IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16356 of 2007 NAGINA DEVI,MLA,68, BATHNAHA CONSTITUENCY, WIFE OF SRI YOGIRAJ PRASAD, RESIDENT OF VILLAGE- POSUA (PATANIA) POLICE STATION-RIGA, DISTRICT SITAMARHI . ….PETITIONER Versus 1.THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, 26 MANSINGH ROAD, JAISALMER HOUSE, NEW DELHI. 2. THE DIRECTOR, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, 26 MANSINGH ROAD, JAISALMER HOUSE, NEW DELHI. 3. THE STATE OF BIHAR 4. THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA 5. THE SECRETARY, HOME AFFAIRS, GOVERNMENT OF BIHAR, PATNA 6. THE UNDER SECRETARY, HOME SPECIAL DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 7. THE DIVISIONAL COMMISSIONER, MUZAFFARPUR 8. THE COLLECTOR, SITAMARHI 9. THE SUB DIVISIONAL OFFICER, SITAMARHI SADAR, DISTRICT SITAMARHI 10. THE BLOCK DEVELOPMENT OFFICER, RIGA, DISTRICT SITAMARHI 11. RAJ KISHORE SINGH KISHWAHA, SON OF SRI RAM BRIKSHA SINGH, RESIDENT OF VILLAGE-SURGAHIYA, P.O. HARIBELA, P.S. BATHNAHA, DISTRICT SITAMARHI. ………..RESPONDENTS with CWJC No.6065 of 2007 RAJ KISHORE SINGH KUSHWAHA SON OF SRI RAMBRIKSHA SINGH, RESIDENT OF VILLAGE- SURGAHIYA, P.O. HARIBELA, P.S. BATHANAHA,DISTRICT SITAMARHI (BIHAR) …….PETITIONER Versus 1.THE UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI 2. THE ELECTION COMMISSION OF INDIA, THROUGH ITS SECRETARY NEW DELHI 3. THE STATE OF BIHAR THROUGH ITS SECRETARY, DEPARTMENT OF HOME AFFAIRS, AT PATNA (BIHAR) 4. THE BIHAR LEGISLATIVE ASSEMBLY THROUGH ITS SECRETARY IN PATNA(BIHAR) 5. THE COLLECTOR/DISTRICT MAGISTRATE, SITAMARHI, AT & P.O.& P.S. DUMRA, DISTRICT SITAMARHI(BIHAR) 6. SMT. NAGINA DEVI WIFE OF YOGIRAJ PRASAD, RESIDENT OF VILLAGE- POSUA PATANIA, P.S. RIGA, DISTRICT SITAMARHI (BIHAR) MEMBER OF BIHAR LEGISLATIVE ASSEMBLY ALSO THROUGH THE SECRETARY, BIHAR LEGISLATIVE ASSEMBLY AT PATNA(BIHAR) ……….RESPONDENTS ----------- 2 For the Petitioner : Mr. Jagannath Singh,Advocate (in CWJC 16356/07) For the Petitioner : Mr. Y.V.Giri, Sr. Advocate (in CWJC 6065/07) Mr.Manoj Kumar Sinha, Advocate For the U.O.I. : M/s Ashok Kumar Singh, Umesh Kumar Dubey, Advocate For the State : Mr. A.A.G.I & G.A.3 O r d e r 12 7.1.2010 Both C.W.J.C. No. 16356 of 2007 and C.W.J.C.No.6065 of 2007 are taken up together as the matters are interlinked. In fact, the fate of C.W.J.C.No.6065 of 2007 would be dependent upon the outcome in C.W.J.C.No.16356 of 2007. 2. In C.W.J.C.no.16356 of 2007, the petitioner Nagina Devi prays for quashing the order dated 21.3.2007, contained in letter no.26030/07/IC-1 issued by the Director, Ministry of Home Affairs/Grih Mantralaya, Government of India communicated to Under Secretary, Home (Special) Department, Government of Bihar, whereby the petitioner has been declared a non-citizen. 3. In C.W.J.C.No.6065 of 2007, the petitioner Raj Kishore Singh Kushwaha, who is an intervener respondent no.11 in C.W.J.C.No.16356 of 2007, prays for issuance of a writ in the nature of co-warranto or direction or order to remove respondent no.6 Nagina Devi (Petitioner of CWJC No.16356 of 2007) from the membership of Bihar Legislative Assembly by declaring her election from Constituency No.68 (Bathnaha) in the district of Sitamarhi as void. 4. The issue is whether Nagina Devi who is petitioner in 3 C.W.J.C.No.16356 of 2007 and respondent no.6 in C.W.J.C.No.6065 of 2007 is born an Indian citizen or not? What would be the relevant provision which would determine the status of citizenship where there is a doubt that the person concerned is a citizen of India or not? 5. According to the petitioner, the issue involved in this case is not that the petitioner being an Indian citizen has disqualified herself by acquiring nationality of another country or that being citizen of another country has subsequently acquired Indian citizenship by force of law. The petitioner contends that right from the beginning she is an Indian citizen. 6. Before, I deal with the issues, the facts of the case and the contentions of parties are being noticed in short. (a) The case of Nagina Devi, the petitioner of C.W.J.C.No.16356 of 2007 is that she was born in the year 1958 at village Bhagwanpur, P.S. Bathnaha, District Sitamarhi in the State of Bihar. Her mother Rajwati Devi was an Indian citizen being a daughter of late Mahadeo Sah, resident of Bhagawanpur, P.S. Bathnaha in the district of Sitamhari. Her father late Mauze Lal Sah was a Nepalese citizen. She married one Yogi Raj Prasad, resident of village Posua (Patnia), P.S. Righa, District Sitamarhi in the year 1972 with Hindu rites. (b) Her name figures in electoral roll of Bathnaha Assembly Constituency since 1975. She was earlier nominated as Member of State 20th Programme from Riga Block in the year 1994 and 4 in the year 2001 she was elected member of District Board, Sitamarhi from