Friday, April 3, 2009


But there are some sectors in which the government goes beyond this fundamental check and virtually insists that the employee's spouse also be a citizen of India by birth. Examples, which easily come to mind, are the armed forces and the Indian foreign service (IFS). 1
Section 33 of the Army Order says that army personnel desirous of marrying foreign nationals, except the nationals of Bhutan, are required to obtain prior government sanction for such marriages. This order, however, exempts Gorkhas, whether of Nepalese origin or of Indian domicile, who desire to marry Nepalese or Indian subjects. 1
An officer intending to marry a foreign national has to fill out an elaborate application and send it to army headquarters four months prior to the date of marriage. Alongside this application, the office has to also send an application for release from the army "for personal reasons", a written application from the officer's spouse-to-be that he or she will renounce his or her original nationality and accept Indian citizenship as soon as the Indian Citizenship Act permits him or her to do so. 1
The army also insists on an undertaking from the officer that his/her application for release from the service may be automatically processed if the foreign spouse "refuses to acquire Indian citizenship or wilfully delays acquisition of Indian citizenship". 1
Further, the officer's application must be accompanied with an application by the spouse-to-be for Indian citizenship and complete details of the latter's background, including occupation in the last five years, degrees and diplomas obtained and proficiency in languages. 1
So, what happens after all this rigmarole? Senior officers in the armed forces do not recall any instance of a colleague being permitted by the government to marry a foreign national. In fact, the army is so fastidious that recently a lady officer in the Army Medical Corps, who was betrothed to an Indian green cardholder in the United States, had to quit the service before marriage because her fiance declined to give an undertaking that he would retain his Indian citizenship. 1
To order also says that the services of army personnel, who marry foreign nationals without permission, will be terminated. Air force and navy personnel have to go through a similar exercise, but the end result is usually the same - no permission. 1
The situation in the Indian foreign service is slightly better, but IFS officials too have to go through these hassles, if they wish to marry a foreign national. Till a decade ago, no member of the IFS was permitted to marry a foreign national. The government usually asked such officials to put in their papers. IFS officers says that in recent years the government has been much more liberal in dealing with such issues, but the rules continue to be rigid. Clause 8(1) of the Indian Foreign Service (conduct and discipline) Rules, 1986 says no member of the service shall marry any person other than an Indian citizen "without the prior permission in writing of the government". 1
Officers who intend to marry foreign nationals have made a written application to the foreign secretary and give the government one year to reply. Clause 8(3) says, "If a member of the service contracts marriage with a person other than an Indian citizen without obtaining prior written permission, he shall be liable to be removed from the service." 1
The rules further state that the government reserves the right to refuse permission if it feels to marriage will hinder proper performance of the duties of the member of the service. In case permission is accorded, "the government may stipulate such conditions as it may deem appropriate". 1
Therefore, what emerges from all this is that you cannot enter the Indian armed forces unless you establish your Indian citizenship and you will be asked to put in your papers if you acquire a foreign spouse. Italian-born Sonia Gandhi can be Prime Minister, order around the armed forces, let herself in on all state secrets and even determine India's strategic defence doctrine. And while she zealously pursues this ambition, Congress spokespersons say that it is graceless and uncivil to ask her the most rudiment questions about her Indian citizenship. 1
It is this inequity between Indian-Indians and Italian-Indians that the former find abhorrent. 1
Article 84 of the Constitution says that a person shall not be qualified to be chosen to fill a seat in Parliament unless he or she is a citizen of India.
Article 102 provides that a person shall be disqualified from being chosen as, and for being, a member of either House if he or she is not a citizen of India or has voluntarily acquired the citizenship of a foreign state, or is under any acknowledgement of allegiance or adherence to a foreign state. That a returned candidate was 'not qualified' or 'was disqualified' to be chosen on the date of his election, is specifically a ground for declaring his/her election void under Section 100(1)(a) of RPA, 1951.
Section 16 of RPA, 1950 provides that a person shall be disqualified for registration in an electoral roll if he or she is not a citizen of India.
