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Date: 12/10/2020
Court: High Court of Patna (Division Bench)
Introduction:
To vote and be voted is a right exclusively available to Indian citizens. Article 84 mandates that an individual has to be an Indian citizen to qualify for membership to the Parliament. Consequently, a person who wishes to fill in a seat at the State Legislature mandatorily has to be an Indian citizen according to Article 173 of the Constitution.
Kiran Gupta, the appellant, was a Nepali citizen who surrendered her citizenship before Nepalese authorities on 24/02/2016. She got married to an Indian citizen in June 2003 and has been permanently residing in India since then. In 2018, the appellant stood as a candidate for Panchayat elections in Bihar from a seat reserved for women. She subsequently won the elections and undertook the Oath of Affirmation. An elector from the Gram Panchayat filed a plea before the State Election Commission, Bihar (SEC) claiming that she was disqualified from holding the post of Mukhiya as she was not an Indian citizen.
The Election Commissioner subsequently disqualified her from the post on the 30th of August, 2019, by his powers under Section 136(2) of the Bihar Panchayat Raj Act, 2006. A writ petition was thus filed before a single-judge bench of the Patna High Court who dismissed the matter against her favor in light of Articles 173 and 243F of the Constitution. The present matter is a Letters Patent Appeal before a Division Bench challenging the single judge's order dated 21/01/2020.
The Bihar Panchayat Raj Act, 2006:
According to Section 2(1)(w), A Panchayat is an institution for local self-government. A Mukhiya (Sarpanch) is the elected representative of a Gram Panchayat i.e., at the village level. [1]
Section 135 holds that any person whose name has been included in the voters' list for that Constituency and has not been disqualified from contesting elections in any other law in force shall be qualified to stand for elections. Section 136 enlists the various categories for disqualification of a person, before or after elections, with Section 136(a) disqualifying those who are not Indian citizens. In addition to that, if a question arises concerning the Mukhiya of a Gram Panchayat, the same shall be referred for a decision of the SEC according to Section 136(2).
Issues:
Petitioner’s contentions:
The appellant affirmed that she was a citizen of India and relied on her renouncement of citizenship from Nepal. The appellant also submitted that her name was entered in the voters' list for the 2008 Assembly elections in Bihar and that she had a bank account, an Aadhar card as well as a PAN card. Moreover, she held that the SEC did not have jurisdiction to disqualify her based on citizenship under Section 136(2) of the Panchayat Act.
Judgment:
1.Whether the SEC had authority:
Concerning the authority of the SEC, the appellant raised the decision of the Patna High Court in Dhanwanti Devi v. The State Election Commission (2012). The Division bench in Dhanwanti Devi held that the SEC should have directed the appellant to get her Citizenship from an appropriate authority instead of disqualifying her. However, the impugned order dated 21/01/2020 held that SEC could have authority over the matter as there was no factual dispute involved as she was unable to prove her Indian citizenship. The learned judges in this matter agreed with the views in the impugned order as they held the precedent would not have an application due to the difference in facts.
The learned judges also pointed out the established precedent in Rajani Kumari Versus State Election Commission & Ors. (2019) that positively upheld the SEC’s powers under Section 136(2). The SEC would only have to refer the issue of disqualification to a competent court or tribunal in case of disputed facts. Thus, the SEC’s authority to disqualify the appellant was undisputed and could not be challenged due to the undisputed nature of facts.
2. Citizenship in India and voluntary relinquishment of a foreign one:
Reference was made to the relevant provisions of citizenship under the Indian Constitution in addition to the Citizenship Act, 1955. Emphasis was placed on Articles 10 & 11 that deals with the continuance of citizenship under a law enforced by the Parliament in this regard (the law being the Citizenship Act, 1955). Article 143 of the Constitution expressly provides that a person can fill a seat in the legislature only if the person is an Indian Citizen. Article 243F states that a person may be stripped of his post in the Panchayat if he/she has been disqualified by any other law in force. A combined reading of both these sections was made and clubbed with the facts of the case to establish that the petitioner had no legal right to stand for elections as she was not a citizen of India
Section 3 of the Citizenship Act deals with citizenship acquired by birth whereas Section 4 applies for citizenship by descent. Under section 5, a person may acquire citizenship by registration provided that he/she is not an illegal migrant and has satisfied any of the categories under the section. The relevant subsections for this matter being, Sections 5(1)(a) & 5(1)(c).
Citizenship under 5(1)(a) is attained when the person is of an Indian origin and was “ordinarily resident” in India for 7 years before making the application. Section 5(1)(c) applies for individuals who are married to Indian citizens and have been ordinarily resident in India for 7 years before making the application. The phrase “ordinarily resident” has been defined under Explanation 1(i) of the said section as a person who has been residing in India for 12 months immediately before applying. Explanation 1(ii) added that the person had to be residing in India for not less than 6 years before the 12 months mandated under Explanation 1(i).
