Frontline Volume 16 - Issue 12, June 05 - 18, 1999
India's National Magazine
from the publishers of THE HINDU


Table of Contents

POLITICS

Citizen Sonia

Sonia Gandhi's credentials as an Indian citizen, and her right to be considered for high office, including the post of Prime Minister, are constitutionally and legally beyond challenge.

V.VENKATESAN

The current political discourse over Congress(I) president Sonia Gandhi's Indian citizenship has so far been marked by exchanges of invectives and innuendoes between Congress(I) leaders on the one hand and leaders of some of the parties opposed to the Co ngress(I) on the other. While Congress(I) leaders have been on the defensive, Sonia Gandhi's critics have been unable to substantiate their charges against her beyond making general chauvinistic claims that she is a foreigner, and therefore, is unfit to be the Prime Minister. The Bharatiya Janata Party and its allies in the National Democratic Alliance (NDA), and the Nationalist Indian Congress of the expelled Congress(I) leaders led by Sharad Pawar have spoken of including in their respective election manifestoes a promise to amend the Constitution. The purpose of this will be to restrict high constitutional posts such as the offices of President, Vice-President and Prime Minister to "natural-born" citizens of India - a move fraught with grave implica tions for equality before law, which is guaranteed by the Constitution.

Those who argue for a constitutional amendment have given away, at the outset, most of their case. They have conceded, perhaps unwittingly, that Sonia Gandhi has qualified for citizenship under the existing constitutional and statutory provisions and the refore it is imperative to bring necessary amendments, at least, to prevent such naturalised citizens (that is, those not born in India and to Indian parents) from becoming President or Prime Minister. However, doubts have been cast on why Italian-born S onia Gandhi chose to acquire Indian citizenship in 1983 and not earlier (she has been residing in India since 1968, the year she married Rajiv Gandhi).

There is no dispute over the fact that Sonia Gandhi qualified for citizenship through naturalisation as laid down by the citizenship law and rules. She could not have applied for citizenship by registration until 1986. Before 1986, only people of Indian origin, if they had resided in India for six months before the date of their application, qualified for citizenship by registration. Sonia Gandhi's only qualification for Indian citizenship by registration was her marriage with Rajiv Gandhi. However, for this she might have had to wait until 1986 when Section 5 (c) was inserted in the Citizenship Act, 1955, through an amendment. The inserted section enables a foreign spouse marrying an Indian citizen to acquire Indian citizenship by registration, if he or she has resided in India for five years at the time of applying.

Sonia Gandhi, therefore, became an Indian citizen in 1983 by naturalisation as provided for under Section 6 of the Citizenship Act, 1955. This section enables any person not born in India or having Indian parents to become an Indian citizen if he or she has resided in the country for at least eight years on the date of application. The person concerned must have resided in the country throughout the eighth year. (The 1986 amendment increased the residence requirement to 13 years.) It is clear that Sonia Gandhi fulfilled the residence requirement.

Section 6 of the Citizenship Act enables the Centre to grant a certificate of naturalisation to foreigners, other than those living in the Commonwealth countries and Ireland, if they seek Indian citizenship and fulfil the conditions specified in the Thir d Schedule of the Act. The Centre can waive any or all of the conditions specified in the Third Schedule if, in its opinion, the applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peac e or human progress. In Sonia Gandhi's case, there can be no doubt that she sought Indian citizenship through fulfilling the conditions specified in the Third Schedule.

The first condition is that the applicant is not a citizen of any country where citizens of India are ''prevented by law or practice'' of that country from becoming citizens of that country by naturalisation. Frontline has confirmed after enquiry (see box) that in Italy, there are no such restrictions on Indians or other foreigners from becoming citizens by naturalisation. Unlike India, Italy does not impose any restriction on its citizens enjoying dual or even multiple citizenship. The only exce ptions are those provided by the Strasbourg Convention of May 6, 1963 on the reduction of double or multiple citizenship, which deals mostly with European countries. Nor does Italy restrict its high constitutional posts or any public office or elective p osition to natural-born citizens. Under the Italian Constitution and law, any person who has acquired Italian citizenship has the same rights as an Italian citizen by birth.

