Possession of Aadhar card, voter id and pan card not proof of Indian citizenship – Patna HC

IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1320 Civil Writ Jurisdiction Case No.191019 Kiran Gupta wife of Ashok Prasad Gupta Resident of Ward No. 10 North Panchayat Manik Chowk Post Office and Police Station Manik Chowk Block Runnisaidpur Distt. Sitamarhi ... Petitioner Appellant s The State Election Commission through the Secretary Veer Chand Patel Marg Sone Bhawan Patna Bihar The State Election Commissioner State Election Commission Veer Chand Patel Marg Sone Bhawan Patna Bihar The Joint Election Commissioner State Election Commission Veer Chand Patel Marg Sone Bhawan Patna Bihar The Deputy Secretary State Election Commission Veer Chand Patel Marg Sone Bhawan Patna Bihar The District Magistrate Sitamarhi Police Station and District Sitamarhi The Sub Divisional Officer Sadar Sitamarhi District Sitamarhi The Block Development Officer Runnisaidpur District Sitamarhi Ranjit Kumar Rai @ Ranjit Rai Son of Musafir Rai Resident of Village and Post Office Manik Chowk Police Station Runnisaidpur District For the appellant Mr. Rajesh Singh Advocate ... Respondents Respondent s Mr. Ranvijay Narain Singh Advocate Mr. Jitendra Singh Advocate Mr. Ranjeet Choubey Advocate For the State Election Mr. Amit Shrivastava Advocate For the State : Mr. Lalit Kishore A.G Mr. Girish Pandey Advocate Mr. Pawan Kumar AC to AG WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 CORAM: HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE S. KUMAR Per: HONOURABLE THE CHIEF JUSTICE and Date:12 10 2020 The primary issue for consideration before this Court is whether the appellant is a citizen of India or not. 2. Elaborately the following issues arise for considerations in this appeal: i) Was the State Election Commission empowered to set aside the appellant’s election under Section 136(1) of the Bihar Panchayat Raj Act 2006 on the ground of her not being an Indian citizen ii) Whether voluntarily relinquishing Citizenship of Nepal confers any right of Indian Citizenship upon the appellant iii) Can the appellant s voter ID Card PAN Card Aadhaar Card acquiring education or immovable property in India having a Bank Account function as proof of Indian Citizenship iv) Whether the appellant was disqualified from being elected to or function as Mukhiya of the Gram Panchayat in Bihar Can the appellant’s status of Statelessness be remedied as per Indian Law WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 3. The present appeal arises from an order and judgment of the learned Single Judge dated January 21 2020 by which the appellant s writ petition assailing the order of the State Election Commission dated August 30 2019 stands dismissed. The appellant s election is set aside on the ground of disqualification contained under sub section 1(a) of Section 136 of the Bihar Panchayat Raj Act 2006. 4. The appellant Kiran Gupta was born and brought up in Nepal. On 18th June 2003 she solemnized her marriage with Ashok Prasad Gupta and after that started permanently residing with him in India as his wife. It is not in dispute that after her marriage she an account with a bank in India a Pan Card issued by the Income Tax Department andan Aadhaar Card names of her children born out of the wedlock are registered in India under the Registration of Births and Deaths Act 1969 and the respective Rules framed thereunder pursued her higher education in India purchased an immovable property in India vide sale deed dated 12th December 2017. The sale stands recorded with an entry of mutation in her name for which also she paid fee rent to the Government of Bihar andchallenged her election on the ground of disqualification which she entailed under sub section 1(a) of Section 136 of the Bihar Panchayat Raj Act 2006 is well settled. The State Election Commission was empowered to set aside the appellant’s election under Section 136of the Panchayat Act. The decision rendered by this Court in Dhanwanti Devi v. The State Election Commission 2012PLJR 296 relied upon by the appellant does not apply in the given facts. The appellant herself acknowledged that she was born and raised in Nepal before her marriage in 2003 and was not an Indian citizen by birth or descent under Sections 3 and 4 of the Citizenship Act 1955. Based on the facts admitted by the appellant herself the State Election Commission was empowered to set aside her election 10. We need not labour any further for even otherwise the issue is no longer res Integra after the decision of the Full Bench of this Court in Rajani Kumari Versus State Election Commission through its Secretary &Ors. 4 PLJR 673 wherein it held as “We are in agreement that the State Election Commission has got power under sub section(2) of Section 18 of the Bihar Municipal Act 2007 and sub section(2) of Section 136 of the Bihar Panchayat Raj Act 2006 to consider an issue of pre or post election disqualification of a candidate subject to a caution which we have pointed out in our judgments in respect of a case which is in the nature of a purely election dispute and WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 then a matter which cannot be decided without adducement of evidence by a competent court and authority in accordance with Law. The State Election Commission shall entertain and consider the disqualification issues on the basis of the unimpeachable materials placed before him. Whether a complaint brought before the Commission either suo moto or by any other person the Commission shall at the first instance enquire whether it is a purely election dispute and only when it is found that the dispute brought before it is not a purely election dispute the Commission shall proceed to consider the same on the basis of unimpeachable materials. Whenever a disputed question of facts and a contentious issue is brought before the Commission as a ground and basis to render a candidate disqualified the Commission would be required to relegate the parties to a competent court tribunal or a fact finding body competent to decide such contentious issues after taking evidences and till such time the Commission shall not take a decision on such complaint either suo moto or otherwise.” 