By this election petition, the petitioner has prayed the following relief:
a)That it be declared that the election of the Respondent no. 1 as member of Uttar Pradesh Constituency No. 36 Raibareilly, District Raibareilly as null and void and be set aside;
b)That pending the hearing and final disposal of this Election Petition, the first Respondent be prevented by an order and injunction of this Hon'ble Court from attending the Parliamentary proceedings and/or from taking part in any discussion or proceedings or drawing emoluments or receiving any payment of whatsoever nature as an elected Member of Parliament;
c)That cost of the petition be provided for;
d)Any other order or relief as this Hon'ble Court deems fit and proper as contemplated under Section 98 and 99 of the (Representation of the People Act, 1951)* be passed in the facts and circumstances of the present case.
1.Learned counsel for the petitioner, Sri Ashok Pandey submits that the petitioner is a voter in the Raibareilly constituency and has a right to challenge the election of the respondent no. 1, Mrs. Sonia *added Gandhi alias Antonio Maino who was declared as a returned candidate from Raibareilly constituency as a Member of Lok Sabha. The respondent no. 1, Mrs. Sonia Gandhi was born in a traditional Roman Catholic family in Ovassanjo, in Italy on December 9, 1946. On 25th February, 1968, she was married with Mr. Rajiv Gandhi son of Mrs. Indira Gandhi. In 1998, after the death of her husband, Mr. Rajiv Gandhi, she officially took charge of the Congress Party and was elected to Parliament in the election held in the year of 1999. The election in question was held on 28.05.2009 where respondent no. 1 was declared as successful candidate. He further submits that the respondent no. 1, Mrs. Sonia Gandhi was granted certificate of Registration of Citizenship under Section 5 (1) (c) of the Citizenship Act, 1955 on 30.04.1983.
2.Learned counsel for the petitioner further submits that Mrs. Sonia Gandhi has not obtained a "Naturalization Certificate" as contemplated under Section 6 of the Citizenship Act, 1955(hereinafter referred to as "the Act") and to be issued under Rule 10(2) of the Citizenship Rules, 1956 in form XI(Schedule E). According to him, the grant of the certificate of "Registration" as a citizen; and the grant of certificate of "Naturalization", are not two different and distinct aspects and "Certificate of Naturalization" is the first step to get citizenship. Article 11 of the Constitution of India has empowered the Parliament to form Rules for grant of the Citizenship. By virtue of Article 11, the Indian Parliament has passed the Citizenship Act, 1955 which provides the acquisition of citizenship after the commencement of the Constitution by way of birth or descent or registration or naturalization or incorporation of territory. The Act also provides mode of termination of the citizenship under certain circumstances.
3.Learned counsel also submits that Section 6 of the said Act deals with naturalization of a citizen of a foreign country for which a separate and distinct procedure has been provided. The respondent no.1 obtained her citizenship by registration on 30th April, 1983. He further submits that Section 5(1) of the Act was amended and the said provision was deleted by Act No. 6 of 2004 w.e.f. 3rd December, 2004 which has prospective effect. In other words, he submits that respondent no.1 has become the citizen by registration, but she is also entitled to get Italian citizenship under the Italian Law and practice. When she has a right to revive her Italian citizenship, she is not a true citizen of India and became citizen merely by registration as provided in Section 5(1) (c) of the Citizenship Act, and enjoying all political and other rights, powers and privileges like an Indian citizen. Naturalization is thus an official process and a reciprocal one, depending upon reciprocity of the alien country towards an Indian citizen. He continued to argue that the respondent no.1, Mrs. Sonia Gandhi has not applied for a "certificate of naturalization" and hence has not been granted the same. Not having the "Naturalization Certificate" as a citizen of India, the respondent no.1 was, thus, barred not only from contesting the Parliamentary election but also being registered as a voter in the Electoral Roll. According to him, the respondent has not applied for a "certificate of naturalization" and she has merely got herself registered under Section 5(1)(c) of the Act. So, she is not a true citizen of India and her election may kindly be declared as null and void.
