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1995 DIGILAW 1070 (SC)

Dipali Katia Chadha: Manoranjan Tania Chadha v. Union Of India

1995-09-14

A.M.AHMADI, K.S.PARIPOORNAN, SUHAS C.SEN

body1995
ORDER 1. The father of these two petitioners Shri Vinod Chandra Chadha wrote a letter dated 7-3-1989 to the Secretary, Ministry of Home Affairs, Government of India, New Delhi claiming that both his daughters were entitled to be declared to be citizens of India by virtue of Article 5 of the Constitution and Section 4(1) of the Citizenship Act, 1955. In addition to this claim of Indian citizenship he further stated they were citizens of Britain by virtue of their birth in England and of Finland by virtue of their mothers nationality. The particulars in regard to their dates of birth, passports, foreign travels, etc., were also furnished in the said letter and it was said that "citizenship status flowing as a birthright can neither be treated as having been, nor deemed to have been, voluntarily acquired". Since both the petitioners held British and Finnish passports it was contended that foreign citizenship, where it subsists as a birthright, subsists from the day of birth and cannot operate as a disqualification under Section 9 of the Citizenship Act in respect of their claim to Indian citizenship. The Government of India replied by saying that there was no provision in the Citizenship Act for grant of dual citizenship and invited attention to Section 9(1) of the Citizenship Act. It is this reply dated 7-4-1989 which has prompted the petitioners to move this Court under Article 32 of the Constitution. 2. In the course of the preliminary hearing of these petitions we inquired of counsel for the petitioners who had since attained majority to state whether the petitioners would be willing to renounce their British and Finnish nationalities if this Court holds that the petitioners are not entitled to multiple nationalities and must choose to retain either the Indian nationally or the other two nationalities conferred on them. In answer to this query the petitioners filed their reply affidavit dated 2-8-1995, in para 4 whereof it was stated : "It is respectfully submitted that to make such an election would defeat the object of the writ petition. In answer to this query the petitioners filed their reply affidavit dated 2-8-1995, in para 4 whereof it was stated : "It is respectfully submitted that to make such an election would defeat the object of the writ petition. Additionally this question does not arise out of the instant writ petition on account of the fact that if it is held that I do have multiple nationally, including Indian nationality, then there is no provision for any election/choice to be made by choosing any nationality in preference to any other nationality when all the nationalities are conferred upon me by operation of the laws in India, England and Finland respectively. In these circumstances and on account of the reasons which are more fully set out in para 7, I respectfully submit that there is no choice to be exercised and I must, therefore, decline to renounce any of my nationalities including my Indian nationality. Having been conferred Indian, English and Finnish nationalities respectively I am not obliged or required by any law of any of these countries to renounce one or more nationalities or elect between them." In para 7 they further averred that it would be impossible to make a choice between two cultures and they did not feel compelled to make the choice. That is because in their opinion Indian nationally was fundamental just as the other two nationalities. Thus the petitioners have refused to indicate their choice. 3. It is thus an admitted fact that the petitioners hold valid British and Finnish passports and while desirous of retaining the citizenship of the said two countries they are claiming that they are citizens of India as well and the Government of India should recognise the same. To appreciate their claim we may refer to the relevant articles in Part II of the Constitution entitled Citizenship. Article 5 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." 4. Article 8 says that notwithstanding anything in Article 5, any person who or either of whose parents or any of whose grandparents was born in India and who is ordinarily residing in any country outside India shall be deemed to be a citizen of India if he has been registered as such by the diplomatic or consular representative of India in the country where he is for the time being residing. Admittedly the petitioners have not followed this procedure. Then comes Article 9 which provides that no person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or 8, if he has voluntarily acquired the citizenship of any foreign State. 5. We may briefly refer to the relevant provisions of the Citizenship Act. Section 4 provides that a person born outside India after 26-1-1950 but before the commencement of the Amendment Act, 1992, shall be a citizen of India by descent if his father is a citizen of India at the time of his birth. The petitioners claim that their father has always been a citizen of India and, therefore, they have acquired Indian citizenship by descent. We may now notice Section 9 which reads as follows : "9. Termination of citizenship. - (1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between 26-1-1950 and the commencement of this Act voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India : Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs. (2) If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf." 6. Rule 30 of the Citizenship Rules, 1956 provides that if any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purposes of Section 9(2), be the Central Government. Rule 30 of the Citizenship Rules, 1956 provides that if any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purposes of Section 9(2), be the Central Government. It further provides that the Central Government shall have due regard to the rules of evidence specified in Schedule III. That Schedule provides that where it appears that a citizen of India has voluntarily acquired the citizenship of any other country, it may call upon the person concerned to prove that he has not voluntarily acquired the citizenship of that country. It next provides in para 3 that the fact that a citizen of India has obtained a passport from the Government of any other country "shall be conclusive proof" of his having "voluntarily acquired" the citizenship of that country before that date. Since the petitioners have admittedly obtained passports from the Governments of Britain and Finland, the question is whether they have voluntarily acquired the citizenship of those countries. The presumption, as held by this Court in Izhar Ahmad Khan v. Union of India [1962 Supp (3) SCR 235 : AIR 1962 SC 1052 : (1962) 2 Cri LJ 215], is a rebuttable one. The jurisdiction to decide this question vests in the Central Government by virtue of Section 9(2) of the Citizenship Act read with Rule 30 of the Rules made thereunder. 7. In the context of the above, the questions which arise for consideration are (i) whether the petitioners are entitled to claim citizenship by descent by virtue of Section 4(1) of the Citizenship Act and (ii) if yes, can it be said that the petitioners had "voluntarily acquired" citizenship of another country since they had obtained passports from the Governments of Britain and Finland. Inquiry on the latter aspect would have to be under Section 9(2) of the Citizenship Act by the Central Government. It would be for the Central Government to consider if the refusal to make an option would have any bearing on the questions posed. The reply given by the Government of India dated 7-4-1989 does not show if the point raised was correctly appreciated by the said Government. It would be for the Central Government to consider if the refusal to make an option would have any bearing on the questions posed. The reply given by the Government of India dated 7-4-1989 does not show if the point raised was correctly appreciated by the said Government. However, now that the petitioners are majors we direct that these petitions be treated as representations to the Central Government and the latter may decide the questions raised at an early date keeping in mind the written submissions filed in the present proceedings. Counsel for the petitioners will forward a complete set of documents containing copies of the petitions and written submissions along with this order to the Central Government for disposal in accordance with law. The Central Government should briefly indicate its reasons for the conclusions reached so that the order becomes intelligible. If the Central Government decides to inquire under Section 9(2) of the Citizenship Act it will follow the procedure it ordinarily follows while holding such an inquiry. 8. With these directions we dispose of these writ petitions with no order as to costs.