Friday, April 13, 2012

Citizenship Act, Sonia Gandhi & Dr. Subramanian Swamy - Part 2


Since my last post explaining why Indians shouldn’t believe Citizenship Act 1955, either in the past or now, can stop Sonia Gandhi from assuming any high Constitutional Office in India, a lot of comments, war of words, counter-arguments, new perspectives as well as hard facts have emerged. Most of the conversation has been on Twitter.

It was therefore natural that I must write a continuity piece to my post The Indian Citizenship Act, Sonia Gandhi & Dr. Subramanian Swamy - http://thinkers-pad.blogspot.in/2012/01/indian-citizenship-act-sonia-gandhi-dr.html

Since it is purely an academic exercise, we’ll delve only into new perspectives raised by those who have followed Dr. Subramanian Swamy’s supporters as well as certain new irrefutable facts that have emerged.

Additional Perspectives

1. That Sonia Gandhi received her citizenship on 30th April 1983, whereas, certain amendments to Section 5(1)(c), under which she received her Citizenship came in 1986, effected in 1987. Therefore, her Citizenship is null & void.
2. The Reciprocity Clause applied to entire Section 5 of Citizenship Act 1955, which was deleted in Citizenship Amendment Act 2003 by the NDA Govt. and that the said Amendment Act was carried out in a hurry.
3. That Citizenship Amendment Act 2003 itself is invalid as the Omission of Reciprocity clause had not been mentioned in the Statement of Objects & Reasons.
4. Sonia Gandhi’s name was in voter list in 1980, whereas she became a citizen of India only in 1983. And this act is enough to cancel her Citizenship.
5. Rahul Gandhi has been added to this debate, where Dr. Subramanian Swamy claims he can stop Rahul from becoming Prime Minister of the Country under Article 18, Article 102 & Article 103.

These are the five interesting perspectives presented. We will discuss these perspectives in some detail first and then proceed to check additional, irrefutable facts later.

Additional Perspective 1: Amendment of Section 5(1)(c) in 1986

When I heard it first, I thought Dr. Swamy has possibly caught the hitch which will disqualify Sonia Gandhi’s citizenship and with that any chance of Indians being ruled by this Italian.

Unfortunately, when I read the Section 5(1)(c), as it existed prior to 1986 amendment of Citizenship Act 1955, I found it is another misguided missile. I am re-producing it here for everyone’s convenience.

Pre-1986, Section 5(1)(c) of Citizenship Act 1955 read as “Women 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.”


After 1986 Amendment the same Section 5(1)(c) reads as, “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”


This can be checked here in this copy of Citizenship Act 1955, Point 7 on the Last Page. http://www.scribd.com/doc/83078536/Citizenship-Act-1955-No-57-of-1955

Basically the Act was amended to include people of both male & female gender by replacing the word “Women” with “Persons”.

Sonia Gandhi is a Woman and about that, I presume, there is no doubt.

Additional Perspective 2 (part 1) – Application of Reciprocity Clause to entire Section 5 and not just 5(1)(e)

I have dealt with this question in my earlier post on the same subject, which can be accessed here: http://thinkers-pad.blogspot.in/2012/01/indian-citizenship-act-sonia-gandhi-dr.html

However, since this point emerges regularly, I will quote at least two Court cases as well as the Statement of Objects and Reasons as described in the Original Act of 1955.

Case 1 - R Venkateshwara Rao Vs. Union of India and Others
Paragraph 12 of the Judgment of Andhra Highcourt given on 23rd April 1999 in R Venkateshwara Rao Vs. Union of India and Others, explaining application of reciprocity to Section 5(1)(e) only must be read to understand this point clearly. While the Judgment and the relevant Paragraph can be accessed here: http://www.scribd.com/doc/83059302/R-Venkateshwara-Rao-vs-Union-of-India-and-Others-on-23-April-1999 I am re-producing the Paragraph 12 here for everyone’s convenience.

“12. Citizenship is a relationship of sovereign and subject and so far as Indian Constitution or the Citizenship Act are concerned, no distinction is drawn in the status of citizen - whether a born citizen (Section 3), citizen by descent (Section 4) or citizen by registration (Section 5(1)(a) to (d)). The citizens under the above legal provisions arc treated on par and are entitled for all civil and political rights. There is a distinction drawn only with regard to citizenship under Section 5(1)(e) as also Section 6(1) of the Act. Question of reciprocity as argued by the learned Counsel for the petitioner is relevant only in the context of the citizenship conferred on foreign nationals under the above two legal provisions - Section 5(1)(e) and Section 6(1) of the Act. While under Section 5(1)(e) of the Act, a person is admitted as a citizen of India, subject to such rights the native Indians enjoy in the countries enumerated in the First Schedule of the Act, insofar as citizen by naturalization under Section 6(1) of the Act is concerned, no subject or citizen of any country where citizens of India are prevented by law or practice of that country from becoming subjects or citizens of that country by naturalisation, can be naturalised as Indian citizens.”