Moreover, a person is said to have attained citizenship by registration on the date one registers according to Section 5(5). The Court further observed that nationality and citizenship were not interchangeable as the former referred to the jural relationship in international law whereas the latter would apply to municipal law. [2]
It was viewed that though the petitioner’s case would fall under Section 5(1)(c), she had made no application before the Centre to obtain Indian citizenship. The Court thus held that her actions had been excluded from the purview of Citizenship under the Act of 1955. The Court also raised the analogy of an Indian Citizen marrying a foreign national whereby the latter would not obtain citizenship unless an application was made.
The fact that the appellant had voluntarily relinquished her Nepali Citizen was not held as the intent to obtain Indian citizenship by the court. Thus, the fact that the appellant had a continued stay in the country over a long time could not be held to grant her citizenship as such.
3. Extent of proof of citizenship conferred by Voter’s ID, Aadhar Card & PAN card:
With regard to the question of whether documents such as Aadhar and PAN card could be seen as valid proof, the court commenced by answering in the negative. In Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, it was held that the burden of proving citizenship would be on the person claiming it and the same has to satisfy both the Constitution and the Act of 1955. In the Apex Court decision in Bhanwaroo Khan v. Union of India, (2002) 4 SCC 346, long stay in the country and enlisting of a name in the voters' list was not enough proof to show citizenship. The reason for Voters ID not being conclusive evidence is backed by the fact that a voter has declared that he is a Citizen of India. [3] Moreover, an application for a Voter ID involves no procedure for checking citizenship and is formed on self-declaration.
The Court found the PAN Card to be a document that facilitates payment of taxes from an individual to the State and the same could not be classified as proof of citizenship. The court also observed that the eligibility to obtain an Aadhar card was residence in India for over 182 days and not any proof of citizenship. This has been substantiated by Section 9 of the Aadhar Act, 206 that expressly provides that the Aadhar card is not proof of citizenship. The appellant had also raised evidence of registration of property and the holding of a Bank account. The Court held that even these documents required no proof of citizenship per se and could be done by individuals regardless of proving citizenship.
Thus, the Court held that documents such as Voter’s ID, Aadhar Card, PAN Card, Bank account, transfer or registration of property, etc. would not suffice for proof of citizenship.
4. The Centre’s obligation to remedy statelessness:
The appellant had renounced her Nepali Citizenship in 2016 and had not made any application for obtaining Indian Citizenship, thus she was in a condition of statelessness. The remedy was found to be in the UNHRC 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. However, India is not a signatory to either of the conventions and thus has no obligation as such to cure statelessness. The learned judges then referred to the UDHR, ICCPR & CEDAW as they extracted relevant provisions on citizenship.
The close bilateral ties between India and Nepal were also recognized as a person from Nepal (or Bhutan) who can enter India without a passport. Thus, in light of India’s commitment to the International principles (UDHR, ICCPR) and the close ties between the nations, the Court observed that the petitioner’s long stay in India and the relinquishment of Nepali citizenship and continuous residence since 2003 conveyed an intent to obtain Indian citizenship. It held that it could not direct the executive to grant her citizenship but instead directed them to decide the matter expeditiously, upon an application by the appellant, given her present situation.
Thus, the impugned order was upheld by the Division Bench while also including the aforementioned directions.
Conclusion:
The Division Bench thus upheld the SEC’s authority to disqualify the appellant as she failed to substantiate her proof of citizenship and absence of any dispute in facts. Through a person’s actions, the intent to obtain citizenship can be observed to a certain extent. However, the mere act of relinquishment would not confer Indian citizenship. To obtain citizenship by registration, one has to satisfy at least one prerequisite set out in the Act of 1965 and subsequently make an application as prescribed before the Central Government.
Documents such as Aadhar card, PAN card, Voter’s ID, Bank account, etc. are those that can be obtained without proof of citizenship and thus cannot be held to prove citizenship as such. However, these documents play a role in showing intent to be a citizen when paired with a long period of stay, and in such a case, the Centre may confer citizenship upon application. The Court relied on the established principles of law while also emphasizing upon the condition of the appellant in its verdict as it made a positive attempt to remedy her statelessness.
[1] Field Notes: Voice of a Sarpanch in Bihar, Centre for Policy Research, (04 May 2020), https://www.cprindia.org/news/8860.
[2] State Trading Corporation of India Ltd. v. Commercial Tax Officer & Ors., AIR 1963 SC 1811.
[3] Vijoy Kumar Chaudhary v. The State Election Commissioner (2008).
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