11. We now deal with Issues No.(ii) &who was born in the territory of India or b) either of whose parents was born in the territory of 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.” 14. Articles 6 and 7 deal with the rights of Citizenship of individual persons who migrated to India from Pakistan with which we are not concerned. We are also not concerned with Article 8 for it is not the appellant s case that though either of her parents or grandparents were born in India but were ordinarily residing in any country outside India. Article 9 is also not relevant since the appellant has voluntarily not acquired Citizenship of any foreign State. For the adjudication of issue related Articles 10 and 11 are reproduced as under: “10. Continuance of the rights of Citizenship.— Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall subject to the provisions of any law that may be made by Parliament continue to be such citizen 11. Parliament to regulate the right of Citizenship by law.—Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 provision with respect to the acquisition and termination of Citizenship and all other matters relating to Citizenship.” 15. A conjoint reading of these Articles lead to a conclusion of Article 10 providing right for the continuance of Citizenship but subject to the provisions of any law which the Parliament may make 16. Noticeably under Article 11 the Indian Parliament has enacted the Citizenship Act of 1955 providing for the acquisition of Citizenship after the commencement of the Constitution of India 17. Chapter III of Part VI of the Constitution of India deals with the Constitution of Legislature in States. Under Article 173 only a citizen of India is qualified to be chosen to fill up a seat in the Legislature of the State 18. Part IX of the Constitution of India deals with the Panchayats including its composition. Article 243F contained therein reads as under: “243 F. Disqualifications for membership. —(1 A person shall be disqualified for being chosen as and for being a member of a Panchayat— a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned Provided that no persons shall be disqualified on the ground that he is less than twenty five years of age if he has attained the age of twenty one years b) if he is so disqualified by or under any law made by the Legislature of the State 2) If any question arises as to whether a member of a Panchayat has become subject to any of the WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 disqualifications mentioned in clause the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may by Law descent Section 4) naturalization persons covered by the Assam Accordincorporation of territorywe are required to discuss only Section 5 dealing with the WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 acquisition of Citizenship by registration. The said Section reads as under: “5. Citizenship by registration.—(1) 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 register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or any other provision of this Act if he belongs to any of the following categories namely:— a) a person of Indian origin who is ordinarily resident in India for seven years before making an application for registration b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India c ) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration d) minor children of persons who are citizens of e) a person of full age and capacity whose parents are registered as citizens of India under clauseof this sub section for sub sectionof Section 6 f) a person of full age and capacity who or either of his parents was earlier citizen of independent India and is ordinarily resident in India for twelve months immediately before making an application for g) a person of full age and capacity who has been registered as afor five years and whobefore making an application for Explanation 1.—For the purposes of clauses an applicant shall be deemed to be ordinarily resident in India if— he has resided in India throughout the period of twelve months immediately before making an application for registration and WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 ii) he has resided in India during the eight years immediately preceding the said period of twelve months for a period of not less than six years Explanation 2.