rashtriya mukti morcha, through ... vs union of india (uoi), through ... on 24 november, 2006

8/2/2019 Rashtriya Mukti Morcha, Through ... vs Union of India (Uoi), Through ... on 24 November, 2006

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Delhi High Court

Delhi High Court

Rashtriya Mukti Morcha, Through ... vs Union Of India (Uoi), Through ... on 24 November, 2006

Equivalent citations: 137 (2007) DLT 195

Author: V Jain

Bench: V Jain, K Gambhir

JUDGMENT

Vijender Jain, Acting C.J.

Page 0089

1. 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 theConstitution;

(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) & (ii) no longer survive the petitioner is insisting on prayers (iii), (iv) & (v) of the writ

petition.

2. Mr. P.N. Lekhi, learned senior advocate for the petitioner has very forcefully argued the matter confining

himself to prayers (iii), (iv) & (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


Indian Kanoon - http://indiankanoon.org/doc/1738264/ 1


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Representative of People Act.

Page 0090

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 imp leaded as a respondent in the writ petition. Therefore, this application

is dismissed.

3. 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.

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

politically organized society because the fundamental identity of a person is citizenship. It was contendedbefore 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.

5. 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 whowas 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.

Page 0091

6. 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.




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7. 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.

8. 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.

9. 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 chershed 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, hasnot 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.

10. 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.

Page 0092

11. 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.

12. 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




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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 whyShri 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 Page 0093 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....

13. 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.

14. 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 andeconomic democracy. The Learned Counsel for the petitioner relied upon Mrs. Valsamma Paul v. Cochin

University and Ors. 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.

15. 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.

16. 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.




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Page 0094

17. 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.

18. 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 twoChambers, 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....

19. Mr. Lekhi has contended that Hari Shankar Jain v. Sonia Gandhi 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 positivedisqualification 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.

20. Quoting Constitutional Government & Democracy by Carl J. Friedrich at page 6 it was said:

Page 0095

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....

21. 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




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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.

22. 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 Section29(a) of the Representation of People Act, Articles 84 & 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.

23. It was contended by Learned Counsel for the petitioner that paragraph 2 (h) of The Election Symbols

(Reservation & 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 29A of the Representation of People Act, 1951.

24. Deliberating on the Article 58 of Constitution of India in relation to qualification of President, Article 66relating 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 Page 0096 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.

25. 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 ofArticle 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 & 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.

26. 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




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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.

Page 0097

27. 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 doesnot 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. v. The State of Uttar Pradesh :

It is manifest that by the non-obstante clause, "notwithstanding anything contained in this Code" in

Sub-section (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 Section 198 is one of those provisions.

28. 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 & 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 incontravention 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.

29. 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 7A and 7B 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.

30. 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

Page 0098 Charitable Trust v. State of Haryana and Ors. where Supreme Court observed as under:




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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'sinterpretation 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.

31. 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.

32. 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 andrelied 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 originaldrafters.

33. Mr. Lekhi placed reliance on Craies on Statute Law 7th Edn. on doctrine of Relaxation of rule of strict

construction:

Page 0099

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.

34. 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.




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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.

35. 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 ofa public office, or capable of receiving from the crown a grant of land in Great Britain or Ireland....

36. 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.

37. 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 adaptedto 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, Page 0100 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.

38. 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.

39. 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 v. M. Tarkunde where it was

observed as follows:

... The Court must not allow its process to be abused by politicians and Ors. 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....

40. 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.

41. 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




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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 :

Page 0101

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').

42. 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 misconceivednotion.

43. 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 ordinarilyresident of the territory of India for not less than 5 years preceding such commencement was treated as a

citizen of India.

44. 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 Page 0102 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.

45. Learned Counsel for the respondent relied upon Stroud's Judicial Dictionary at page 766 on the meaning

of 'Domicile' which is as under:




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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'.

46. 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.

47. 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 tothem 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)

48. 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."

49. Mr. Malhotra place reliance on Kedar Pandey v. Narain Vikram Sah :

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 Page 0103

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.

50. 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 v.

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 Jurisdiction et de jure; a presumption not to be rebutted by declarations

of intention, or otherwise than by actual removal.

51. In Central Bank of India v. Ram Narain , 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 there from....




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52. The definition of domicile by Wharton's Law Lexicon 14th Edition was approved by the Supreme Court in

D.P. Joshi v. State of Madhya Bharat and Anr. . In Craignish v. Hewitt 1892 (3) Chancery Division 180 to the

same effect was also cited by the Learned Counsel for the respondent.

53. Quoting a nine Judge Bench decision of the Supreme Court in The State Trading Corporation of India Ltd.

v. The Commercial Tax Officer , 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 Constitutionprovided 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 Page 0104 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.

54. 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.

55. 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

Ors. unless any class of citizens have been explicitly excluded from enjoying the political rights either underthe 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.

56. 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.




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57. 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 v. State of West Bengal , 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 toacquire 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.

Page 0105

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.

58. 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. v. Union of India .

59. 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.

60. 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.

Page 0106




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61. Reliance was also placed in this regard on Fothergil v. Monarch Airlines Ltd. 1980 2 All ER 696 HL,

Pepper v. 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....

62. 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.

63. This was stated by Sir Alladi Krishnaswami Ayyar while responding to the speech made by the memberwho 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.

64. 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.

65. 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 controland 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.

66. 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. Union of India [1962] Suppl.3 SCR 235:

Page 0107

...That takes us to Article 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 Article 10, Article 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




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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 Article 5 to 10 of Part II. In this connection, it is important to

bear in mind that Article 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 haverelevance 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.

67. 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 favor of any backward class of citizens which, in the opinion of the State, is not

adequately represented in the services under the State.

Page 0108

[(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

favor 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.

68. 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 and Anr. v. Hari Prakash and Ors. , Supreme

Court observed as under:




16/24

...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.

69. 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. v. Nanded Parbhani Z.L.B.M.V. Operator Sangh .

70. Mr. Malhotra laid stress on Suresh Seth V. Commr. Indore Municipal Corporation and Ors. 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.

Page 0109

71. 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 there under 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.

72. 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. Literalconstruction rule was given a go-bye in seven Judges Bench in Bangalore Water Supply Sewerage Board v.

A. Rajappa . 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. v. 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.

73. In State of Karnataka v. Appa Balu Ingale :

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.

Page 0110




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74. 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.

75. 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.

76. 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.

77. And debate of Constituent Assembly Book No. 5 Vol.No.X-XII Index to the Constituent Assemblydebates 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.

78. 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 Page 0111 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.

79. 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




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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 andto 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.

80. 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 inUnited States of America.

81. 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 Page

0112 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 & Tradition of Hume & 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 wasfor 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.

82. 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 organized 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




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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.

83. This argument does not support the contention of the petitioner. The US Constitution was also before themakers 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 Page 0113 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.

84. 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.

85. 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 executiveor 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. 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 Page 0114 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:




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(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.

86. 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 inview 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 th

rashtriya mukti morcha, through ... vs union of india (uoi), through ... on 24 november, 2006

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