Even when one reads Paragraph 13 of the same judgment, one can easily figure that Reciprocity doesn’t apply to Section 5(1)(c) of Citizenship Act, under which Sonia Gandhi has taken citizenship. People can read it in the link provided above. However, I am re-producing an extract from Paragraph 13 here for everyone’s convenience.

“13. From the above discussion, it is clear that for conferment of citizenship by registration under Section 5(1)(c) of the Act, no reciprocity has been imposed by the Parliament. Under Section 5(1)(c) of the Act, there are twin conditions for acquiring the citizenship viz., (i) marriage to an Indian citizen and (ii) 5 years stay in India at the time of making application for registration as a citizen. It is not in dispute that the 8th respondent had complied these conditions and as such, was conferred with the status of Indian citizenship by the Central Government in exercise of the powers under Section 5(1)(c) of the Act. It is for the Parliament, which is the legislative body, to prescribe conditions while conferring citizenship; but merely because conditions have not been prescribed, thus, enabling the citizen of foreign origin to contest for the political post, it cannot be said that the provision is unconstitutional.”


Case 2 – T A Usman Mahomed Vs. State of Madras

This is a case which was filed within 4yrs of enactment of Citizenship Act 1955 and Madras High Court gave its judgment on 17th November 1959. The case per se is a very interesting one, however, our attention here is going to be on application of Reciprocity Clause to Section 5(1)(e). This point has been explained nicely in Paragraph 16, under Point 5 of Explanation on Page 6 of this Document. This can be read here: http://www.scribd.com/doc/89206967/T-A-Mahomed-Usman-vs-State-of-Madras-on-17-November-1959

However, I am re-producing it here for everyone’s convenience.

“(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." It would be noticed that Section 5(1)(e) refers to persons, who are citizens of a country specified in the first schedule. This has to be read in conjunction with Section 11, under, which 'every person who is a citizen of a Commonwealth country specified in the First Schedule shall by virtue of that citizenship have, the status of a Commonwealth citizen of India', and the terms of Section 12 which enables the Central Government to "make provision on the 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 the First Schedule". The first schedule sets out, inter alia, the Commonwealth countries and includes in that list Pakistan.”


Section 11 & 12 of Citizenship Act 1955, prior to its amendment in 2003, also explain the application of Reciprocity Clause to Section 5(1)(e) alone, as it deals with Commonwealth Nations. I have explained it in my earlier post on this subject.

Case 3 – The Statement of Objects and Reasons of the original Citizenship Act 1955

The Statement of Objects and Reasons of the original Citizenship Act 1955, as enacted on 30th December 1955 by the President of India, makes it very clear that Reciprocity Clause was meant for citizens of Commonwealth Countries taking Indian Citizenship. This can be read on Page 10, 2nd Paragraph under Statement of Objects & Reasons, here: http://www.scribd.com/doc/89203772/Citizenship-Amendment-Act-2003-Contains-Statement-of-Objects-and-Reasons-of-the-Original-Act-of-1955

I am re-producing it here for everyone’s convenience.

“The Bill also seeks to formally recognize Commonwealth citizenship and permit the Central Government to extend on a reciprocal basis such rights of an Indian citizen as may be agreed upon to the citizens of other Commonwealth countries and the Republic of Ireland.”


Additional Perspective 2 (part 2) – The Citizenship Amendment Act 2003 was carried out in a Hurry

On May 8, 1998 a Commission on Review of Administrative Laws was formed. This was headed by P C Jain and had three other members. This four member commission submitted its report in 2 Volumes on 30th September 1998 to the Government of India. 109 Central Acts had been referred to this Commission for review by the Union Govt. Citizenship Act 1955 was one of them.

Meanwhile in 2000, Dr. L M Singhvi High level Committee on Indian Diaspora was created under an order issued on 18th August 2000. This committee made various suggestions relating to Indian Diaspora worldwide and one of them was Overseas Citizenship status.

