Tuesday, January 31, 2012

The Indian Citizenship Act, Sonia Gandhi & Dr. Subramanian Swamy


You must have heard these three names quite often and together on various occasions. You might heard them for the following reasons:

1. Dr. Subramanian Swamy stopped Sonia Gandhi in her tracks by invoking Section 5 of Indian Citizenship Act 1955 and not letting her become the Prime Minister of India.

http://www.janataparty.org/annexures/ann03p22.html

2. K S Sudarshan & Dr. Subramanian Swamy claim that BJP paved the way for Sonia Gandhi’s political participation by amending the Indian Citizenship Act 1955. They say Vajpayee Govt removed a certain reciprocity clause that existed in the Act prior to 2003 amendment.

At the centre is the Reciprocity Clause. What is it?

The Clause under discussion is Section 5(1)(e), as it existed prior to 2003 amendment. For everyone’s comfort, I shall reproduce entire Section 5, since that is what gets mentioned generally.

Section 5. Citizenship by registration
(1) Subject to the provisions of this section and such conditions and restrictions as may be prescribed, the prescribed authority may, on application made in this behalf, register as a citizen of India any person who is not already such citizen by virtue of the Constitution or by virtue of any of the other provisions of this Act and belongs to any of the following categories,-
(a) persons of Indian origin who are ordinarily resident in India and have been resident for five years immediately before making an application for registration;
(b) persons of Indian origin who are ordinarily resident in any country or place outside undivided India;
(c) persons who are, or have been, married to citizens of India and are ordinarily resident in India and have been so resident for five years immediately before making an application for registration.
(d) minor children of persons who are citizens of India; and
(e) persons of full age and capacity who are citizens of a country specified in Schedule I:
PROVIDED that in prescribing the conditions and restrictions subject to which persons of any such country may be registered as citizens of India under this clause, the Central Government shall have due regard to the conditions subject to which citizens of India may, by law or practice of that country, become citizens of that country by registration.

Explanation : For the purposes of this sub-section, a person shall be deemed to be of Indian origin if he, or either of his parents, was born in undivided India.

(2) No person being of full age shall be registered as a citizen of India under sub-section (1) until he has taken the oath of allegiance in the form specified in Schedule II.

(3) No person who has renounced, or has been deprived of his, Indian citizenship, or whose Indian citizenship has terminated, under this Act shall be registered as a citizen of India under sub-section (1) except by order of the Central Government.

(4) The Central Government may, if satisfied that there are special circumstances justifying such registration, cause any minor to be registered as a citizen of India.

(5) A person registered under this section shall be a citizen of India by registration as from the date on which he is so registered; and a person registered under the provisions of clause (b)(ii) of Article 6 or Article 8 of the Constitution shall be deemed to be a citizen of India by registration as from the commencement of the Constitution or the date on which he was so registered, whichever may be later.


In Section 5(1)(e), where the reciprocity clause is mentioned, you will see a mention of Schedule 1 countries. The Reciprocity clause mentioned along, in this sub-section is specifically for countries listed in the Schedule 1 of this Act.

The Schedule 1 of this Act is primarily about the Commonwealth Countries. I am re-producing it here for everyone’s convenience:

SCHEDULE I
[Sections 2(1)(b) and 5(1)(e)]

A. The following Commonwealth countries:
1. United Kingdom
2. Canada
3. Commonwealth of Australia
4. New Zealand
5. Union of South Africa
6. Pakistan
7. Ceylon
8. Federation of Rhodesia and Nyasaland
9. Ghana
10. Federation of Malaya
11. Singapore

B. The Republic of Ireland

Explanation: In this Schedule, "United Kingdom" means the United Kingdom of Great Britain and Northern Ireland, and includes the Channel Islands, the Isle of Man and all Colonies; and "Commonwealth of Australia" includes the territories of Papua and the territory of Norfolk Island.


It is clear from the Text of Schedule 1 of Indian Citizenship Act 1955, as it existed before 2003, that the Schedule is in relation to Section 5 (1) (e). You’ll not find a mention of Italy in this list.

Does the clause of Reciprocity apply to entire Section 5 or only to Section 5(1)(e)

The clause clearly applies to Section 5(1)(e) only. Apart from simple reading, the proof of this is also available in Section 11 & Section 12, which both related to special provisions for Commonwealth Countries and specially the Section 12, which relates to Reciprocity with Commonwealth. I am providing the text of Section 11 & 12 for everyone’s convenience:

11. Commonwealth citizenship
Every person who is a citizen of a Commonwealth country specified in Schedule I shall, by virtue of that citizenship, have the status of a Commonwealth citizen of India.
12. Power to confer rights of Indian citizen on citizens of certain countries
(1) The Central Government may, by order notified in the Official Gazette, make provisions on a basis of reciprocity for the conferment of all or any of the rights of a citizen of India on the citizens of any country specified in Schedule I.
(2) Any order made under sub-section (1) shall have effect notwithstanding anything inconsistent therewith contained in any law other than the Constitution of India or this Act.

What does this all mean?