—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 or in such other territory which became part of India after the 15th day of August 1947 1 A) The Central Government if it is satisfied that special circumstances exist may after recording the circumstances in writing relax the period of twelve months specified in clausesandand clauseof Explanation 1 of sub sectionup to a maximum of thirty days which may be in different breaks 2) No person being of full age shall be registered as a citizen of India under sub sectionuntil he has taken the oath of allegiance in the form specified in the 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 The Central Government may if satisfied that there are special circumstances justifying such registration cause any minor to be registered as a citizen 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 clauseof 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 6) If the Central Government is satisfied that circumstances exist which render it necessary to grant exemption from the residential requirement under clause c) of sub sectionto any person or a class of persons it may for reasons to be recorded in writing grant such WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 25. The object of the Citizenship Act is to provide for the acquisition and determination of Indian Citizenship. Contextually we refer that in State Trading Corporation of India Ltd. v. Commercial Tax Officer &Ors. AIR 1963 SC 1811 the Hon ble Apex Court clarified that the Indian Constitution and the Citizenship Act exhaustively deal with the issue of Citizenship confined only to a natural person. Further nationality and Citizenship are not interchangeable terms and expression person under the Act have to be natural and not legal entities. Extracting the exact observation would be more apt. 18. … But the question still remains whether nationality" and "citizenship" are interchangeable terms Nationality" has reference to the jural relationship which may arise for consideration under international law. On the other hand "citizenship" has reference to the jural relationship under municipal law. In other words nationality determines the civil rights of a person natural or artificial particularly with reference to international law whereas Citizenship is intimately connected with civic rights under municipal law. Hence all citizens are nationals of a particular State but all nationals may not be citizens of the State. In other words citizens are those persons who have full political rights as distinguished from nationals who may not enjoy full political rights and are still domiciled in that country….” 23. … There is also no doubt in our mind that Part II of the Constitution when it deals with Citizenship refers to natural persons only. This is further made absolutely clear by the Citizenship Act which deals with Citizenship after the Constitution came into force and confines it only to natural persons. We cannot accept the argument that there can be citizens of this country who are neither to be found within the four corners of the Citizenship Act. We are of opinion that these two WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 provisions must be exhaustive of the citizens of this country Part II dealing with citizens on the date the Constitution came into force and the Citizenship Act dealing with citizens thereafter. We must therefore hold that these two provisions are completely exhaustive of the citizens of this country and these citizens can only be 26. The Constitution Bench of the Hon’ble Apex Court in Izhar Ahmad Khan v. Union of India AIR 1962 SC 1052 while dealing with the validity of Section 9 which deals with termination of Citizenship held as under: “38. The next point to consider is about the validity of Section 9(2) itself. It is argued that this rule is ultra vires because it affects the status of Citizenship conferred on the petitioners and recognized by the relevant articles of the Constitution and it is urged that by depriving the petitioners of the status of Citizenship their fundamental rights under Article 19 generally and particularly the right guaranteed by Article 19(1)(e) are affected. It is not easy to appreciate this argument. As we have already observed the scheme of the relevant articles of Part II which deals with Citizenship clearly suggests that the status of Citizenship can be adversely affected by a statute made by the Parliament in exercise of its legislative powers. It may prima facie sound somewhat surprising but it is nevertheless true that though the citizens of India are guaranteed the fundamental rights specified in Article 19 of the Constitution the status of Citizenship on which the existence or continuance of the said rights rests is itself not one of the fundamental rights guaranteed to anyone. If a law is properly passed by the Parliament affecting the status of Citizenship of any citizens in the country it can be no challenge to the validity of the said Law that it affects the fundamental rights of those whose Citizenship is thereby terminated Article 19 proceeds on the assumption that the person who claims the rights guaranteed by it is a citizen of India. If the basic status of Citizenship is validly WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 terminated by a Parliamentary statute the person whose Citizenship is terminated has no right to claim the fundamental rights under Article 19. Therefore in our opinion the challenge to Section 9(2) on the ground that it enables the rule making authority to make a rule to deprive the citizenship rights of the petitioners cannot be 27. Section 5 of the Citizenship Act deals with such persons who seek Citizenship by registration. In National Human Rights Commission Versus State of Arunachal Pradesh and another 1996) 1 SCC 742 the Apex Court clarified that a person can be registered as a Citizen of India only if he satisfies the requirement contained in Section 5 28. It is an admitted fact that the petitioner was