The second important condition in the Third Schedule is that if the applicant is a citizen of any other country, he or she must renounce its citizenship in accordance with the law in force there, and notify such renunciation to the Central Government. Su ch restriction on dual citizenship in India stems from the nationalist moorings of the early years of the Indian republic, when undivided citizenship was considered a strength and a patriotic imperative. Sonia Gandhi's enemies have speculated, without do ing any home work, that she may not have renounced her citizenship of Italy since that country allows dual citizenship. Senior Congress(I) leader Pranab Mukherjee asserted that she surrendered her Italian passport on April 27, 1983, thereby relinquishing her Italian citizenship. Her political enemies refused to accept this assertion and demanded documentary proof. But what was strange was that a statutory provision for dual citizenship in Italy, which in no way prevented an Italian citizen from volu ntarily giving up Italian citizenship, was being bandied about in the Indian political marketplace as ammunition to use against one who had been indisputably an Indian citizen for 16 years. On May 20, a Congress(I) press statement revealed that she appl ied for Indian citizenship on April 7, 1983, got it on April 13 and renounced her Italian citizenship on April 27, 1983.

SHANKER CHAKRAVARTY

Sonia Gandhi also fulfilled another condition laid down in the Third Schedule that she must have adequate knowledge of a language specified in the Eighth Schedule of the Constitution, with her more than adequate working knowledge of Hindi.

Sonia Gandhi was enrolled as a voter in 1980 in the New Delhi Lok Sabha constituency - three years before she acquired Indian citizenship - and following an expose in the media, her name was deleted from the electoral rolls in 1982. She exercised her r ights as a voter after acquiring Indian citizenship in 1983. The Congress(I) has stated that she did not exercise her franchise before 1983, although her name appeared in the voters list between 1980 and 1982. Had there been any evidence of her voting be tween 1980 and 1982, she could have been prosecuted for making a false statement in Form 6 - the application for seeking voting rights - that she was a citizen of India, as only citizens can exercise the franchise. Media reports during the 1980 general e lections suggest that only Indira Gandhi and Rajiv Gandhi voted in the Nehru-Gandhi household. It would be absurd to suggest that Sonia Gandhi sought to be included in the voters' list in order to secure her Indian citizenship, as being a voter is not a condition for determining whether a person is a citizen.

Is it the case that India's Constitution-framers reckoned only with natural-born citizens, and did not think of a "naturalisation" process for foreign-born persons to acquire Indian citizenship? Articles 5 to 11 in Part II of the Constitution deal with the subject of citizenship. Article 5 deals with citizenship at the commencement of the Constitution. It confers citizenship on every person who has his or her domicile in the territory of India and "(a) who was born in the territory of India; or (b) eit her 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 preceding such commencement." Article 11 empowers Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. This was achieved by the Citizenship Act, enacted by Parliament in 1955.

Clearly, the objective of the Constitution-makers - as evident from the August 1949 debates on the issue of citizenship in the Constituent Assembly - was not exclusivist. They were concerned with prescribing general qualifications for citizenship and lef t it to Parliament to decide the position of persons who are not born Indians. They agreed that there would be the law of naturalisation which would make detailed provisions relating to persons who are not born of Indian parents.

It is to the credit of the Indian Constitution that it does not distinguish the rights of citizens on the basis of how they acquired citizenship - by birth, descent, registration, naturalisation or incorporation of territory. It does not create different classes or categories of citizens. Vitally, unlike its United States counterpart, the Indian Constitution does not restrict eligibility to the top constitutional offices of President and Vice-President to natural-born citizens. There is also no question of placing any such restriction on eligibility to become a Minister or Prime Minister or Chief Minister. It was certainly a conscious decision of the Constitution-makers, as any such distinction between natural-born and naturalised citizens would milita te against equality before the law ensured by the Constitution.


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