Based on this while Citizenship Act was being amended to include Overseas Citizenship status (with limited rights), sections relating to Commonwealth Nations and Citizenship were Omitted.

Originally, L K Advani presented this Bill to the Parliament on May 9, 2003 (Rajya Sabha). The Bill was then sent to the Parliamentary Standing Committee headed by Pranab Mukherjee. Here’s the link to the Rajya Sabha proceedings on tabling of the Bill on 9th May 2003: http://www.scribd.com/doc/89060694/Citizenship-Amendment-Bill-2003-9th-May-2003-Tabling-of-the-Bill

The Bill was presented again on December 18, 2003, after a gap of 7 months in Rajya Sabha and debated. It was presented then in Lok Sabha on December 22, 2003 and debated.

Rajya Sabha debate of 18th December 2003 - http://www.scribd.com/doc/89064031/Citizenship-Amendment-Bill-2003-Tabling

Lok Sabha debate of 22nd December 2003 - http://www.scribd.com/doc/89064397/Citizenship-Amendment-Bill-2003-Debate-in-LOK-SABHA

Since the second meet of Indian Diaspora was scheduled in Delhi on January 9-10, 2004, President of India Dr. A P J Abdul Kalam gave his assent to the Bill on January 7, 2004.

However, if people doubt either the intelligence of Dr. A P J Abdul Kalam or his integrity while giving his assent, then the entire story relating to Sonia Gandhi & Citizenship Act is humbug, as rumor mongers have also credited him with having stopped Sonia Gandhi from becoming PM based on Citizenship Act or Dual Citizenship issue.

Overall, the process of review and amendment of Citizenship Act seems to have been going on since 1998, which finally culminated in 2003.

Additional Perspective 3 – Invalidity of Citizenship Amendment Act 2003

As far as case of Sonia Gandhi’s disqualification from occupying Constitutional Offices is concerned, validity or invalidity of Citizenship Amendment Act 2003 is immaterial. However, for the sake of argument and clarity, let us spend a few minutes on this issue.

The argument given is that the Statement of Objects and Reasons of Citizenship Amendment Act 2003 didn’t cover the issue of removal of Reciprocity Clause. To know the truth, one simply needs to look at Paragraph 2(vii) of the Statement of Objects and Reasons of the Citizenship Amendment Bill 2003. The Statement of Objects and Reasons for 2003 Amendment is given on Page 9 of this Document: http://www.scribd.com/doc/89203032/Citizenship-Amendment-Bill-2003-Including-Statement-of-Objects-and-Reasons

However, I am re-producing the Statement of Objects & Reasons here for everyone’s convenience.

“STATEMENT OF OBJECTS AND REASONS

The Citizenship Act, 1955 which provides for the acquisition of citizenship, after the commencement of the Constitution by birth, descent, registration, naturalisation and incorporation of territory under certain circumstances, and also provides for the termination and deprivation of citizenship, was among those 109 Central Acts identified for a review by the Commission on Review of Administrative Laws constituted by the Central Government under the Chairmanship of Shri P.C. Jain in 1998. Subsequently, the High Level Committee on Indian Diaspora constituted by the Central Government, inter alia, recommended the amendment of this Act to provide for the grant of dual citizenship to persons of Indian origin belonging to certain specified countries. The Central Government has accordingly decided to make provisions for the grant of dual citizenship and has taken the opportunity of introducing a scheme for the compulsory registration of every citizen of India, and for this purpose to issue national identity cards.

2. The above objects are proposed to be achieved, inter alia, by amending provisions of the Citizenship Act so as to—
(i) make acquisition of Indian citizenship by registration and naturalization more stringent;
(ii) prevent illegal migrants from becoming eligible for Indian citizenship;
(iii) simplify the procedure to facilitate the re-acquisition of Indian citizenship by persons of full age who are children of Indian citizens, and former citizens of independent India;
(iv) provide for the grant of overseas citizenship of India to persons of Indian origin belonging to specified countries, and Indian citizens who choose to acquire the citizenship of any of these countries at a later date;
(v) provide for the compulsory registration and issue of a national identity card to all citizens of India;
(vi) enhance the penalty for violation of its provisions, as well as the rules framed under it; and
(vii) to omit all provisions recognizing, or relating to the Commonwealth citizenship from the Act.

3. The Bill seeks to achieve the above objects.

NEW DELHI; L. K. ADVANI.
The 7th May, 2003.”