It simply means, even if this Sub-section 5(1)(e) had been retained during the 2003 amendment by NDA Govt, there was nothing in the Indian Citizenship Act 1955 that restricted an Italian from contesting elections under any Reciprocity Clause and, therefore, from occupying high Constitutional Offices including that of the Prime Minister.

What is Dr. Subramanian Swamy talking about?

I don’t know. Since the Sub-section 5(1)(e) was dropped during the 2003 Amendment which came into force in January 2004, by the time of 2004 elections in May, even if this clause had any chance of stopping Sonia Gandhi from becoming Prime Minister, Dr. Swamy wouldn’t have had the benefit of this clause. What Dr. Swamy clearly submitted to President Dr. A P J Abdul Kalam was a copy of Indian Citizenship Act 1955 that had already lapsed.

What did BJP amend in the Indian Citizenship Act 1955, in 2003?

It is very important to understand that any change to any Act of the Parliament can only be done in the Parliament. Certain people like K S Sudarshan have tried giving the impression that amendments to this Act were done surreptitiously. Nothing can be further from truth. The amendments are made in Parliament and usually for something as important as this Act, there is usually a healthy debate between Treasury & Opposition benches.

The Citizenship Amendment Act 2003 made two important changes in the act

1. Creation of a new status of citizenship for PIOs/Overseas Indians through Overseas Citizens category
2. Removal of all clauses that gave any special status to Commonwealth Nations & its Citizens

Overseas Citizens of India

Rajyasabha discussed the Bill & passed it on 18th December 2003 and Loksabha discussed & passed the Bill on 22nd December 2003. The Bill received high priority because Government of India had promised a special status for Persons of Indian Origin (PIO) and a fulfillment of this promise in the form of Overseas Citizens of India status to PIOs was necessary. The Diaspora Conference with the PIOs was due between 5th-7th January 2004. For this purpose, an amended Act received President’s Assent on 7th Jaunary 2004.

Through addition of Section 7(a) on Overseas Citizens, a new chapter on India’s relation with Indian Diaspora abroad was started. However, since the Citizenship under this Section came with restrictions which were listed in Section 7 (b) (2). I am re-producing those restrictions here for everyone’s convenience:

Section 7(b)(2): An overseas citizen of India shall not be entitled to the rights conferred on a citizen of India

a. Under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;
b. Under article 58 of the Constitution f b. or election as President;
c. Under article 66 of the Constitution for election of Vice-President;
d. Under article 124 of the Constitution for appointment as a Judge of the Supreme Court;
e. Under article 217 of the Constitution for appointment as a Judge of the High Court;
f. Under section 16 of the Representation of the People Act, 1950 in regard to registration as a voter;
g. Under sections 3 and 4 of the Representation of the People Act, 1951 with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be.
h. Under sections 5, 5A & 6 of Representation of the People Act 1951 (43 of 1951) with regard to eligibility for being a member of the Legislative Assembly or a Legislative Council, as the case me of, of a State;
i. For appointment to public services and posts in connection with the affair of the Union or any State except for appointment in such services & posts as the Central Government may by special order in the behalf specify.


Deletion of Sections giving special status to Commonwealth Nations & their Citizens

In the Citizenship Amendment Act 2003, we find Sections dealing with Commonwealth nations giving them special and preferred status were all deleted. The Deleted Section, from the earlier Act were:

1. 2(1)(b)
2. 5(1)(e)
3. Substitution in Section 6(1)
4. 11
5. 12
6. Schedule 1
7. Part omission in Schedule 2

All of these sections dealt with Citizenship Issue with respect to Commonwealth Nations & their Citizens. With the deletion, India de-recognized Commonwealth as a special group as far as Citizenship goes.

Conclusion

BJP has clearly strengthened The Citizenship Act. Citizenship Act, per se, has nothing that can stop an Indian of foreign origin from running for Public Offices. To the best of my knowledge there is nothing in the Representation of the People Act either. Except for Overseas Citizens, all Citizens of India, irrespective of their past Citizenship have the right to vote and all those who can vote can stand for elections and all those who win elections are eligible for occupation of High Offices.

Lets stop wasting our time on useless issues.

18 comments:

  1. Has Dr. Swamy read this? What does he have to say about this? This language is difficult to understand for a common man like me. But if your conclusion says that there was nothing in constitution that could stop sonia from becoming a PM, then why did she denied after Dr. Swamy's letter to the president. She ain't that fool, that she would not have verified Dr. Swamy's arguement from her best minds. Also neither is Dr. Swamy a guy who would just present something which does not hold a meaning in legal or constitution terminology. So I am confused ! Sonia is not PM because she did not want to be, or she accepted Dr. Swamy's argument without re searching enough. Or Dr. Swamy just played a card and that worked !! Whats the truth?

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    1. even dr swamy misread the act ......

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    2. Quite right. Sir, would you like to identify yourself?