born and brought up in Nepal. She married her husband an Indian citizen in 2003 and has been resident in Indian since. Her acquisition of Indian Citizenship is governed by the provisions of the Citizenship Act 1955. The Citizenship Act lays out the different avenues by which a person can become an Indian citizen. Section 5 lays out the provisions for Citizenship by registration. Under Section 5(1)a person who is married to a citizen of India and ordinarily resident in India for at least seven years may make an application for Citizenship. A conjoint reading of the Citizenship Act with Entry 17 of List I of the Seventh Schedule of the Constitution tells us that it is WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 only the Central Government which is empowered to confer Citizenship upon Foreign nationals. Therefore the adjudicating body for citizenship acquisition is the Central Government. The petitioner has admitted that she has not applied for Citizenship under the 29. In our considered view it is not that anyone or everyone person) can as a matter of right claim Citizenship of India. Power and discretion of conferring citizenship vests with the Central Government which of course has to be exercised as per settled principles of Law. Further the Section itself categorizes the persons entitled to exercise their right to file an application requesting for registration as a citizen of India. Unless decided the mere filing of an application does not confer any right of Citizenship. The appellant s case would fall under clauseof sub sectionof Section 5. She is married to a citizen of India and is ordinarily residing in India for the last seven years. But then significantly and undisputedly she never sought Citizenship by way of registration more so after voluntarily relinquishing her Citizenship of Nepal in February 2016. An oath of allegiance is necessarily required to be taken by the appellant. Hence by her actions and conduct she precluded herself from being considered as a citizen under the Citizenship Act WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 30. Indian citizens can marry a foreign national under the Special Marriage Act 1954. The foreign national does not become an Indian citizen on marriage with a citizen under the Act. After the marriage the foreign national has an option to get registered as an Indian citizen. Even then the person must fulfil the requirement of residency before they can apply for Indian Citizenship 31. Mere relinquishment of original Citizenship cannot be perceived as an intent of seeking Indian Citizenship. The Citizenship Act does not provide for a scenario where a person residing in India upon relinquishing her his original Citizenship is automatically considered to be a citizen of India. Possibility of a person though not the appellant migrating to a third country cannot be ruled out. As such continuous and uninterrupted stay in India cannot be a factor determining in anticipation of a person choosing to exercise right seeking Citizenship under the Citizenship Act. 32. The appellant failed to follow the procedure as set out in the Citizenship Act. Considered thus neither under the Indian Constitution nor the Laws framed thereunder any right of Citizenship can be said to have conferred upon her. The Issues are answered 33. This now brings us to the ancillary issue No.(iii) as to whether the documents produced by the appellant can form the basis WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 of conferring Citizenship upon her or not. The answer in the light of the discussion cannot be in the affirmative 34. The Hon’ble Apex Court in Sarbananda Sonowal v Union of India 5 SCC 665 lays down certain principles in dealing with cases of illegal migrants. One of them being that the burden of proof would be upon the proceedee as he would possess the necessary documents to show that he is a citizen not only within the meaning of the provisions of the Constitution of India but also within the provisions of the Citizenship Act 35. The principles stand reiterated in Sarbananda Sonowal II) v. Union of India 1 SCC 174 36. The Hon’ble Supreme Court in Rupjan Begum v Union of India1 SCC 579 held the certificate issued by the Gram Panchayat Secretary not to be proof of Citizenship clarifying further that such right be determined under the provisions of 37. The Hon’ble Supreme Court in Bhanwaroo Khan v Union of India 4 SCC 346 held that long stay in the country and enrolment in the voters list would not confer any right on an alien to continue to stay in the country. Further elaborated the right of Citizenship be determined both under the Constitution of India as also the Citizenship Act. WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 38. This Court in Vijoy Kumar Chaudhary v The State Election Commissioner has held that the voter ID is not sufficient and conclusive evidence of Citizenship Enrolment in a voter roll is based on the applicant filing a declaration with authority via Form 6 under Rules 13(1) and 26 of Registration of Electors Rules 1960 stating that they are a citizen of India. The legal status of the applicant s Citizenship precedes her enrolment on the electoral rolls. If such a declaration of Citizenship is found to be false the applicant is liable for punishment. 