4.Sri Ashok Pandey has also given his written submissions where he submits that the respondent no. 1 is a daughter of Mr. Stefen Maino and Mrs. Paila Maino and was born in Italy. Her name is Antonia Maino. This is the name with which she was registered in school and Citizenship Register of Italy. With the similar name she got the Indian citizenship in the year 1983. But in the voter-list her name is registered as Mrs. Sonia Gandhi. She has obtained the certificate of citizenship without having certificate of naturalization so the election of the respondent no. 1 is void as per Section 100 of Representative of Peoples Act, 1951 since she was not a valid voter on the date of election. Her election is void because she does not fulfill the qualification to be chosen to fill the seat under the provisions of the Constitution.
5.On the other hand, Dr. Ashok Nigam, Additional Solicitor General of India, submits that present petition is nothing except to get a publicity. He emphasized that this issue has already been decided by the Hon'ble Apex Court in the case of Hari Shanker Jain v. Sonia Gandhi; (2001) 8 Supreme Court Cases 233. However, on specific query from the Bench, he accepted that the issue pertaining to "Citizenship by Naturalization" relating to the respondent no. 1 was never discussed by any Court. He further submits that a certificate of citizenship issued under Section 5 of the Act is a statutory certificate issued by a statutory authority. A presumption of validity and regularity attaches to such certificate. Under Section 114, Illustration (e) of the Evidence Act, 1872, the court may presume that official acts have been regularly performed. A presumption attaching to the certificate is available to be drawn to the effect that the prescribed authority issuing the certificate was competent to do so and that it had satisfied itself as to the existence of such facts as would entitle the applicant( i.e. the respondent herein) to have access to issuance of such certificate and that the application for the issuance of certificate filed by the applicant was in order. The presumption exists though it is rebutable and not conclusive.
6.Learned Additional Solicitor General further submits that in the case of V.S. Achuthanandan Vs. P. J. Francis; 1999 (3) SCC 737; Hon'ble Apex Court has observed that failure to plead "material facts" is fatal to the election petition and no amendment of the pleading is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. According to him, Section 83(1)(a) of the R.P. Act, 1951, mandates that an election petition shall contain a concise statement of material facts on which the petitioner relies. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. He submits that the petitioner has failed to brought any material fact on record, so the petition may be dismissed in limine, as the petitioner has put the bald allegation in the writ petition without any basis and thereof do not amount to pleading material facts which may warrant any inquiry into those allegations. In support of the above arguments, he submits that the similar issue has been decided by the Hon'ble Supreme Court in the Case of Hari Shankar Jain Vs. Sonia Gandhi(supra) as well as in the case of R. Venkateshwara Rao Vs. Union of India and Or. AIR 1999 A.P. 328. But he accepts that the issue of naturalization was not discussed in the said cases. Lastly, he made a request that the petition may kindly be dismissed with heavy cost.
7.After hearing both the counsels at length, it appears that the respondent no. 1 was born on 09-12-1946 in village Ovassanjo (Luciana) in Italy. Her original name is Ms. Antonia Maino. She was married to Late Sri Rajiv Gandhi, an Indian citizen on 25-02-1968. By virtue of marriage with an Indian Citizen, she has acquired the citizenship on 30-04-1983 by registration under Section 5(1)(c) of the Indian Citizenship Act, 1955.
8.It is the main plea of the counsel for the petitioner that first she was required to obtain the "certificate of naturalization" under Section 6 of the Indian Citizenship Act, 1955 before obtaining the certificate under Section 5 of the Indian Citizenship Act, 1955. It is relevant to consider the provisions relating to the issuance of above said two certificates, which read as under:
I. CITIZENSHIP BY REGISTRATION Section 5:-
Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of Indian any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely:-
(a) a person of Indian origin who is ordinarily resident in India for seven years before making an application for registration;
(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
(d) minor children of persons who are citizens of India;
(e) a person of full age and capacity whose parents are registered as citizens of India under clause(a) of this sub-section or sub-section (1) of Section 6;
(f) a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
(g) a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for two years before making an application for registration.
Explanation 1- For the purposes of clauses(a) and (c), an applicant shall be deemed to be ordinarily resident in India if-
(i) he has resided in India throughout the period of twelve months immediately before making an application for registration; and
(ii) he has resided in India during the eight years immediately preceding the said period of twelve months for a period of not less than six years.
