning is nevertheless an important duty and vital towards establishing legitimacy of the judiciary. The High Court in its judgement had not provided any coherent reasons for its decision and merely approved the draft order of the applicants. With this the Court goes into a detailed discussion of the history of South African citizenship starting from the 1949 Citizenship Act. The Court laid special emphasis on the fact that legal statutory provisions must be read in their ordinary understanding without resorting to philosophical and intended meanings. Further, Judges must adhere to a purposive understanding of statutes in the sense that they construe them in a way that gives effect to the core values enshrined in the Constitution. The Court addressed the first issue of- who was a South African citizen by birth? As per Section 2(1)(a) of the amended Citizenship Act, all those who fell within this definition on 31 December 2012 would remain citizens by birth in terms of the amended Citizenship Act but this in turn deprives and excludes those who acquired citizenship differently. The inconsistency that arose is that through the 2010 Amendment, the meaning of  “citizen by descent” has been drastically modified to even include those who have been adopted in terms of the Children’s Act, 2005 by a South African citizen but at the same time appears to remove the previous concept of citizenship “by descent” altogether. It was noted that it is illogical why a legislation would provide for citizenship by birth for children of foreign nationals while not providing for those who had previously been born to South African parents even though it was about the Republic. This brought into question the intended meaning of Section 2(1)(b).

The Court held that retrospective application cannot be simply implied unless it is explicitly stated and hence the usage of the word “is” in the aforementioned section might suggest a narrow, prospective-only interpretation that strips citizenship rights from a great number of people in the most unfair and unjustified manner. At the same time, a word such as “is” is capable of bearing a meaning that applies both to those born before and after the commencement of the 2010 Amendment because it refers to a state of existence, and does not define at what point does that existence arise.

Moreover, as discussed above, the Court bears a burden to arrive at an understanding that is constitutionally compliant and must promote rights rather than limit them. With this, the Court agreed the proper way to read Section 2(1)(b) was that “any person who is born in or outside the Republic, one of his or her parents, at the time of his or her birth, being a South African citizen” mean a person who is a child of a South African citizen, regardless of when that person is born or whether that person is born inside or outside the Republic. This in turn also validated the current wordings of Section 2(1)(a) to include persons born even outside the Republic. The Court therefore did not confirm the findings of the High Court that declared the amendment as invalid and upheld its constitutionality. [Chisuse v. Director-General, Department of Home Affairs, [2020] ZACC 20, decided on 22-07-2020]

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharya, J., while addressing a petition regarding the citizenship of a person, held that,

“An application has to be made to acquire citizenship under Section 5(1)(c) of the Citizenship Act, 1955 mandatorily in Form III as given in Rule 5(1) of Citizenship Rules, 2009.”

Petitioner states its grievance that he has been denied citizenship of India since he was not able to file an application under Section 5(1) (c) of the Citizenship Act, 1955 as the online application that has to be filed now requires a copy of the passport as a mandatory requirement for such application.

Counsel for the Petitioner, submitted that the petitioner was a Pakhtoon citizen and due to political turmoil in the said State he had to migrate to India with his father. Petitioner was a 5-year-old child at that time. Under such circumstances, the petitioner could not have any opportunity of having a valid passport since they were refugees under distress.

Counsel for the State submitted that in view of the petitioner not complying with the mandatory requirement of submitting a copy of the passport. State Government cannot, under the law forward such an application to the Union Government.

Court’s Analysis & Decision

Petitioner has to make an application to acquire citizenship under Section 5(1)(c) of the Citizenship Act mandatorily in Form III as given in Rule 5(1) of 2009 Rules. On perusal of Form III, Court stated that clause 9 of the same requires passport particulars of the applicant and documents to be attached with application include a valid foreign passport.

Further, the Court noted that,

A compliance of Rule 5(1)(a), although contemplates that an application shall not be entertained unless the application is made in Form III, such provision ipso facto does not make the availability of a passport a mandatory requirement, since the Form given with the Rules or the Rules themselves cannot override the provision of the statute itself, under which the said Rules are framed, which does not stipulate such a mandate on the applicants for citizenship under Section 5 (1)(c) of the 1955 Act mandatorily to carry a passport.

 Thus, the Court held that, it is nowhere indicated in Form III that particulars regarding passport of the petitioners have to be furnished mandatorily along with a copy of a valid foreign passport. The Bench also added that, there has to be a relaxation in such requirement in the case the petitioner is able to satisfy the appropriate authorities the reasons for non availability of such passport.

Hence, the requirement of having a passport has to be read as optional in Form III of the Citizenship Rules, 2009.

Further, the Bench made an observation that,

“…despite the provision of making applications online, a provision has to be made for persons who do not have all the particulars of their passport, which is read as optional, to file applications manually, which are to be treated as valid applications under Rule 5 of the Citizenship Rules, 2009, alternatively to amend the necessary software so that the online applications can be presented with or without passports, in the latter case furnishing detailed reasons as to non-furnishing of passports.”