State Election Area No.6. She was elected as MLA from Bathnaha Assembly constituency in 13th Bihar Assembly Election 2004, and also 14th Bihar Assembly Election 2005. She is also having tractor cum trailer and arms licence in her favour. (c) She alleges that with ulterior motive an application was filed before the Collector, Sitamarhi, with respect to her citizenship by one Anita Choudhary, Advocate. The District Magistrate, Sitamarhi vide his letter no.534 dated 22.9.2006 requested the Special Secretary (Home), Government of Bihar, Patna to provide guidelines for taking necessary action on petition of Anita Choudhary. The Under Secretary, Home(Special), Government of Bihar by his letter no.808 dated 1.11.2006, requested the Under Secretary, Home Affairs, Government of India to provide appropriate guidelines in the matter. The District Magistrate, Sitamarhi, pursuant to the letter of the Under Secretary, Government of India, by his letter no.929 dated 6.12.2006, asked the petitioner to produce evidence of being an Indian citizen. A copy of the aforesaid letter was also sent to the B.D.O. Riga for necessary information and also requiring of him to state under what circumstances the name of the petitioner Nagina Devi was added/included in the electoral roll. According to the petitioner, no such notice was issued to her and the District Magistrate, Sitamarhi without giving her an opportunity 5 of hearing or show cause, made an enquiry behind her back and submitted one sided report. (d) The impugned order dated 21.3.2007 contained in Annexure- 1 was issued by the Director, Ministry of Home Affairs, Government of India on the basis of aforesaid report of Collector‟s Sitamarhi. The petitioner asserts that she did not receive any show cause bearing memo no. 929 dated 6.12.2006 from Collector, Sitamarhi nor she made any reply dated 10.1.2007 contained in Annexure-R-8/C of respondentno.8 at running page 75 of the brief. She states that she does not know English and someone taking advantage of a blank signature on her pad has forged a reply with ulterior motive. 7. A counter affidavit has been filed on behalf of the respondent no.8, the Collector, Sitamarhi wherein it has been stated that one Anita Choudhary, Advocate filed an application raising the issue of citizenship of Nagina Devi. After seeking due guide-lines, he called for a report from the B.D.O. Riga as well as issued notice to the petitioner vide his letter no.929, dated 6.12.2006 to produce evidence of being an Indian citizen. The petitioner filed her reply vide letter no.11 dated 10.1.2007 contained in Annexure-R-8/C stating therein that she was born in Nepal, her father being one Mangey Sah, resident of Village- Madanpur, District Sarlahi in the country of Nepal. On 23.2.1972 she got married with one Yogi Raj Prasad of Village Posua in the district of Sitamarhi. The Collector in his report 6 observed that one Manoj Kumar Singh son of the petitioner admitted that previously her mother‟s name was Manorama Devi and subsequently she changed her name to Nagina Devi. In sub- paragraph (vii) of paragraph 4 of the counter affidavit, the Collector stated that the name of the petitioner was recorded as Manorama Devi wife of Yogi Raj Prasad in the electoral roll of 1975 to 1980, 1983, 1988 and 1992. But in the electoral roll of 1995, her name was recorded as Nagina Devi wife of Yogi Raj Prasad. On the basis of reply filed by the petitioner and the report of the B.D.O., Riga, respondent no.8, the Collector, Sitamarhi submitted his report vide letter no.102 dated 31.1.2007 to the Under Secretary, Home Affairs (Special), Government of Bihar. The Collector opined that the petitioner did not fulfill any of the conditions laid down under sections 3, 4 or 5 of the Citizenship Act, 1955 for acquiring Indian Citizenship. He stated that the petitioner had put forth her claim of Indian Citizenship only on the basis of her name entered in the electoral roll. He further states that on the basis of aforesaid report, the Director, Ministry of Home Affairs declared the petitioner a non-Indian citizen. 