APPLICATION FOR REGISTRATION UNDER CLAUSE(C) OF SUB-SECTION(1) OF SECTION 5.:-(As on 30-04-1983)
1. An application from a person, who is married to a citizen of India, for registration as a citizen of India under clause(c) of sub-section(1) of section 5 shall not be entertained unless-
(a) the application is made in Form III;
(b) he gives an undertaking in writing that he shall renounce the citizenship of his country in the event of his application being sanctioned;
(c) on the date of making the application he,-
(i) has been ordinarily a resident of India; or
(ii) has been in the service of the Government of India;
at least for a period of seven years; and
(d) he makes the oath of allegiance as specified in the Second Schedule to the Citizenship Act, 1955.
Explanation- In computing the period of seven years, any broken period of residence and service under sub-clauses(i) and (ii) of clause(c) shall be included in the period specified therein.
(2) The Central Government may, in consideration of the special circumstances, exempt, any foreign national married to such an Indian Citizen who is in the service of the Government in India, from the operation of clause(c) of sub-rule(1).
(3) The Central Government may, in consideration of the special circumstances, exempt, any foreign national who has been married to an Indian citizen for not less than seven years and who has visited India at least once in a year during any seven years out of nine years, from the operation of clause(c) of sub-rule(1) RULE 14. GRANT OF CERTIFICATE OF REGISTRATION-
(1) Every person who is registered as a citizen of India under clause (a), (c), (d), (e) or (f) of sub-section(1) of section 5 shall be issued a certificate of registration in Form X signed by an officer not below the rank of Under Secretary to the Government of India.
(2) Every person who is registered as a citizen of India under clause(g) of sub-section(1) of section 5 shall be issued a certificate of registration in Form XI signed by an officer not below the rank of Under Secretary to the Government of India.
(3) A copy of the certificate of registration issued under this rule, shall be preserved for the purposes of record by the issuing authority.
FORM II(As on 30-04-1983) [See rule 4(1)(a)] The Citizenship Rules, 2009 APPLICATION FOR REGISTRATION AS A CITIZEN OF INDIA UNDER SECTION 5(1)(a) OF THE CITIZENSHIP ACT,1955 MADE BY A PERSON OF INDIAN ORIGIN Note: Please write/print in BLOCK LETTERS PART I PHOTOGRAPH
1.I, ...........................................(mention full name) resident of (complete postal address)...................................................... of full age and capacity and was born at (with Tehsil, District, State and Country)........................................................................... on..................and is a citizen of ...........................................
2.My father's full name is ...................................................and he was born at (with Tehsil, District, State and Country) ..........................on........................and is a citizen of.................................................................................
3.My mother's full name is ....................................... and she was born at with Tehsil, District, State and Country)....................... on..................and is a citizen of............................................
4.My wife's/husband's full name is ............................ and he/she was born at (with Tehsil, District, State and Country).....................on.........................and is a citizen of...................................................................................
5. Details of residence in India :
(a) Date of entry in India ..........................
(b) I have resided in India continuously for a period of 12 months immediately Yes/No preceding the date of application.
(c) During the eight years immediately preceding the said period of twelve months, I have resided in India for period amounting in the aggregate to not less than six years. Yes/No S. No. Details with address of residence in India for the last nine years From To Years Months 1 2 3 4 5
6. (a)Sex:...........................(b)Occupation.............................
(c) If in service, address of employer.................
(d) Mark of identification: .............................................
7. Passport particulars:
(a) Country:........................
(b) Number: ................................
8. Visa valid up to:............................................................
9. Details of family members who are staying in India with the applicant:
S. No. Name Present Address Relationship Age 1 2 3 4 5
10. Details of criminal proceedings, if any:
S. No. Nature of the criminal proceedings Date and place of registering the case Present status of the case Judgment of the court PART II
11. I have/have not previously renounced or been deprived of the citizenship of India.
(If the applicant has renounced his Indian citizenship, here state the date on which the declaration of renunciation was made; or if he has been deprived of his citizenship, state the date on which and the authority by whom, the order of deprivation was made.)
