Author: N H Hingorani
Publication: The Statesman
Date: November 6, 1999
URL: http://www.media-watch.org/articles/1199/63.html
The earlier controversy as to whether
Sonia Gandhi, a naturalised citizen of India, is eligible to become the
Prime Minister of India is now followed by the question whether she can,
under our Constitution and parliamentary statutes, even be the leader of
the Opposition in Parliament, and for that matter, a Member of Parliament.
While the Congress spokes-man, Pranab
Mukherjee, publicly stated that Sonia Gandhi had renounced her Italian
citizenship on 27 April 1983 and acquired Indian citizenship on 30 April
1983 by naturalisation, Sonia Gandhi went a step further by declaring on
6 Septem-ber 1999, in an interview telecast on Door-darshan, that she became
an Indian citizen the day she became Indira Gandhi's daughter-in-law and
that any other view is merely "technical".
It is true that Sonia Gandhi is
a citizen of India, though a naturalised one. The issue which arises, however,
is whether our Cons- titution recognises citizenship by naturalisation
and permits a naturalised citizen to hold a constitutional post - be it
the office of the Prime Minister, leader of Opposition in Parliament or
simply a Member of Parlia-ment.
CITIZENSHIP
Article 84 of the Constitution
mandates that a person shall not be qualified to be chosen to fill a seat
in Parliament unless he fulfils the conditions prescribed therein, one
of them being that he must be a citizen of India. Part II of the Constitution
containing Arti-cles 5 to 11 pertain to citizenship of India.
Article 5 declares that at the commencement
of the Consti-tution, every person who has his domicile in the territory
of India and who was born in India, or either of whose parents was born
in India or who has ordinarily been resident in India for not less than
five years immediately preceding such commencement shall be a citizen of
India.
Article 6 conferred the right of
citizenship to certain persons who had migrated to India from Pakistan
whereas Article 7 takes away the right of citizenship of certain migrants
to Pakistan.
Article 8 confers the right of citizenship
to certain persons of Indian origin residing out of India. Article 9 declares
that persons voluntarily acquiring citizenship of a foreign state cannot
be Indian citizens. Article 10 provides for continuance of the rights of
citizenship whereas Article 11 confers power on Parliament to regulate
the right of citizenship by law.
It will be noticed that the Constitution
does not expressly recognise acquisition of citizenship by naturalisation.
Rather, Entry 17 List I of the Seventh Schedule to the Constitution, on
which Parliament has exclusive powers to make laws, relates to "Citizenship,
Natura-lisation and Aliens" thereby distinguishing between "citizenship"
and "naturalisation". The Constitution (Sixteenth Amendment) Act, 1963
did not alter this concept of citizenship but merely added the prescribed
oath to be taken by a Member of Parliament.
The constitutional omission of "naturalisation"
as a means to acquiring citizenship of India assumes further significance
in the light of the constitutional history on the issue. It will be recalled
that prior to the enactment of the British Nationality Act, 1948 statutes
maintained the distinction between natural-born British subjects and British
subjects by naturalisation.
BRITISH ACT
The British Nationality Act, 1948
which was enacted after a general consensus was reached within the Commonwealth
countries, including India, and which repealed all previous United Kingdom
legislation on the subject, prescribed therein the method of giving effect
to the principle that each of the self-governing countries of the Commonwealth
should, by its own legislation, determine who are its citizens and such
citizens should be declared British subjects.
Accordingly, the 1948 Act abolished,
by its Sections 31 and 34(3), the distinction between "citizenship" and
"nationality" and thus, at the time of commencement of the Constitution,
all subjects of the British Commonwealth possessed a common British nationality
irrespective of whether they were naturalised citizens or natural-born
citizens.
The framers of our Constitu-tion
were alive to the provisions of the British Nationality Act, 1948 providing
for different categories of citizenship - namely, by birth, descent, registration
and naturalisation. Yet our Constitution, while expressly recognising acquisition
of citizenship by birth, descent and domicile does not provide for citizenship
by "naturalisation".
There is yet another aspect to the
matter. Under Article 102(d) of the Constitution, a person shall be disqualified
from being chosen or being a member of either House, if he is not a citizen
of India, or has voluntarily acquir-ed citizenship of a foreign state or
is under any acknowledgment of allegiance or alliance to a foreign state.
Under the Italian Criminal Code,
the status of a natural-born citizen in Italy is indelible and the birth
of Sonia Gandhi in Italy by itself is acknowledgment of her continued allegiance
to that country notwithstanding her stated renunciation of Italian citizenship.
Such acknowledgment would be a disqualification under our Constitution
for the membership of Sonia Gandhi to Parliament.
DISTINCTION
It therefore becomes evident that
the concept of citizenship embodied in our Constitution does not include
acquisition of citizenship by naturalisation, particularly when it comes
to membership of Parliament. While it is true that Section 6 of the Indian
Citizenship Act, 1955 recognises "naturalisation" as a mode of acquiring
citizenship, there is nothing in the said Act to indicate that such naturalised
citizen can hold public office under the Constitution.
In fact, Section 10 of the said
Act empowers the central government to take away the citizenship of certain
citizens specified therein, which include naturalised citizens but ex-cludes
citizens by birth, des-cent and so on. Hence, the said Act maintains a
distinction between a naturalised citizen and other citizens.
Even otherwise, a statute cannot
obviously enlarge the scope of the aforesaid constitutional concept of
citizenship or be used to circumvent the provisions of Articles 84 and
102 of the Constitution. Sonia Gandhi, a naturalised citizen, is therefore
disqualified from holding a constitutional post in India.