Section 5(1)(e), 11, 12 and Annexure 1 of this Act related to Commonwealth Citizenship and were accordingly repealed. Therefore, the question of its validity or invalidity doesn’t arise. And all said and done, India is much farther away from being a Banana Republic that an Invalid Law would continue to exist.

Additional Perspective 4 – Sonia Gandhi’s name in Voter List of 1980 vis-à-vis her Citizenship in 1983

It is the best argument I have come across till now. I have not been able to verify this, but with good faith in Dr. Swamy, the scanned copy of 1980 Voter List carrying name of Sonia Gandhi does seem interesting. One can check the same here on Janta Party website: http://janataparty.org/annexures/ann15p61.html

And there is no doubt that Sonia Gandhi did become Indian Citizen on 30th April 1983. This information is as per CIC under RTI. The same can be checked here: http://www.scribd.com/doc/89066355/Shri-Milap-Choraria-vs-Ministry-of-Home-Affairs-Mha-on-12-June-2009

However, between 1999 & 2012, now, Dr. Swamy has not moved any court based on this information (as far as I know) and, therefore, if at all there is any substance in this allegation, someone from within Public will have to take the step forward.

Whoever moves court based on this information must verify facts before hand. If Dr. Swamy, who has gone to Allahabad Highcourt and Delhi Highcourt on some very trivial issues for Sonia Gandhi’s disqualification (and failed) has not taken up this matter, then a thorough investigation is called for before serious moves.

Additional Perspective 5 – Challenging Rahul Gandhi on PM-ship through Article 18, Article 102 & Article 103

This is what Dr. Swamy said:











Article 18 of Constitution of India refers to Abolition of Titles, has no relation to Rahul Gandhi’s possible Prime Ministership issue. Awaits necessary controversy to work using this article.

Article 102 has been thoroughly rejected in the Courts. Cases have been listed below, people can read themselves.

Under Article 103, a case by Dr. Swamy himself has been lost once in 2009 in Delhi High Court. Are there fresh facts coming up?

No further comments.

Time for other Hard Facts

1. Three court cases where Sonia Gandhi’s citizenship issue has been raised were read in detail. One case was R Venkateshwara Rao Vs. Union of India and Others in Andhra High Court where the Judgment was passed on 23rd April 1999. Second was Harishanker Jain Vs. Sonia Gandhi in Supreme Court where the Judgment was passed on 12th September 2001. Third was Rashtriya Mukti Morcha Vs. Union of India in Delhi High Court where the Judgment was passed on 24th November 2006.

R Venkateshwara Rao Vs. Union of India: http://www.scribd.com/doc/83059302/R-Venkateshwara-Rao-vs-Union-of-India-and-Others-on-23-April-1999

Harishanker Jain Vs. Sonia Gandhi: http://www.scribd.com/doc/83052896/Hari-Shanker-Jain-vs-Sonia-Gandhi-on-12-September-2001

Rashtriya Mukti Morcha Vs. Union of India: http://www.scribd.com/doc/89228541/Rashtriya-Mukti-Morcha-Through-vs-Union-of-India-Uoi-Through-on-24-November-2006

2. All three cases went in favor of Sonia Gandhi. The Judgments are elaborate. Have touched on all points raised in various public debates. In Harishanker Jain Vs. Sonia Gandhi lack of necessary evidence presented by the petitioners led to loss of case.
3. President A P J Abdul Kalam, who’s integrity cannot be doubted by ordinary mortals, and who’s career record doesn’t need any certificate for human intelligence has been dragged into this somewhat strange and unnecessary controversy. In order to extract himself out of this, President’s Secretariat issued a Press Release on May 19, 2004. You can read the same here: http://pib.nic.in/newsite/erelease.aspx?relid=1730

I am re-producing it here for everyone’s convenience.

“It has been reported in a section of the press that the President Dr. A.P.J. Abdul Kalam had discussed the citizenship issue with Smt. Sonia Gandhi when she met him yesterday at Rashtrapati Bhavan. This is contrary to facts. It did not figure in the discussions at all.”


Conclusion

Indian Constitution, Citizenship Act 1955 & Representation of People Act 1950 & 1951 must be reviewed and amended to ensure foreign born citizens, who we believe cannot appreciate the interests of our Nation and Culture and in certain cases doubt integrity, are barred from voting, contesting elections and occupying Constitutional Offices.

This suggestion is not based on some petty outlook, but simply because Indians, as people, are too far away from accepting any such arrangement with open-heartedness. There is nothing wrong in rejection of a Foreign-born persons involvement in Indian Politics, however, when we clap at Indians occupying significant political offices in other countries, we do create a case for such an arrangement within India.