8. The petitioner in her reply to the counter affidavit of respondent no.8 stated that she made a representation against the impugned order to the Ministry of Home Affairs on 27.7.2007 which again asked the Home Secretary, Government of Bihar to initiate a high level enquiry. Consequent to directions of 7 Government of Bihar contained in letter no.655 dated 7.8.207, the Collector, Sitamarhi vide his memo no.1068 dated 27.8.2007, directed the petitioner Nagina Devi to present herself on 30.8.2007 with all relevant papers and for personal hearing as well. The petitioner filed a detailed reply and it is not disputed that her counsel was heard also. The Collector thereafter again submitted a report to the Secretary, Home Affairs, Government of Bihar by his letter dated 12.10.2007 (Annexure-R-8/N) stating that the materials produced by the petitioner did not inspire confidence. The petitioner in paragraph 27 of reply to the counter affidavit stated that the Union Home Department vide its letter dated 5.6.2008, contained in Annexure-7 at page 126 of the brief, took a decision not to change its earlier stand taken by the Director, Home Affairs, Government of Indian which again has not been communicated to the petitioner rather the same was communicated to the Secretary, Election Commission of India, New Delhi. The communication dated 5.6.2008 of Director (I&C), Ministry of Home Affairs to the Secretary, Election Commission of India has been annexed as Annexure-7 to the reply to the counter affidavit. 9. In her supplementary affidavit the petitioner stated that one Raj Kishore Kushwaha who is petitioner in C.W.J.C.No.6065 of 2007, and her political bete noire , filed a petition before the Governor of Bihar on the basis of impugned letter dated 21.3.2007 issued from the Ministry of Home Affairs, 8 Government of India for disqualifying her as Member of Legislative Assembly. The Governor‟s office initiated a reference case no.11G of 2007 and by letter dated 23.7.2007 sought an opinion from Election Commissioner of India under Article 192(2) of the Constitution with respect to the alleged disqualification of the petitioner as M.L.A. The Election Commissioner by its notice dated 24.8.2007 asked the petitioner to file her reply. The matter was heard in detail by the Election Commissioner of India which observed in paras 16, 18 and 19 its opinion dated 6.2.2008 as follows: “16.It is indeed true that under Article 192(1) of the Constitution of India, the jurisdiction of the Governor to decide question of disqualification of a sitting Member of Legislative Assembly arises only in cases of disqualifications incurred after election as a member of the House. The jurisdiction of the Election Commission to inquire into such question of the alleged disqualification, on being referred to it by the Governor under Article 192(2) of the Constitution, also arises only in case of post- election disqualification”. 18. “Having regard to the above constitutional and legal as well as factual position the Commission is of the opinion that the Ministry of Home Affairs, Government of India, the authority which has to decide the citizenship issue under the Act of 1955, has not yet finally decided the revision application filed by Smt. Nagina Devi on 30.7.2007 under the Act of 1995. Consequently, the provisions of Article 192(1) cannot be invoked, at this stage unless the Ministry of Home Affairs decides the 9 issue finally”. “19. In view of the above, the reference received from the Government of Bihar, in the present case, is accordingly, returned with the opinion of the Election Commission of India, that the question raised by the petitioner Sri Rajkishor Singh Kushwaha in his petition dated 20.6.2007, against Smt. Nagina Devi is premature and is, therefore, not maintainable before the Government of Bihar in terms of Article 192(1) of the Constitution of India”. 10. On the basis of the aforesaid opinion the Governor of Bihar rejected the prayer of disqualification. 11. The Union of India too filed its counter affidavit wherein in paragraph 5 it has been stated that the State Government has sought clarification from the Ministry of Home Affairs regarding the citizenship status of Smt. Nagina Devi, M.L.A. and forwarded a copy of report of District Magistrate, Sitamarhi and Special Branch of the State Government along with Explanation of Smt. Nagina Devi and other documents for needful. On the basis of the aforesaid report, a communication dated 21.3.2007 was issued stating that Smt. Nagina Devi is not a citizen of India and she was born in Nepal which fact has also been stated by her in her explanation dated 10.1.2007 to the District Magistrate, Sitamarhi. On representation of the petitioner, a fresh report was sought on 2.8.2007 from the State Government which again sent a detailed report after noticing the petitioner Nagina Devi. In 10 view of the reports, the Ministry on 5.6.2008 communicated that there is no change in the stand taken and conveyed by this Ministry vide letter dated 21.3.2007. 12. It is relevant to state here that Raj Kishore Singh Kushwaha, the petitioner in C.W.J.C.No.6065 of 2007 filed an intervention application in C.W.J.C.No.16356 of 2007 which was allowed by this court by order dated 11.12.2009. In the intervention application, his stand is more or less on the same line as that of respondent no.8, the Collector, Sitamarhi. The intervener respondent asserted that Nagina Devi was not born in the State of Bihar though she was married with an Indian citizen Yogi Raj Prasad. He further stated that the mother of the petitioner was not an Indian citizen and she was born a Nepalese citizen. He claimed that the petitioner Nagina Devi has not produced any chit of document except belated affidavits to show that she was born in the State of Bihar. 