12. I have/have not previously applied for registration as a citizen of India and the application has/has not been rejected.
13. I hereby declare that my intention is to make India my permanent home and undertake that I shall renounce the citizenship of my country in the event of my application being sanctioned.
14. I,...................................................do solemnly and sincerely declare that the foregoing particulars, stated in this application are true and I make this solemn declaration conscientiously believing the same to be true.
Date: ................ Signature:.....................................
Made and subscribed this .........day ......of .....20..........before me.
*Signature...........................
*Designation........................
15. I, the undersigned, hereby state that I am an Indian citizen otherwise than by naturalization, that I am a householder, and that I am not the solicitor or agent of..................I vouch for the correctness of the statement made by..............................in his application for Indian citizenship.
Signature...................................
Name ........................................
Full postal address......................
...........................................
Oath of Allegiance I, ...................................................do solemnly affirm and swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established and that I will faithfully observe the laws of India and fulfill my duties as a citizen of India.
Signature...........................
Affirmed/Sworn and subscribed this.........day of.............20............before me.
*Signature..........................
*Designation.......................
*Signature and designation of the officer authorized under rule 38 of the Citizenship Rules, 2009, before whom the registration, declaration or oath of allegiance is made or taken. (i.e. the Collector, Deputy Commissioner, District Magistrate) II. CITIZENSHIP BY NATURALIZATION Section 6.
(1) Where an application is made in the prescribed manner by any person of full age and capacity [not being an illegal migrant] for the grant of a certificate of naturalization to him, the Central Government may, if satisfied that the applicant is qualified for naturalization under the provisions of the Third Schedule, grant to him a certificate of naturalization:
Provided that, if in the opinion of the Central Government, the applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any of the conditions specified in the Third Schedule.
(2) The person to whom a certificate of naturalization is granted under sub-section(1) shall, on taking the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalization as from the date of which that certificate is granted."
Qualifications for Naturalization The qualifications for naturalization of a person who is not a citizen of a country specified in the First Schedule are:-
(a) that he is not a subject or citizen of any country where citizen of India are prevented by law or practice of that country from becoming subjects or citizens of that country by naturalization;
(b) that, if he is a citizen of any country, he has renounced the citizenship of that country in accordance with the law therein in force in that behalf and has notified such renunciation to the Central Government;
(c) that he has either resided in India or been in the service of a Government in India or partly the one and partly the other, throughout the period of twelve months immediately preceding the date of the application;
(d) that during the [twelve years]* immediately preceding the said period of twelve months, he has either resided in India or been in the service of a Government in India, or partly the one and partly the other, for periods amounting in the aggregate to not less than[nine years]*;
(e) that he is of good character;
* now amended to 14 and 11 year respectively w.e.f. 03.12.2004
(f) that he has an adequate knowledge of a language specified in the Eighth Schedule to the Constitution; and;
(g) that in the event of a certificate of naturalization being granted to him, he intends to reside in India, or to enter into or continue in, service under a Government in India or under an international organization of which India is a member or under a society, company or body of persons established in India;
2)Provided that the Central Government may, if in the special circumstances of any particular case it thinks fit,-
(i) allow a continuous period of twelve months ending not more than six months before the date of application to be reckoned, for the purposes of clause(c) above, as if it had immediately prescribed that date;
(ii) allow periods of residence or service earlier than[thirteen years] before the date of the application to be reckoned in computing the aggregate mentioned in clause(d) above.
Application for grant of citizenship by naturalization under sub-section(1) of section 6- An application from a person for naturalization as a citizen of India under sub-section(1) of section 6 shall not be entertained unless-
(a) the application is made in Form VIII;
(b) he gives an undertaking in writing that he shall renounce the citizenship of his country in the event of his application being sanctioned; and
(c) the application is accompanied with
(i) a duly stamped affidavit verifying the correctness of the statements made in the application alongwith two affidavits from Indian citizens testifying the character of the applicant; and
(ii) a certificate depicting that the applicant has adequate knowledge of one of the languages specified in the Eighth Schedule to the Constitution of India.