Some people are bound to take this as my opposition to “good-work” undertaken by this person or that. I cannot help such thinking. But shooting empty bullets is not going to injure anyone, surely not fatally. It is better that every move we make is based on solid reason, logic and material evidence. Else, apart from making noise, we will not reach anywhere.

11 comments:

  1. Excelletly DOne! As usual it carried the essence that addresses the Public debate going on for quite sometime!

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  2. If it is the constitution of India it's shows way for another slavery to this country .Now Italian , tomorrow US will enter in high profile Political position & rule the country as per their convenience & so on so forth. The martyrs to free the country are fools . What was wrong if British ruled our country."Watan Par Jo Fida Hoga Bada Bewkoof Gadha Hoga Padegi Peeth Par Thokar Kahin Aundha Pda Hoga"
    satya

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    Replies
    1. India ( and many other countries) has been ruled by many persons, who was not truly citizen of this country. Kushan, many sultans of Delhi, Mughal Babar, British,but many ruled very well.
      earlier armed forces decided, who would be king but now our vote decide this.

      I have, in principle, no problem if some person not citizen govern us properly but have problem if our own citizen govern like many elected government since independence.

      But, practically, this issue must be settled with practical considerations.

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  3. Excellent writing. well studied, well arranged, well concluded..

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  4. We are doomed.
    How long will take us to be slaves again?

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  5. It was too technical for me to understand this. but If I understood the conclusion right, then you are saying there is nothing in our constitution that can stop Ms Gandhi or Rahul from holding the big offices of our country, and that includes PMO as well. So what stopped her in 2004 ? Why did she give the PMO to Dr MMS. I can't believe she would just let go of that powerful seat. And if at all Dr. Swamy's arguments were not right as per constitution why did not she fight back, she would get world's best lawyer to interpret our constitution. So I am still confused, what special Dr. Swamy did to stop her or weather he is the reason for Sonia not becoming PM at all. Grrrrr Confused moi .. !!

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  6. Lot of legal jargon but obviously you missed it somewhere in the mumbo-jumbo

    Read Surya Prakash in Pioneer:

    http://bharatkalyan97.blogspot.com/2012/05/ndas-perfidy-on-foreigner-issue-surya.html

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  7. Nice work on Indian citizen act. However, from the wikipedia I got the following info:-

    Relevant Indian legislation is the Citizenship Act 1955, which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005. The Citizenship (Amendment) Act 2003 received the assent of the president of India on 7 January 2004 and came into force on 3 December 2004. The Citizenship (Amendment) Ordinance 2005 was promulgated by the president of India and came into force on 28 June 2005.

    First introduced 1955
    Ammendment years 1986, 1992, 2003 and 2005.

    Note that the act of 2003 introduced by NDA came into force in Dec 2004. So according to your blog, the citizenship of SG could still be challenged in court as the law had not come into force on 17th may 2004. There is another catch. The ammendment of 2005 is actually brought via Ordinance. What was the need for the govt to bring an ordinance ?? Seems fishy. A detailed analysis of the amendment in 2005 is also required to present the complete picture on Indian Citizenship act.

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  8. you can wake up asleep but not those pretending to be asleep!

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  9. I believe actual wordings of act than spin by fans or foes even if that includes Surya Prakash who is human too!

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  10. With so many Anonymous commentators it is difficult to make the correct reference. But my response is for the person who are explained when the Citizenship Amendment Act 2003 came in force.

    Thank you, for this additional information. I had actually not noticed this part.

    That said, even the Citizenship Amendment Act 1992 didn't have any provision that could have been used to challenge Sonia Gandhi in May 2004.

    For this, you need to be very clear that the Reciprocity clause applied to Commonwealth Nations only. And was part of only Section 5(1)(e). Sonia Gandhi became Citizen of India in April 1983 under Section 5(1)(c), which in 1983 read as, "Women 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."

    The later amendments have been rather awkward. Time periods were reduced for certain citizenship categories, and Ordinance was used to bring these amendments in force. But that seems to have no bearing on the May 2004 "expected" appointment of Sonia Gandhi.

    We can discuss amendments of 2005 as well as the pending amendment to Citizenship Act, but as a separate subject,

    Again, thanks for highlighting when 2003 Amendment came into force. Its an important info while attempting to understand such complex topics. Will keep in mind henceforth.

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