13. The intervener respondent Raj Kishore Singh Kushwaha has also filed a separate writ application as noticed above. His main prayer is that as Nagina Devi, who is respondent no.6, has been declared to be non-Indian citizen, her election as M.L.A. becomes void and a writ of co-warranto be issued removing her from the membership of Bihar Legislative Assembly. In paragraph 5 it has been stated that the respondent no.6 Nagina Devi is daughter of Nepalese citizen Mauze Sah and Dajaba Devi of village Madanpur, District Sarlahi in the country of 11 Nepal. He submits that respondent Nagina Devi would not be an Indian citizen in view of the Citizenship provisions contained in the Constitution of India and Citizenship Act, 1955. By referring to 2009(4) P.L.J.R.282 DB (Vijay Kumar Chouhdhary Vs State of Bihar) he contends that mere entry of her name in electoral roll would not make her an Indian citizen. He further submits that burden of proof lies upon person concerned who asserts to be a citizen of a particular country. In support of his submissions, learned counsel relies upon decision in case of Sarbananda Sonowal Vs Union of India, reported in (2005) 5 SCC 665. 14. He states that according to section 5(1)© of the Citizenship Act, 1955 a non-citizen can become a Citizen of India on the basis of marriage with a citizen of India provided an application for citizenship by registration is made in accordance with the provisions of the Citizenship Act and rules framed thereunder. The petitioner having done not so could in no way acquire Indian Citizenship. 15. He submits that the High Courts in view of the authoritative pronouncement of the Apex Court in the case of K.Venkatachalam Vs A. Swamickam, reported in 1999 SC 1723, has sufficient jurisdiction to declare the election of respondent no.6 as void on the ground of being a non-citizen, and bar of Article 329 (b) of the Constitution would not come into play. He states that respondent no.6 Nagina Devi in C.W.J.C.No.6065 of 12 2007 lacks the basic qualification of citizenship under Clause (a) of Article 173 of the Constitution read with section 5 of Citizenship Act for contesting election and for getting enrolled on electoral roll. 16. The petitioner Nagina Devi has assailed the impugned order dated 21.3.2007 issued by the Director (I&C), Ministry of Home Affairs, Government of India (Annexure-1) on following grounds. She states that the impugned order has been passed without giving her hearing, in violation of the principle of natural justice. Secondly, neither the Director (I&C), Ministry of Home Affairs, Government of India nor the Central Government has the jurisdiction to decide the issue of nationality and citizenship, as the same could be decided only by Civil Court and that too after following the rules of Evidence. 17. She submits that she would be an Indian citizen both in view of Article 5 of the Constitution of India as well as section 3 of the Citizenship Act, 1955. As per section 9(2) of the Citizenship Act, the citizenship of the petitioner could be terminated only by prescribed authority under the Act and that too in accordance with Rules of Evidence. The Director, I&C, Ministry of Home Affairs can in no circumstances represent Ministry of Home Affairs, Government of India as he would not be the Secretary as defined under section 2(e) of the Citizenship Rules, 1956. Section 2(e) states that Secretary would mean Secretary, Special Secretary and Additional Secretary or Joint 13 Secretary to the Government of India. 18. Now I would take up one by one the point raised by the petitioner. The contention of the petitioner that she would be an Indian citizen in view of Article 5 of the Constitution is misconceived and fit to be rejected in view of express provision of the Article which reads as follows: “5. Citizenship at the commencement of the Constitution- At the commencement of this Constitution every person who has his domicile in the territory of India and- (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India”. 