On Monday, in one Kiran Gupta vs. State Election Commission, the Patna High Court ruled that a Foreign National doesn't automatically become an Indian Citizen upon marrying the latter and citizenship can't be proved with Voter ID, PAN or Aadhaar Card.
This major judgement has been observed by a banch comprising of Chief Justice Sanjay Karol and Justice S. Kumar wherein they ruled that mere possession of a Pan Card; a Voter ID Card; or an Aadhar Card cannot be taken as a proof of Indian Citizenship adding that relinquishment of Citizenship of Nepal does not confer any right of Indian Citizenship.
CASE FACTS
The appellant Kiran Gupta is aggrieved on dismissal of her writ petition assailing the order of the State Election Commission dated August 30, 2019 by a Single-Judge Bench. She is born and born and brought up in Nepal. After her marriage to one Ashok Prasad Gupta in 2003 she started permanently residing with him in India as his wife.
After settling in India, she, (a) got her name entered into the voters list prepared in the year 2008 for elections to the Assembly of Bihar;
(b)in her name she has (i) an account with a bank in India, (ii) a Pan Card issued by the Income Tax Department, and (iii) an Aadhaar Card;
(c) names of her children born out of the wedlock are registered in India under the Registration of Births and Deaths Act, 1969 and the respective Rules framed thereunder;
(d) pursued her higher education in India;
(e) purchased an immovable property in India, vide sale deed dated 12th December 2017. The sale stands recorded with an entry of mutation in her name for which also she paid fee/rent to the Government of Bihar; and
(g) relinquished her Nepali Citizenship on February 24, 2016.
Against this order of EC, she approached Patna High Court claiming that she voluntarily relinquished Citizenship of Nepal and thus has acquired Indian Citizenship. The Single-Judge bench though dismissed her writ petition holding that, she is not a citizen of India and thus entailed disqualification under the Panchayat Act.
Aggrieved by the order, she filed the present writ appeal.
The Division Bench in the judgement referred to the provisions of the Citizenship Act and various Apex Court pronouncements in the matter of citizenship and observed that mere relinquishment of original Citizenship cannot be perceived as an intent of seeking Indian Citizenship.
It said:
"The Citizenship Act does not provide for a scenario where a person residing in India, upon relinquishing her/his original Citizenship is automatically considered to be a citizen of India. Possibility of a person, though not the appellant, migrating to a third country cannot be ruled out. As such, continuous and uninterrupted stay in India cannot be a factor determining, in anticipation, of a person choosing to exercise right seeking Citizenship under the Citizenship Act."
"The foreign national does not become an Indian citizen on marriage with a citizen under the Act. After the marriage, the foreign national has an option to get registered as an Indian citizen. Even then, the person must fulfil the requirement of residency before they can apply for Indian Citizenship."
Are Voter ID, PAN Card, Aadhar Card enough proof of Citizenship?
On her contention that she possessed various documents such as Voter ID, Aadhaar and PAN Card. On this, the bench observed:
"Mere registration of a person's name in the voter list, ipso facto, does not confer Citizenship. The purpose of the PAN card is to facilitate the payment of taxes to the Indian State, which foreigners may also be required to pay...The eligibility criteria for obtaining an Aadhaar Card is residency in India for a period of 182 days or more, not citizenship. Section 9 of the Aadhaar Act, 2016 clearly states that an Aadhaar number or authentication thereof shall not by itself confer any right of or be proof of Citizenship or domicile of the Aadhaar number holder.Banking regulations under the RBI are silent on bank accounts or documents as proof of Citizenship. For Prevention of Money Laundering, proof of identity and address is required from persons opening bank accounts. However, Citizenship is not a criterion for having a bank account in India. Voter ID cards are not incontrovertible evidence of Indian Citizenship- presumption attached to the issuance of the voter ID card may be challenged by a complaint that states material facts under Section 136 of the Panchayat Act.
CURRENT LEGAL STATUS OF PETITIONER
Commenting on the current legal citizenship status of the appellant, the Court stated:
"However, we cannot ignore the question of the petitioner's current legal status. She relinquished her Nepalese Citizenship in 2016. She does not seem to possess any other nationality. She owns assets, immovable property here. She has continuously resided in India since her marriage and has two children, both resident in India, from the wedlock. These facts together, perhaps, do demonstrate her intention to make India her permanent home/domicile. There is an additional bureaucratic hurdle in registering herself under the Citizenship Act – the documents to be attached for an application under Section 5, per Form III under Rule 5(1)(a) of the Citizenship Rules, 2009, include a copy of valid Foreign Passport and a copy of the valid Residential permit. To reobtain her Nepalese Citizenship, she will have to return to "reside" in Nepal before applying for Citizenship, away from her immediate family in India."
Further the High Court also refused the plea to direct the Central Government to grant her Indian citizenship stating that it will impinge upon the Executive's functions.
It observed:
"In light of the peculiar situation of the petitioner; her ordinary residence and family life in India; and India's international law obligations to prevent statelessness, we direct that upon receipt of the petitioner's application, if so filed, the appropriate authority may consider her application expeditiously, keeping in mind the complications that have emerged in her legal status."
Dismissing the Writ Appeal, the High Court observerd that the State Election Commission was empowered to set aside the election on the specified ground under Section 136(1) of the Panchayat Act of her not being an Indian citizen.
The judgement has been delivered by Division Bench comprising of Chief Justice Sanjay Karol and Justice S. Kumar on 12-10-2020.
Read Judgement Here:
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