[Bismillah Khan v. Union of India, 2020 SCC OnLine Cal 540, decided on 24-02-2020]

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: A Full Bench of Wagner, CJ. and Moldaver, Grason, Cote, Brown, Rowe and Martin, JJ. is pertaining to the validity of Registrar’s decision in a case of withdrawal of citizenship.

The petition has been filed by Ministry of Citizenship and Immigration against the orders of Court of Appeal that dismissed the order of Registrar where the reasonableness of his decision and correctness of the interpretation of Section 3 (2) (a) of the Canadian Citizenship Act, R.S.C. 1985, C-29 by him is in question.

The facts of the case are that Alexander Valivov is born to a Russian Couple who were the spies planted in Canada by the Russian Intelligence Agency, a fact unknown to Alexander. The couple was caught for spying in 2010. Alexander who holds Canadian citizenship, got his certificate of citizenship cancelled by the Registrar in 2014 citing Section 3 (2) (a) of the Citizenship Act, which states that if either parent of a Canadian born is an employee of another country in Canada the child don’t get citizenship by birth. Alexander moved to a federal court where his appeal got dismissed. Further, he took the issue to the Court of Appeal which allowed Alexander’s appeal. Hence, the minister of Citizenship and Immigration has challenged the Court of Appeal’s decision in the Supreme Court.

The Court considered the case Dunsmuir v. New Brunswick, 2008 SCC OnLine Can SC 9 and clarified the law applicable to judicial review of administrative decisions. There are two aspects that need clarification. First is the analysis of determining the standard of review. Second is the guidance of the Court on a reasonableness standard. The court decided that the standard applicable in the registrar’s decision is reasonableness. In reasonableness review Court intervenes to safeguard legality, rationality and fairness of the administrative process, failure in which may lead it to be set aside.

The Court observed that Registrar did not take note that Section 3 (2)(a) applies only to the children of those individuals whose parents had been granted the diplomatic privileges by the Canadian Government. The Court held the decision rendered by Registrar to be unreasonable, as the interpretation of Section 3 (2) (a) of Citizenship Act done by him was improper and hence the Court found uplifted the decision given by the Court of Appeal and Canadian citizenship got restored to Alexander Vavilov. [Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, decided on 19-12-2019]

Op EdsOP. ED.

Articles 10[1] and 11[2] of the Constitution of India permits Parliament to make provisions in the matters of citizenship. Using this power Parliament had enacted the Citizenship Act, 1955 and a special law for Assam titled the Immigrants (Expulsion from Assam) Act, 1950.

There was a massive influx of illegal immigrants from Bangladesh (formerly East Pakistan) into the State of Assam. This lead to social and political conflict in the border State of Assam. In 1985, Assam Accord was signed between the Government and leaders of Assam agitation. It brought the first amendment of the Citizenship Act[3] and thereby Section 6-A was inserted in the Act.

Section 6-A divided the illegal immigrants of Indian origin (i.e. those whose parents or grand-parents were born in undivided India) into three groups:

  1. Those who entered into the State before 1966 were deemed to be the citizen of India.
  2. Those who entered into the State between 1966 to 25-3-1971 (official date of announcement of the Bangladesh war) were deemed to be citizens but their names were deleted from the electoral rolls. This was done because the political parties in order to increase their vote bank were giving citizenship arbitrarily to every immigrant without NRC (National Register of Citizens).
  3. Those who entered into the State after 1971 were to be detected and deported in accordance with the law.

To detect the illegal immigrants in the State of Assam, Parliament passed the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), two years before the Assam Accord. Under the Act the Government framed the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules). The Act and the Rules taken together, made some departure from the procedure under Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964 which was applicable for whole India.

IMDT Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal v. Union of India[4] and the Court held the Act and the Rules to be unconstitutional. Thereafter, the Tribunals under IMDT Act ceased to function and statutory regime reverted to Section 6-A of the Citizenship Act, the Foreigners Act and the Foreigners (Tribunals) Order.

Section 6-A of the Citizenship Act was challenged before the Supreme Court in Assam Sanmilita Mahasangha v. Union of India[5]. A two-Judge Bench of the Supreme Court (Justice Ranjan Gogoi and Justice R.F. Nariman) framed 13 questions of law and passed it to Constitution Bench under a referral order under Article 145(3)[6]. The first issue raised in the referral order is:

Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6-A of the Citizenship Act inasmuch as Section 6-A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4(2) read with Article 368(1)?

Under Article 6 of the Constitution, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India if he, or either of his parents or any of his grandparents, was born in undivided India and in addition, has fulfilled either of the following two conditions:

  1. in case he migrated to India before 19-7-1948[7], he had been ordinarily resident in India since the date of his migration; or
  2. in case he migrated on or after 19-7-1948, he had been registered as a citizen of India.