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    3. Post by Thinker's Pad is worth highest appreciation...
      Sunil Thacker @ Subramaniam Swamy is born to the politics for simply opposing the Gandhi dynasty.... so dont ever believe what he writes or says... Supreme Court has rejected almost all of his pleas as of now... barring some ...like Juvenile in Rape cases, etc

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  2. there is another issue which prevent sonia to become pm , that is its not clear that she terminated her italian citizenship or not
    is indian citizenship act allows having citizenship of 2 nation at same time
    this also will also bite rahul-priyanka

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  3. This puts one's head in a spin Piyushji. This is meant more for Political Science students than the common layman, honestly :):):).

    I have read and understood it. But to recount its merits or demerits would be too intricate an exercise for me. I commend your understanding of the constitutional amendments that have catered to nothing short of any foreigner of Indian Origin or having Indian Voters ID stand for public office, be it the highest if need be.

    So what kept Sonia Gandhi from the PM's post is a curious case to be studied. What prompted the then President to advice her to the contrary too would be worthy of education. Will await your analysis for this.

    Meantime thanks for this wonderful education. Phew! what will we do without knowledgeable bloggers like you?

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  4. Digvijay raises citizenship issue of Balkrishan , associate of Swami Ram Dev, the issue may backfire, their own party would be facing the music. Your article was informative.

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  5. Ye Piyush...We know that you are paid KHANGRESSI, bhrast, antiNational element....

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  6. if someone said against bjp/rss/congress/iac or anything donot mean that he is anti national or paid writer, the thing you need to look is that,is there is fact or not, if so accept it, else reject it, why are so sence about paid ? does that because you dont getting any?

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  7. Subramanian Swamy is a man driven by the ideology of hatred and has not been rebuffed convincingly yet. His cancer will be publicly opereated soon. Wait and watch.

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  8. I am afraid that what is written here about Commonwealth Citizens in India is not what happens now, It did happen before 1967, but then all persons who are not Indian Citizens were deemed Foreigners and had to register as such with the District HQ of Police. They were given Residence for one year at a time, and a visa had to be obtained to leave India, and another one to return. The massive queues at the Indian Hign Commissions in Commonwealth Countries witness to this situation as Commonwealth Citizens attempt to gain Visitors Visas.

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    1. Obviously Commonwealth Citizenship doesn't exist in India anymore. The concerned sections were repealed in 2003.

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  9. Sir I have a few doubt on this.

    Did 2003 amendment have a retrospective effect?
    Did Mrs Gandhi file citizenship after 2003 act?

    If it is not then she isn't a citizen as per 1955 law?

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    1. 2003 amendment didn't have retrospective effect. Sonia Gandhi because citizen before 2003 Act. And she remains Citizen of India.

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  10. It is confusing how sec 5(1)(e) is relevant . A person can become citizen under sec 5(1)(c) ,.i.e , being married to an Indian citizen and resident for 5 years . How , 5(1)(e) is relevant.

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    1. This is absolutely absurd interpretation given to section 5 (1).

      1. Section 5(1) says that subject to the provisions of this section and such conditions and restrictions as may be prescribed…… This means that the provisio which mentions the reciprocity clause is for section 5(1) and not merely for section 5 (1) (e). When section itself talks about the restrictions it is but natural that guidelines for prescribing restrictions relates to this only.

      2. The section 5(1) enumerates the possible cases under sub section 5 (1) (a) to 5 (1) (e) where a person can become a citizen by registration.

      3. Lets test sub sections in the instant case to find out the applicability of sub section for the person who has applied to become a citizen in the instant case.
      • Sub section (a) is for person of Indian origin and resident in India now want to be citizen----Not applicable
      • Sub section (b) of for person of Indian origin but resident in a country outside India---Not applicable
      • Sub section (d) for Minor children of persons who are citizen of India ---Not Applicable
      • Sub section (e) for citizens of country as per schedule 1. Italy is not in the list so ---Not applicable
      • Sub section (c) for those who are married to citizen of India---In this case this sub section is applicable.

      4. So the section applicable in the instant case is section 5(1)(c) and is definitely subject to proviso “that in prescribing the conditions and restrictions subject to which persons of any such country may be registered as citizens of India under this clause, the Central Government shall have due regard to the conditions subject to which citizens of India may, by law or practice of that country, become citizens of that country by registration”

      It is mischievous or erroneous that the proviso was dropped in amendment while amending the section 5(1) (e) and inserting more clauses, as the provision of reciprocity is for section 5(1) and the amended act still mentions the line “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”

      Therefore questions raised by SS are relevant and meaningful.

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    2. 5 (1)(e) was discussed because Dr. Swamy alleged deletion of Reciprocity Clause was done to accommodate Sonia Gandhi. Reciprocity Clause never applied to 5(1)(c). It applied only to 5(1)(e) which related to Commonwealth Citizenship.

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  11. To the Anonymous guy who has written a long reply: Kindly check Court Verdicts on this matter. Courts have been categorical that Reciprocity Clause is only for Section 5(1)(e). Links to the Judgments are given in the Blog itself.

    Please read properly before jumping to conclusions. And I am sorry to say, but you have given an extremely stupid, contradictory statement & example about application of Reciprocity Clause.

    Thanks.

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