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        The Supreme Court on 18 April 2007 issued notice to the Centre and the Election Commission on a petition whether a person of foreign origin could be appointed to hold a public office. A Bench headed by Chief Justice K.G.Balakrishnan sought response from the Centre on a petition filed by Rashtriya Mukti Morcha (RMM), a
socio-political organisation, challenging the Delhi High Court judgment dismissing a petition in this regard.

        During the brief hearing, senior advocate P.N.Lekhi raised the issue of Congress president Sonia Gandhi being invited in 1999 to form a government by the then President. The RMM contented that a political party cannot be headed by a person who has assumed citizenship by registration.

        The Bench, which agreed that an important Constitutional issue has been raised in the petition, said it would confine itself to the question whether a person who is not born in the country can be appointed to a public office. (Agencies)

        Though Sonia Gandhi has been a Member of Parliament for more than 8 years, the probity, the quality of her citizenship remains unsettled, untested and vulnerable to legal and constitutional challenge. To quote the appropriate words of K N Bhat, an eminent jurist and former Additional Solicitor General of India in this context: 'Sonia Gandhi's 'foreign origin' need be of no concern; but the quality of her Indian Citizenship is a serious public issue because she is being projected as the future Prime Minister of our country. True it is that politicians remember it only when a General Election is about to be announced. But P.A.Sangma remained a notable exception. When the Constitution Review Committee appointed by the NDA Government in February 2000 refused to take up this fundamental Constitutional issue despite their having total freedom to do so, Sangma protested and resigned in protest as its Member. But apparently no one else appeared disturbed'.

        In September 2001, the Supreme Court of India in Hari Shankar Jain Vs Sonia Gandhi considered a challenge to Sonia Gandhi's election as a Member of Parliament. The main ground raised by Hari Shankar Jain was that, Sonia being an Italian citizen did not satisfy the pre-requisites for entitlement to registration as a citizen of India. The High Court of Allahabad where Hari Shankar Jain's election petition was originally heard, held that it had no power to deal with the challenge to Sonia's citizenship in an election petition. When this matter was taken on appeal before the Supreme Court, the following questions were considered by the Supreme Court:

        1. Whether a plea that a returned candidate is not a citizen of India can be raised in an election petition before the High Court?

        2. Whether a plea questioning the citizenship of the returned candidate is entertainable by the High Court hearing an election petition in spite of holding a certificate of citizenship granted under Section 5(I) (c) of the Citizenship Act?

        3. Whether on the pleadings of the two election petitioners, a cause of action and a triable issue was raised, which should have been put to trial calling upon the respondent to file her return statement.

        The Supreme Court reversed the decision of the Allahabad High Court and held that a Court trying election disputes had the jurisdiction to pronounce upon the validity of Certificate of Registration of Citizenship. The Supreme Court however noted that the pleadings in the particular case of Hari Shankar Jain Vs Sonia Gandhi were 'bald, vague and baseless'. Thus the Supreme Court missed the opportunity of settling this issue of Sonia's politically and constitutionally controversial citizenship once for all. But unfortunately for the nation and its future survival, the issue of Sonia Gandhi's eligibility to be an MP was neither approved, nor disapproved. Moreover, in fact, the most crucial and relevant question of whether a foreign citizen, politically wangling to become a citizen by registration, is eligible to be a Member of Parliament, was not considered by the Supreme Court.

        The Citizenship Act of 1955 enumerated the following 6 distinct types of Indian citizens:

        1. Citizenship by birth.

        2. Citizenship by descent.

        3. Citizenship by registration.

        4. Citizenship by naturalization.

        5. Citizenship by incorporation of territory.

        6. itizenship Rights conferred on the basis of reciprocity.

        The first 2 categories above were envisaged by the Constitution at the inception. 5th category is only a logical consequence of the expansion of the territory of India - for example, incorporation of Sikkim as Indian Territory and consequently former citizens of the kingdom becoming citizens of India. Categories 3, 4 and 6 were created by the Parliament in 1955. The Assam Accord resulted in the addition of another group to the ranks of Indian Citizens with effect from December 7, 1985. The recent Citizenship (Amendment Act) of 2004 has created another class known as 'Overseas Citizens'. It enables the Central Government to register persons of Indian origin and citizens of 16 specified countries as 'Overseas Citizens'.

        Registration is granted on application and is restricted to 5 specific categories only. We are concerned with 'persons who are or have been married to citizens of India and are ordinarily resident in India and have been so resident for 5 years immediately before making an application for registration'. The Citizenship Act of 1955 provides for deprivation of citizenship of specified categories of citizens, viz: those by naturalization and some categories of the ones by registration. And this can be done by an order of the Executive. Sonia Gandhi belongs to this category of citizenship by registration. It will be clear that her's is the type of citizenship that can be cancelled at any time by an Executive order if the Government so consider it as necessary and expedient in the larger public interest of national security or national survival or other overriding factors. It has been widely reported that Sonia Gandhi continues to retain her Italian Citizenship in addition to her Indian Citizenship by registration under Section 5 of the Indian Citizenship Act of 1955. The expression 'adherence to a foreign state' occurs in Article 102(d) of our Constitution. According to legal experts, 'right in a foreign state' would amount to 'adherence to a foreign state'. Sonia, who enjoys dual citizenship or entitled to be a citizen of another country as a matter of right, legally comes under the category of 'adherence to a foreign state'. Sonia is not a citizen only of India; she just happens to be by registration a citizen also of India.

        In my considered view, any foreigner who has obtained his Citizenship by registration, is debarred from holding any Constitutional office in India for the following reasons:

        a. As a temporary citizen by registration he/she can be removed by an Executive order. We can ill-afford to have a foreigner as Prime Minister or President whose temporary citizenship can be cancelled by a District Collector or Magistrate at a moment's notice.

        b. All the major democracies in the world, particularly having Presidential form of Government have prescribed Natural Citizen born qualification for the highest Constitutional Offices.

        c. The celebrated jurist and former judge of the US Supreme Court, Joseph Story in his monumental commentaries on the Constitution of United States says: 'But the general propriety of the exclusion of foreigners in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office: and interposes a barrier against those corrupt interference of foreign governments in Executive Elections, which have inflicted the most serious evils upon the elective monarchies of Europe, Germany, and even the Pontificate of Rome, are sad but instructive examples of the enduring mischiefs from the source'. Many attempts to amend the US Constitution to remove the 'Natural Citizen' qualification have failed and well known public figures like Henry Kissinger and Madeline Albright have thus been ruled out of consideration for the highest office of US President.

        The current legal position obviously provides unlimited space for mischief for international criminals where even persons with 'conditional' citizenship can head the Government or occupy other constitutional offices. This loophole needs to be plugged once for all at the earliest through a simple amendment of Citizenship Act of 1955, which makes certain public offices out of bounds for 'conditional' citizens like Sonia Gandhi.