Explanation-(i)The applicant shall be considered to have adequate knowledge of the concerned language if he can speak or read or write that language.
Explanation-(ii) The certificate may either be issued by a recognized educational institution or a recognized public organization or from two persons of the locality or district of the applicant who are citizens of India.
FORM VIII [See rule 10 (1) (a)] The Citizenship Rules, 2009 APPLICATION FOR NATURALIZATION AS A CITIZEN OF INDIA UNDER SECTION 6(1) OF THE CITIZENSHIP ACT, 1955 Note: Please write/print in BLOCK LETTERS PART I PHOTOGRAPH
1. Full name of the applicant:.......................................................... If commonly known by another name, enter such name here: ................................
2. Present address :..............................................................
....................................................................................
3. (a)Sex:.......................(b)Occupation............................
(c) If in service, address of employer:...........................
(d) Mark of identification:............................................
4. Place and date of birth:................................................
5. Nationality by birth:......................................................
6. Present nationality, if different:...................................
7. (a) Marital Status:......................................................
(b) If married, give date and place of marriage and nationality of the spouse :................
(c) Husband's or wife's name......................................
8. Father's full name is..................................................resident of...................................................and he was born at (with Tehsil, District, State and Country).................on............and is a citizen of................................................
9. Mother's full name is...................................................................
resident of..........................................................and he was born at (with Tehsil, District, State and Country).................on ......................and is a citizen of.................................
10. Whether the applicant is a subject or citizen of any country where an Indian citizen is prevented by law or practice of that country from becoming a subject or citizen of that country by naturalization. .....................
11. Principal languages of India known and extent of knowledge thereof with evidence...............
12. Details of residence in India:
(a) Date of entry in India :.......................................
(b) I have resided in India continuously for a period of twelve months immediately preceding the date of application. Yes/No
(c) During the fourteen years immediately preceding the said period of twelve months, I have resided in India for a period amounting in the aggregate to not less than eleven years. Yes/No S. No. Details with address of residence in India for the last nine years From To Years Months 1 2 3 4 5
13. Reasons for which applicant wishes to acquire Indian citizenship: ...........................................
14. Passport particulars:
(a)Country:........................
(b)Number:.........................
15. Visa valid up to:......................................................
16. Details of family members who are staying in India with the applicant:
S. No. Name Present Address Relationship Age 1 2 3 4 5
17. Details of criminal proceedings, if any:
S. No. Nature of the criminal proceedings Date and place of registering the case Present status of the case Judgment of the court 1 2 3 4 5
18. Names and addresses of at least two persons whose affidavits testifying to the character of the applicant and the correctness of the statements made in this application are attached herewith: ..................
PART II
19. I have/have not previously renounced or been deprived of the citizenship of India.
(If the applicant has renounced his Indian citizenship, here state the date on which the declaration of renunciation was made; or if he has been deprived of his citizenship, state the date on which and the authority by whom, the order of deprivation was made.)
20. I have/have not previously applied for naturalization as a citizen of India and the application has/has not been rejected.
21. I declare that my intention is to make India as permanent home and I undertake that I shall renounce the citizenship of my country in the event of my application being sanctioned.
22. I,............................................do solemnly and sincerely declare that the foregoing particulars, stated in this application are true, and I make this solemn declaration conscientiously believing the same to be true.
Date: ................ Signature:............................
Affidavit to accompany the application for a certificate of naturalization under the Citizenship Act, 1955.* In the matter of the application for a certificate of naturalization under the Citizenship Act, 1955, I......................................son of ........................ residing at .................................................make oath and do solemnly and sincerely affirm that the statements contained in my application here unto annexed are true to the best of my knowledge and belief.
If, at any time before a certificate is issued to me, the accuracy of any of the foregoing particulars is affected by an alteration in circumstances, I undertake to inform the Secretary to the Government of India in the Ministry of Home Affairs in writing forthwith.
Station.................... Signature.........................
Date .....................
Affidavits to be attested by Notary/Oath Commissioner/Magistrate.
Affidavits testifying the character of the applicant and the correctness of the statements made in the application.