Sonia Gandhi applied for Indian citizenship by registration, under Section 5(1)(c) of the Citizenship Act, on April 7, 1983 by virtue of her marriage to Rajeev Gandhi in 1968. She voluntarily renounced her Italian citizenship by surrendering her Italian passport to the Italian Embassy in New Delhi on April 27, 1983. This, says Janata Party president, Dr. Subramanian Swamy (who has also been raising questions with regard to Sonia Gandhi's citizenship), had been confirmed by the then Italian Ambassador to India on April 29.
The Ambassador had apparently stated that Sonia Gandhi had returned her Italian passport by claiming that she had renounced her Italian citizenship. But if we accept the argument that holding of passport is an essential requirement of being citizens than person like me would not remain Indian, as I do not hold Passport.
The Bench appreciated the forensic ability of the petitioners in making such a plea, but refused to entertain or adjudicate it for two reasons. First, the petitioners had not stated all material facts to enable the court to examine such a plea with far-reaching implications. Secondly, the challenge so sought to be laid to the constitutional validity of the provisions of the Citizenship Act is very wide and cannot be adjudicated upon without impeding the Central government as a party to the proceedings.
Those who support Mr Sonia Gandhi’s candidature for the Prime Minister's office point out that there is no specific provision in the Constitution, which bars a foreigner who has acquired Indian citizenship from holding the post. But Article 102(1)(d) of the Constitution, dealing with the disqualification of persons from becoming members of Parliament, is germane to this question. This Article reads as follows:
"102. Disqualification for membership: (1) A person shall be disqualified from being chosen as, and for being, a member of either House of Parliament (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of another country, or is under any acknowledgement of allegiance to a foreign state." Article 9 of the Constitution states: "No person shall be a citizen of India... or be deemed to be a citizen of India... if he has voluntarily acquired the citizenship of any foreign state.
This is what is popularly interpreted to mean that India doesn’t allow dual citizenship. For losing his citizenship, an Indian has to commit the overt act of acquiring the citizenship of a foreign country. Our Constitution doesn’t provide for a voluntary renunciation of citizenship by an Indian for the reason say, he is disgusted with its politicians or with the performance of its cricket team in the World Cup.
On the contrary, Article 10 stipulates, "Every person who is or deemed to be a citizen of India under any of the foregoing the provisions of this part shall, subject to the provisions of any law that may be made by Parliament, continue to be such a citizen."
The Constitution of Italy, on the contrary, allows dual citizenship, implying that an Italian citizen can simultaneously be a citizen of another foreign state also. Conversely, the fact that an Italian has voluntarily acquired the citizenship of another foreign state does not mean he/she has ceased to be a citizen of Italy.
Therefore, the fact that Mrs. Sonia Gandhi has voluntarily acquired Indian citizenship doesn’t, ipso facto imply that she has ceased to be an Italian citizen, unless there is a specific provision in the Italian law for voluntary renunciation of Italian citizenship and she has legally exercised that option.
To prove that Mrs. Sonia Gandhi is a full-fledged Indian citizen now, Mr Pranab Mukherjee declared in an interview that she doesn’t possess an Italian passport now but has been travelling on an Indian passport since 1984. However, possession of passport is not a necessary condition for citizenship. A majority of Indians do not possess a passport, and this fact does not detract from their Indian citizenship.
The moot question, therefore, is not whether Mrs. Sonia Gandhi has acquired the citizenship of India, but whether she has ceased to be a citizen of Italy under the Constitution of that country. If the answer to the second question is in the negative, she will come under the prohibition in Article 102 (1)(d) of our Constitution from being a member of Parliament and consequentially, from becoming the Prime Minister.
The statement that the Supreme Court of India found the issue in favour of Sonia Gandhi is factually incorrect. The petition stating that Sonia Gandhi cannot contest for Lok Sabha was filed by a private individual. The Supreme Court dismissed it with the limited finding that the petitioner had not established that Sonia Gandhi suffered from any disqualification. It was not a definitive finding after examining the relevant aspects of the law and the facts. The point I had raised in above paragraph, which is still valid, was neither advanced before the court nor examined by the judges.
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1 comment:

  1. Nice Info! There are so many people who wish to get the citizenship of a country just to use the rights of the country.

    Citizenship with Italy | Italian Records