....Title - House Guest: Can Sonia Gandhi Be An MP? Author:
......................N H Hingorani
............Publication: The Statesman, Calcutta
...................Date: Nov 6, 1999
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 September 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 Constitution 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 Parliament.
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 Articles 5 to 11 pertain to citizenship of India. Article 5 declares that at the commencement of the Constitution, 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, Naturalisation 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.
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 Constitution 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 acquired 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.
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 excludes citizens by birth, descent 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.