(vide item 18) In the matter of an application for a certificate of naturalization under the Citizenship Act, 1955, made by ........................ I.................... aged..................years, by occupation...........................son of .........................residing at ...............................make oath and do solemnly and sincerely affirm that I am an Indian citizen otherwise than by naturalization; that I am a householder; that I am not a solicitor or agent of ............................that I have personal knowledge of, and intimate acquaintance with, the said .....................for...................years; that the statements contained in his application for naturalization are true to the best of my knowledge and belief.
I support ......................................'s application for naturalization and I can vouch for his good character and loyalty.
Date ............................. Signature.....................................
Name ........................................
Full postal address........................
...............................................
Copies of two issues (in triplicate) of a newspaper or newspapers circulating in the district in which the applicant resides each containing (clearly marked) an advertisement in the following form should accompany the application.
"Notice is hereby given that....................son/daughter/wife of...........................is applying to the Secretary to the Government of India in the Ministry of Home Affairs for naturalization and that any person who knows any reason why naturalization should not be granted should send a written signed statement of the facts to the said Secretary."
GRANT OF CERTIFICATE OF NATURALIZATION-
1. Every person who by naturalization is made a citizen of India under sub-section(1) of section 6 shall be issued a certificate of naturalization in Form XII signed by an officer not below the rank of Under Secretary to the Government of India.
2. A copy of the certificate of naturalization issued under this rule, shall be preserved for the purposes of record by the issuing authority.
9.Undoubtedly, in the instant case the respondent no. 1 has obtained the certificate under Section 5, and not under Section 6 of the Act as stated above. Section 6 provides that the certificate of naturalization is required to the person if in the opinion of the Central Government, the applicant is a person who has rendered distinguished service to the cause of science, philosophy, literature, world peace of human progress generally, it may waive all or any of the conditions specified in the Third Schedule.
10.From the above, it is crystal clear that "Citizenship by Naturalization" is a separate category. Respondent no. 1 does not fall under it. Section 5 prescribes the "citizenship by registration" that a person of Indian origin who is ordinarily resident in India for seven years before making an application for registration. One of the conditions mentioned in Sub-clause 5(1)(c) is a person who is married to a citizen of India or the original resident of India for 7 years before making an application for registration. The respondent no. 1 falls under this category.
11.Needless to mention that the naturalization is also a mode of acquiring citizenship like the "Green Card" in United States of America. The citizenship can finally be acquired either by having a "certificate of registration" or by a "certificate of naturalization", if the candidates fulfill the conditions of Section 5 or Section 6 of the Citizenship Act, 1955 as the case may. Naturalization is the mode for acquisition of the citizenship by somebody who was not a citizen of that country when he/she was born.
(a) As per the Oxford Dictionary the meaning of naturalization is "admit (a foreigner) to the citizenship of a country"; and
(b) as per the Law Lexicon (2nd Edition) the meaning of Naturalization is an act of adopting a foreigner, and clothing him with the privileges of a native citizen."
12.In general, basic requirement for naturalization is that the applicant hold a legal status as citizen of India provided he/she fulfills the required conditions including the stay for the minimum period of prescribed time and that the applicant promises to obey and uphold that country's laws, to which an oath or pledge of allegiance is sometimes added. Some countries also require that a naturalized national must renounce any other citizenship which he/she currently holds, forbidding dual citizenship, but whether this renunciation actually causes loss of the person's original citizenship will again depend on the laws of the countries involved.
13.The citizenship is traditionally based either on jus soli ("right of the territory"); or on jus sanguinis("right of blood"), although it now usually mixes both. Whatever the case may be, the massive increase in population flux due to globalization and the sharp increase in the number of migrants create an important class of non-citizen sometimes called denizens.
14.In India, Section 6 of the Citizenship Act, 1955 provides that where an application is made in the prescribed manner by any person of full age and capacity (not being an illegal migrant) for the grant of a certificate of naturalization to him, the Central Government may, if satisfied that the applicant is qualified for naturalization under the provisions of the Third Schedule, grant to him a certificate of naturalization. There is a separate form and procedure for applying the citizenship by naturalization as mentioned above.