A person could be so registered only if he had been resident in India for at least 6 months preceding the date of application for registration.

The migration envisaged in Article 6 only means coming to India from outside and it must have taken place before, and not after the commencement of the Constitution.

Section 6-A of the Citizenship Act provides cut-off date for the entry into the State of Assam different from that provided in Article 6 of the Constitution. Thus, there posed a conflict between Article 6 and Section 6-A as Section 6-A is said to be contradictory to Article 6.

The main point to be considered is that whether Articles 10 and 11 of the Constitution empowers Parliament to make provisions contrary to the provision of the Constitution without an amendment to the constitution itself.

Section 6-A was inserted by an amendment to the Citizenship Act but there was no amendment of the Constitution w.r.t. variation of Article 6 for the enforcement of Section 6-A.

Articles 2 and 3 of the Constitution states about the territory. If we go by literal interpretation of the word “territory” it means the geographical area under the jurisdiction of a sovereign State. State includes both territory as well as population. Any law made for a territory is directly related to the people residing over the territory. There can be no existence of a territory without the existence of living flesh in that territory. Thus, it may be said that territory does not only include the land but it consists of all living creatures residing in the territory.

A territory is a combination of both land and living creatures residing over there. Article 6 provides for rights of the citizenships of certain persons who have migrated to the territory of India from the territory now included in Pakistan. Articles 2 and 3 talks about territory w.r.t. land. As territory includes both land as well as living creatures, it can be said that Article 6 stands on the same footing as Articles 2 and 3.

Since Articles 2 and 3 are immunised from the constitutional amendment under Article 368(1)[8] by virtue of Article 4(2) then Article 6 shall also come under the scope of Article 4(2) and shall be immunised from the amendment under Article 368(1) of the Constitution. If this interpretation is true it may be said that Article 6 of the Constitution need not to be amended and no such law made thereunder shall be deemed to be an amendment of the Constitution.

Section 6-A of the Citizenship Act may be said to be an expansion of the Article 6 of the Constitution considering the socio-economic conditions of the country. And in enforcement of Section 6-A there is no requirement of the amendment of the Constitution.


*Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1.

Ekta Rai is a first year student at National University of Study and Research in Law, Ranchi.

[1]  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.

[2]  Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to acquisition and termination of citizenship and all other matters relating to citizenship.

[3]  Citizenship (Amendment) Act, 1986.

[4]  (2005) 5 SCC 665.

[5]  (2015) 3 SCC 1.

[6] The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

[7]  On this date, the influx from Pakistan (Control) Ordinance introduced a permit system to control the admission into India of persons from West Pakistan.

[8]  Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

Case BriefsHigh Courts

Meghalaya High Court: While considering three petitions addressing the issue wherein the petitioners (they being children of Tibetan parents and born in India on or after 26.01.1950 and before 01.07.1987) were denied the status as citizens of India under the Citizenship Act, 1955, the Division Bench of Dinesh Maheshwari, C.J., and Ved Prakash Vaish, J., held that, on interpreting an unambiguous provision such as Section 3 of the Citizenship Act, 1955, the petitioners are Indian citizens in every respect and thus are entitled to all benefits and privileges available to the Indian citizens.

The three petitions which were addressed jointly by the Court, stated that the petitioners are citizens of India by virtue of Section 3 (1) (a) of the Citizenship Act, 1955, but they were denied the status of citizens and the rights attached therewith by the Union of India and the State of Meghalaya without any justification and reason. It was further contended that they were being compelled by the authorities to carry registration certificate as refugees. The respondents however contended that if the petitioners are having a claim of citizenship, then they need to apply to the authorities concerned under Section 3 read with Section 9 of the Citizenship Act, 1955 and the requisite declaration in their favour could be made only after due enquiry. The respondents claimed that the petitioners have furnished false information related to their birth and that they obtained the registration in the Electoral Rolls by suppressing the fact that they were registered Tibetan refugees and were not holding the citizenship certificate.

Perusing the facts of the case and the clarity of Section 3 (1)(a) of the Citizenship Act, 1955, the Court outright observed that the respondents were unjustified in denying the rights to the petitioners as citizens of India though such rights flow directly and unfailingly by the operation of the plain provisions of law. Moreover each of the petitioners was born within the cutoff year as provided by the law. Referring to the decisions of the Delhi High Court and Karnataka High Court in Namgyal Dolkar v. Government of India, 2010 SCC OnLine Del 4548 and Tenzin Choephag Ling Rinpoche v. Union of India, 2013 SCC OnLine Kar 5932 respectively, the Court stated that the plain reading of unambiguous provisions of law, as contained in Section 3 of the 1955 Act, leaves nothing to doubt and, “any decision by any Ministry cannot override the plain provisions of law nor any correspondence or any communication could do so.” [Tenzing Choden Sherpa v. Union of India, 2017 SCC OnLine Megh 35, decided on 15.02.2017]