19. The petitioner is claiming citizenship on the basis of Article 5(b) of the Constitution which states that whoever has domicile in the territory of India at the commencement of Constitution and either whose parents are born in the territory of India shall be a citizen of India. Article 5 speaks of two requirements; firstly every such person claiming to be a citizen of India must have his domicile in India at commencement of Constitution; secondly he or she should also fulfill at least one of the three requirements mentioned in (a)(b)(c) of Article 5. Even assuming the mother of petitioner was born in India, still it 14 would satisfy only condition (b) of Article 5, without fulfilling the basic and its foremost requirement that petitioner must be having her domicile in India at the time of commencement of Constitution. Admittedly, the petitioner Nagina Devi as per her own case was born much after commencement of Constitution in 1958, as such the question of having her domicile in India at the time of commencement of Constitution does not arise at all. A person would be said to have a domicile, only if he is born. A domicile of a person cannot precede his birth but would form only subsequent to his coming in the world. 20. The petitioner next claimed that she would be a citizen of India by birth in view of section 3(a)(b) of the Citizenship Act as she was born before 1986 and her mother Rajwati Devi was an Indian citizen. Articles 5 to 9 of the Constitution determine who would be an Indian citizen at the commencement of the Constitution. Article 10 provides for continuance of such person as citizen subject to provisions of any law that may be enacted by the Parliament.. Article 11 vests power in Parliament to make any provision with respect to acquisition and termination as Constitution does not provide for the same after its commencement. The Citizenship Act, 1955 has been enacted under Entry 17 of List 1 read with Article 11 of the Constitution to provide for such matter. 15 21(a). Sections 3 to 7 provides for acquisition of Citizenship. Section 3 provides for citizenship by birth; section 4 by descent; section 5 by registration; section 6 by neutralization and section 7 by incorporation of territory. Sections 8 to 10 provides for termination of citizenship and sections 11 to 18 are supplemental. Section 13 relates to issuance of certificate of citizenship in case of doubt. Section 15 provides remedy of revision to a person aggrieved by an order made under an Act by the prescribed authority or any officer or an authority under the Central Government. 21(b) In the instant case we are concerned with acquisition of citizen by birth as provided in section 3 as the petitioner Nagina Devi has also based her claim on aforesaid provision of Citizenship Act. 22. According to the petitioner only Civil Court would be competent to decide the issue of citizenship where a doubt has been created whether the petitioner is a citizen of India or not and that too after resorting to rule of evidence under the Evidence Act. However, the respondents assert that it would be the Central Government which would be the competent authority to decide such issue. In support of her contention, the petitioner has relied upon the decisions rendered in the case of Khalil Ahmad vs State of U.P., reported in 1962 Allahabad 383 and in the case of Akbar Khan Alam Khan & Ors Vs Union of India 16 and others reported in 1962 SC 70; State of U.P. vs Ramatullah, reported in 1971 SC 1382 and Lal Babu Hussain Vs Electoral Registration Officer, reported in 1995 SC 1189. 23. In case of Khalil Ahmad (supra) the Allahabad High Court was considering the case of a person who had acquired citizenship of another country and the mode by which the same could be resolved. In these circumstances, the Division Bench of Allahabad High Court held as follows: “If a question arises where the person concerned has acquired citizenship of another country that question has got to be resolved with the assistance of rules of evidence contained in Clause 3 of Schedule III of Citizenship Rules”. The issue in the aforesaid case is admittedly not the issue in the instant case, as such the aforesaid judgment would have no bearing in the instant case. 24. The petitioner next relied upon a case of State of U.P. vs Ramatullah, reported in 1971 SC 1382. The aforesaid case has no relevance in the facts of the present case, as it was considering prosecution under section14 of the Foreigners Act on a charge of over stay in India when there was no determination by the Central Government under section 9 that the respondent Ramatullah had acquired Pakistani nationality and had thereby become foreigner. 25. In the case of Lal Babu Hussain (supra), the Supreme 17 Court observed that determination of citizenship has to be done by the authority in light of the constitutional provisions and the provisions of 1955 Act. In the aforesaid case the Supreme Court was considering the issue regarding an individual‟s eligibility for inclusion of his or her name in the electoral rolls of a given constituency. 26. The next important case in line is a Constitution Bench decision in the case of Akbar Khan Alam Khan, reported in 1962 SC 70 wherein the Apex Court was considering the issue