15.In United State of America, the naturalization is also mentioned in the 14th Amendment. The Amendment states that " all persons born or naturalized in the United States and subject to the jurisdiction thereof shall be citizens of the United States and of the State in which they reside". To maintain the singular citizenship, the Naturalization Act, 1798 was passed in USA. Accordingly, in America, a foreigner can first of all have to acquire the "Green Card" (naturalization) and later full-fledged citizenship. Thus, the naturalization is one of the mode to acquire the citizenship. But in India, there is no such concept like "Green Card"
16.In India, the citizenship can be acquired directly either by registration under Section 5; or by naturalization under Section 6 of the Citizenship Act, 1955. The registration is a better category which reduces time period and gives a better right especially through marriage to an Indian citizen i.e. jus matrimonii or by having ancestors who are the citizens of the country. In order to reduce the scope of this category, however, citizenship by naturalization can be extended to the persons who were not married to the Indian citizens and not related to the Indian citizens by blood or by soil but doing distinguished services to the cause of science, philosophy, art, literature and world peace of human progress etc. or having long stay in India. For example Dalai Lama was granted the citizenship by naturalization. The Hon'ble Supreme Court in the case of K. Krishna Vs. Union of India and ors. J.T. 2007(7) SC 258 observed that under Section 6 for claiming citizenship by naturalization, an individual has no right to have it. It is the pleasure of the Government of India to grant or not to grant. But under Section 5, after the marriage with the Indian citizen, the applicant has better right to have citizenship by registration. Thus, both are separate categories and citizenship by registration is certainly a better category which was availed by the respondent no. 1 in the instant case.
17.Thus, citizenship can be acquired by four ways mentioned below:-
(i) By birth;
(ii) By marriage
(iii) By naturalization;
(iv) By denization In India, first two categories are covered by "Certificate of registration"(Sec.5); and last two categories are covered by "certificate of naturalization"(Sec.6) as per Indian Citizenship Act, 1955. Both certificates are alternative to each other and certainly not supplemental to each other. But result will be the same i.e. to acquire the citizenship. There is no classification of citizenship. Singular citizenship is available on getting either of the above said certificates. Thus, the certificate holder shall be entitled to enjoy all civil and political rights alike. The copy of the certificate granting "Citizenship" to respondent no. 1 dated 30.04.1983 is on record.
Needless to mention that Article 84 of the Constitution provides inter alia that a person shall not be qualified to be chosen to fill a seat in Parliament unless he or she is a citizen of India. Article 102 of the Constitution provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament inter alia if he/she is not a citizen of India or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State and that a returned candidate was 'not qualified' or 'was disqualified' to be chosen on the date of his election, is specifically a ground for declaring his election void under clause (a) of sub-section (1) of Section 100 of RPA, 1951.
Similarly, Section 83(1)(a) of Representation of People Act,1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. In other words, there must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. Merely quoting the words of the Section like chanting of a mantra does not amount to stating material facts. Material facts are such preliminary facts which must be proved by the petitioner to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition.
In the instant case, it is crystal clear that by virtue of the certificate granted to her under Section 5(1)(c) of the Citizenship Act, which has never been cancelled, withdrawn or annulled till date, the respondent No.1 is "a citizen of India". The present petition is filed nearly three decades after the grant of citizenship to the respondent. The citizenship certificate was issued on 30th April, 1983 in the name of Sonia Gandhi alias Antonio Maino (copy on record). At no point of time, the petitioner did even challenge the inclusion of her name in the Electoral Roll. Making vague and bald allegations, without giving any material facts, show that proper care was not taken before filing the petition by gathering and stating all material facts. The challenge laid to the validity of election on the basis of the marriage certificate as well as certificate by registration of the respondent no. 1 not only suffers from deficiency in pleadings but is also scandalous.
In view of the above, the plea that a returned candidate is not a citizen of India and hence not qualified, or is disqualified for being a candidate in the election is not sustainable.
The election petition being devoid of merits is accordingly dismissed.
Order Date :- 14.02.2011.
VNP/-
Hon'ble Dr. Satish Chandra, J.
Dismissed vide my order of date passed on separate sheets.
Order Date :- 14.02.2011.
VNP/Ele. Pet. 1/2009