39. The Hon’ble Supreme Court in State of U.P. v Rehmatullah 2 SCC 113 has reiterated that the right of a person of Citizenship is considered under the Citizenship Act and observed as under: “11. In Shuja Ud Din v. Union of Indiathis Court speaking through Gajendragadkar J. as he then was It is now well settled that the question as to whether a person who was a citizen of this country on January 26 1950 has lost his Citizenship thereafter has to be determined under the provisions of Section 9 of the Citizenship Act 1955that this question has to be determined by the WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 Central Government before a person who was a citizen of India on January 26 1950 could be deported on the ground that he has lost his citizenship rights thereafter under Section 9 of the Citizenship Act. Unless the Central Government decides this question such a person cannot be treated as a foreigner and cannot be deported from the territories 12. In Abdul Sattar Haji Ibrahim Patel v. State of Gujarat2 SCJ 461 :Gajendragadkar C.J. speaking for a Bench of five Judges approved the decisions in the cases of Izhar Ahmad Khan and Syed Mohd. Khan it being emphasized that the decision of the Government of India is a condition precedent to the prosecution by the State of any person on the basis that he has lost his Citizenship of India and has acquired that of a foreign country. That an inquiry under Section 9 of the Citizenship Act can only be held by the Central Government was again reaffirmed by this Court in Mohd. Ayub Khan v. Commissioner of Police Madras2 SCR 884].” 40. Reading of the Representation of the People Act 1950 shows that non citizens are disqualified from entering their names in the voter list. Additionally under Section 22 it also contemplates a possibility that an erroneous or defective entry is made in the voter list and such cases provide the registration officer with authority to correct the voter list. The Act does not provide that name in the electoral roll would be proof of Citizenship of India WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 Further to obtain a Voter identity card and get a name added to the voter list a person need only submit recent passport size photo b) proof of residence andproof of age along with the relevant Form. Persons are not required to submit any evidence of Citizenship for this registration. Necessary documents to obtain the card do not act as proof of Citizenship it indicates that voter identity card and name on voter list would not be proof of Citizenship 41. Mere registration of a person’s name in the voter list ipso facto does not confer Citizenship. On this issue the only exception being the judicial pronouncement of the Hon ble Apex Court in Lal Babu Hussein v. Electoral Registration Officer 7 SCC 59 the Hon ble Apex Court elaborately discussed the issue of necessity use and benefit of Pan Card issued under the provisions of Section 139AA of the Income Tax Act 1961. Even here the Court did not hold that possession of such a card not to confer any right of WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 43. The purpose of the PAN card is to facilitate the payment of taxes to the Indian State which foreigners may also be required to 44. The Gauhati High Court in Mustt. Rabiya Khatun v The Union of India4986 2016] Jabeda Begum @ Jabeda Khatun v. The Union of India &Ors.[WP© 7451 2019] Md. Babul Islam v. Union of India3547 2016] has held a Pan Card not to be a piece of valid evidence establishing persons citizenship of 45. This Court in Narendra Narayan Das v. State of Bihar AIR 2008 Pat 124 while examining the issue of a citizen of Nepal in the backdrop of the Nepal Citizenship Act held that Citizenship of a foreigner is determined under the Municipal laws of the parent country and not the Indian Citizenship Act. 46. The High Court of Bombay in Motimiya Rahimmiya v. State of Maharashtra AIR 2004 Bombay 460 held as under: “9. In the instant case the plaintiffs have not proved their birth in India and that is the basic requirement of claiming Citizenship. Therefore the trial Court has rightly rejected the claim and contentions of the plaintiffs. 10. Counsel for the respondent State relied upon the judgment of the Supreme Court reported in4 SCC 346: AIR 2002 SC 1614 Bhanwaroo Khan v. Union WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 of India and the another judgment reported in9 SCC 281 A.I Lawyers Forum for Civil Liberties v. Union of India In the case of Bhanwaroo Khan the Supreme Court has held that long stay in country and enrolment in voters list does not confer any right to an alien to continue to stay in country. In view of this and in view of the aforesaid reasons all the Appeals are dismissed with Civil Applications. Certified copy 47. The eligibility criteria for obtaining an Aadhaar Card is residency in India for a period of 182 days or more not citizenship Section 9 of the Aadhaar Act 2016 clearly states that an Aadhaar number or authentication thereof shall not by itself confer any right of or be proof of Citizenship or domicile of the Aadhaar number holder. Hence the appellant cannot rely on her PAN card and Aadhaar Card as proof of Indian Citizenship. The Registration Act 1908 which provides for mutation of names in the case of transfer of property only requires that document by which property is transferred be registeredalong with affixing of passport size photo thumbprint on the document8 SCC 233 held that even a certificate of registration under Section 5(1)(c) of the Citizenship Act may be challenged in an election petition under Section 82(1)of the Representation of the People Act 1951 51. Hence Issue No.cannot be answered in favour of the appellant. 52. We now deal with Issues No.of the Constitution mandates the State to foster respect for international law and treaty obligations in the dealings of organized people with one another 56. The UNHRC 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are presently the leading multilateral treaties about the prevention and reduction of statelessness. Both conventions simply confirmed the prevailing international law custom of a state s duty to prevent and reduce statelessness. While India is not a signatory to WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 either Statelessness Convention this duty to prevent statelessness has been consolidated in several other international legal instruments that India is a party to. This includes Article 15 of the Universal Declaration of Human Rights Article 24 of the International Covenant on Civil and Political Rights Article 9 of the Convention on Elimination of All Forms of Discrimination Against Women Article 5 of the International Convention of Elimination of All Forms of Racial DiscriminationArticle 7 of the Convention on the Rights of the Child and the Convention on the Nationality of Married Women. It may be helpful to reproduce some of these provisions here. 57. Article 15 of the UDHR states “(1) Everyone has the right to a nationality 2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” 58. Article 5 of the ICERD is as follows “In compliance with the fundamental obligations laid down in article 2 of this Convention States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone without distinction as to race colour or national or ethnic origin to equality before the law notably in the enjoyment of the WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 a) The right to equal treatment before the tribunals and all other organs administering justice c) Political rights in particular the right to participate in elections to vote and to stand for election on the basis of universal and equal suffrage to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service d) Other civil rights in particular i) The right to freedom of movement and residence within the border of the State ii) The right to leave any country including one s own and to return to one s country iii) The right to nationality iv) The right to marriage and choice of spouse …” 59. Article 9 of the CEDAW is as follows “1. States Parties shall grant women equal rights with men to acquire change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife render her stateless or force upon her the nationality of the husband 2. States Parties shall grant women equal rights with men with respect to the nationality of their children.” 60. It is important to note that India has not made any reservations against any of these listed articles. WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 61. Additionally Article 15(2) of the UDHR prohibits arbitrary deprivation of nationality. This is an important protection in situations where the denial of nationality leads to statelessness. India played an active role in the introduction of this right into the draft Article 15during the UDHR drafting sessions. Ms. Hansa Mehta the Indian representative at the UDHR drafting sessions called the right against arbitrary deprivation of nationality as ‘the fundamental right’ 62. India and Nepal have a history of bilateral engagement Article7 of the Treaty of Peace and Friendship between the Government of India and the Government of Nepal 1950 promises the grant of privileges relating to movement residence ownership of property trade and commerce etc. between the two countries on a reciprocal basis. 63. Rule 4(1)(g) of the PassportRules 1950 exempts Nepalese and Bhutanese from carrying a valid passport when entering India from land or air from the Nepalese or Bhutanese 64. Nepalese citizenship law is primarily enshrined in two The Constitution of Nepal The Nepal Citizenship Act 2063Act 1920. Nepalese Citizenship is terminated upon the voluntary acquisition of Citizenship of another country including India. To re acquire Nepalese Citizenship the former citizen of Nepal must return to reside in Nepal and submit a notification to the concerned authority for reinstation of Citizenship 66. There can be little doubt that the petitioner failed to register herself as a citizen under Section 5 of the Citizenship Act Her voter ID cannot function as proof of Citizenship since the status of Indian Citizenship precedes the enrolment onto the electoral roll. It must be emphasized that the conferral of Indian Citizenship is the prerogative of the Central Government. Whether the petitioner intentionally misrepresented facts in her Form 6 application for her voter ID or whether it was a bona fide mistake as she presumed the electoral roll process was sufficient as registration for Indian Citizenship is a question we will not delve into 67. However we cannot ignore the question of the petitioner s current legal status. She relinquished her Nepalese Citizenship in 2016. She does not seem to possess any other nationality. She owns assets immovable property here. She has continuously resided in India since her marriage and has two WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 children both resident in India from the wedlock. These facts together perhaps do demonstrate her intention to make India her permanent home domicile. There is an additional bureaucratic hurdle in registering herself under the Citizenship Act the documents to be attached for an application under Section 5 per Form III under Rule 5(1)(a) of the Citizenship Rules 2009 include a copy of valid Foreign Passport and a copy of the valid Residential permit. To re obtain her Nepalese Citizenship she will have to return to "reside" in Nepal before applying for Citizenship away from her immediate family in India 68. Yet at the same time this Court is not permitted to direct the Central Government to grant the petitioner Indian citizenship. This would impinge upon the Executive s functions However in light of the peculiar situation of the petitioner her ordinary residence and family life in India and India s international law obligations to prevent statelessness we direct that upon receipt of the petitioner’s application if so filed the appropriate authority may consider her application expeditiously keeping in mind the complications that have emerged in her legal status as enumerated 69. We thus answer the issues as under: WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 70. Given the law laid down by this Court in Rajani Kumarithe State Election Commission was empowered to set aside the petitioner’s election on the specified ground under Section 136(1) of the Panchayat Act of her not being an Indian Issue Nos.(ii) &mere relinquishment of Citizenship of Nepal does not confer upon her any right of Indian Citizenship which right flows only from and under Part II of the Constitution of India and the Citizenship Act Issue No.Rupjan Begum Bhanwaroo Khan and State of U.P. v. Rehmatullah supra) and the other judicial pronouncements discussed mere possession of a Pan Card a Voter ID Card or an Aadhar Card cannot be said to be proof of Indian Citizenship. ADDITIONAL DIRECTION Issue No.(v WWW.LIVELAW.IN Patna High Court L.P.A No.1320 dt.12 10 2020 73. Petitioner appellant s application under the Citizenship Act as and when filed shall be processed and disposed of expeditiously per law 74. For all the reasons mentioned above we do not find any illegality or perversity in the impugned judgment dated January 21 2020 passed in CWJC No.191019 titled as Kiran Gupta Versus the State Election Commission & Ors. However we dispose of the present appeal with the observations mentioned above. 75. No order as to costs. S. Kumar J. I agree (S. Kumar J

Summary: In the case of Kiran Gupta Vs State Election Commission &amp; Ors. [Letters Patent Appeal No.139 of 2020 in Civil Writ Jurisdiction Case No.19109 of 2019] Patna High Court held that the foreign national does not become an Indian citizen on marriage with a citizen under the Act. The appellant, Kiran Gupta, was born and brought up in Nepal. In 2003, she solemnized her marriage and after that started permanently residing with him in India as his wife. After her marriage, she, (a) got her name entered into the voters list prepared in the year 2008 for elections to the Assembly of Bihar; (b)in her name she has (i) an account with a bank in India, (ii) a Pan Card issued by the Income Tax Department, and (iii) an Aadhaar Card; (c) names of her children born out of the wedlock are registered in India under the Registration of Births and Deaths Act, 1969 and the respective Rules framed thereunder; (d) pursued her higher education in India; (e) purchased an immovable property in India, vide sale deed. The sale stands recorded with an entry of mutation in her name for which also she paid fee/rent to the Government of Bihar; and (g) relinquished her Nepali Citizenship in February 2016. The issue of her nationality became the subject matter of challenge in the year 2018 after she was elected as a Mukhiya of Gram Panchayat. The respondent challenged her election on the ground of disqualification which she entailed under sub-section 1(a) of Section 136 of the Bihar Panchayat Raj Act, 2006. The State Election Commission, set aside her election, which action she challenged by way of a writ petition. The Court held the appellant to have voluntarily relinquished her Citizenship of Nepal in February 2016, and as such not being a citizen of India, entailed disqualification under the Panchayat Act. Court observed while referring the case of Rajani Kumari Versus State Election Commission &amp;Ors. (2019) 4 PLJR 673 where it was held that, “The State Election Commission was empowered to set aside the appellant’s election under Section 136 (1) of the Panchayat Act. The State Election Commission shall entertain and consider the ‘disqualification’ issues on the basis of the unimpeachable materials placed before him. Whether a complaint brought before the Commission either suo-moto or by any other person, the Commission shall at the first instance enquire whether it is a purely election dispute and only when it is found that the dispute brought before it is not a purely election dispute, the Commission shall proceed to consider the same on the basis of unimpeachable materials.” Court further observed that, “The object of the Citizenship Act is to provide for the acquisition and determination of Indian Citizenship. Section 5 of the Citizenship Act deals with such persons who seek Citizenship by registration. In National Human Rights Commission Versus State of Arunachal Pradesh and another, (1996) 1 SCC 742, the Apex Court clarified that a person can be registered as a Citizen of India only if he satisfies the requirement contained in Section 5. The appellant did not ever file for registration of citizenship. An oath of allegiance is necessarily required to be taken by the appellant. Hence, by her actions and conduct, she precluded herself from being considered as a citizen under the Citizenship Act.”