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My Delhi High Court Writ Petition
Home | Do You Know Your Sonia? - by Dr. Subramanian Swamy | Supreme Court Judgment - 2001 | My Delhi High Court Writ Petition | Petition for Review of Order dated 9th May, 2006 | Attorney General of India or Attorney of Smt. Gandhi? | Complaint dated 7th May, 2007 against Justice Vijendra Jain and Justice Swatantra Kumar | Reminder dated 7th January 2008, to CJI | Application dated 14th October, 2008 to prosecute Justice Vijendra Jain and Justice Swatantra Kumar

THE DELHI HIGH COURT AT DELHI

(Original Side)

Civil Writ Petition No.            of 2006

(Public Interest Litigation)

 

In the matter of:

Public Interest Litigation;

                                               

In the Matter of:

Application under Article 226 of the Constitution of India for appropriate Writs or directions or orders.

                                               

In the matter of:

Constitutional Validity of the Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 2005;

 

In the matter of:

Article 84(A), 99 and 102 of the Constitution of India;

 

In the matter of:

Fact relating to the Foreign Law of the Article 1 and 13 of the Citizenship Law of Italy read with Part-I, Title-I, Article 14(1) and 16(2) and under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy;

 

In the matter of:

Milap Choraria,

Son of late Shri Deep Chand Choraria

Permanent Address: P.O. Tamkore, District: Jhunjhunu (Rajasthan)

Presently Resident of B-5/52,

Sector-7,

Rohini,

Delhi-110085……….                                 Petitioner

 

                                                                        -Vs-

           

1.                 Union of India,

Through Cabinet Secretary to the Government of India,

Rashtrapati Bhawan,

New Delhi-110004

 

2.                 The Secretary to the Government of India,

The Ministry of Home Affairs,

North Block,

Central Secretariat,

New Delhi - 110 001

 

3.                 The Secretary to the Government of India,

Ministry of Foreign Affairs,

North Block,

New Delhi-110001

 

 

4.                 Indian Embassy in Italy represented by

Indian Ambassador to Italy,

Through Secretary to the Government of India, Ministry of Foreign Affairs,

North Block,

New Delhi-110001

 

5.        The Secretary to the Government of India,

Ministry of Home Affairs,
Foreigners Division,
Jaisalmer House,

26 Man Singh Road,
New Delhi-110 011

 

6.        Smt. Sonia Gandhi,

Wife of Late Shri Rajiv Gandhi,

10, Janpath,

New Delhi-110001

 

7.        Shri Rahul Gandhi,

Son of Late Shri Rajiv Gandhi,

10, Janpath,

New Delhi-110001            ……     RESPONDENTS

 

To,

The Hon’ble Chief Justice of Delhi High Court and

His Companion Justices of Delhi High Court,

The Humble Petition on behalf of the Petitioner above named;

Most Respect Sheweth,

1.        That under the facts and circumstances referred hereinafter, the Petitioner is trying to raise some very important and pertinent issues which have far reaching effects and implications relating to the integrity of the proprietary and sovereignty of the Constitution of India for the kind consideration and adjudication thereon by the Hon’ble High Court: -

(A)      That taking into consideration and compliance thereof regarding the paragraphs 19, 20, 24, 25, 26 and 29 in the Judgment dated 12th September 2001, of the Hon’ble Supreme Court pronounced by a BENCH comprising of Hon’ble CJI, R.C. Lahoti & Doraiswamy Raju JJ., in Appeal (civil) No. 4400 of 2000 along with C.A. No.4405/2000 pronounced by R. C. Lahoti J., reported in the AIR: 2001:SC at pages: 3689 to 3703, and in view of the evidences referred herein, Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 is void and enacted against the integrity of the proprietary and sovereignty of the Constitution of India, allowing thereby to the Respondent No. 6 to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Section 5(2) of Indian Citizenship Act, 1955 by granting Indian Citizenship, under Section 5(1)( c) of Indian Citizenship Act, 1955, thereby further allowing to the Respondent No. 6 to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Article 84(A) and / or Article 99 of the Constitution of India, even her allegiance to the Constitution of Italy is unequivocally and undoubtedly is acknowledged since Respondent No. 6 is not competent to renounce / alienate her Citizenship of Italy which always prevails on the hold-on-basis under Sub-clause (a) of the Clause 1 of Article 1 read with Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy, and Part I under Title I under Article 14(1) and 16(2) under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy;

(B)      That under Article Sub-clause (a) of the Clause 1 of Article 1 of the Citizenship Law of Italy, the Respondent No. 7 being son of Italian Mother at the time of his birth, automatically got Citizenship of Italy with all of inherent constitutional and legal Rights and Duties of the Italian Citizen, being unequivocally and irrevocably protected under the Constitution of Italy and Citizenship Law of Italy. Therefore, the Respondent No. 7, like his mother, is not competent to renounce / alienate his Citizenship of Italy which always prevails on the hold-on-basis under Sub-clause (a) of the Clause 1 of Article 1 read with Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy, and Part I under Title I under Article 14(1) and 16(2) under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy;   

 

(C)      That the Respondents No. 6 and 7 are debarred by Article 102 of the Constitution of India, to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Article 84(A) and 99 of the Constitution of India, since their allegiance to the Constitution of Italy is unequivocally and undoubtedly acknowledged, since they are not competent to renounce / alienate their respective Citizenship of Italy, which irrevocably and unequivocally always prevails and protected on the hold-on-basis under Sub-clause (a) of the Clause 1 of Article 1 read with Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy, and Part I under Title I under Article 14(1) and 16(2) under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy;

(D)PURSUANT TO ITALIAN LAW, IF HOLDER OF ANOTHER CITIZENSHIP, IS ONLY ITALIAN, BECAUSE IN VIEW OF THE LAW IT IS THE ITALAIN CITIZENSHIP THAT PREVAILS OVER ANY OTHER” which is evident from the provisions for Rights and Duties of the Citizen under the Civil Rights under clause (1) of Article 14 [Personal Domicile] of the Constitution of Italy which defines that the “Personal domicile is inviolable”, (meaning thereby that the Permanent Residence (i. e. Italy) of an Italian Citizen is  inviolable) and under clause (2) of Article 16 [Freedom of Movement] defines that the “Every citizen is free to leave the territory of the republic and return to it except for obligations defined by law.”; (meaning thereby that a Italian Citizen always is entitled to recover his citizenship of Italy); and under Clause (1) of the Article 54 [Loyalty to the Constitution] “All citizens have the duty to be loyal to the republic and to observe the constitution and the laws.”, (meaning thereby that an Italian Citizen by birth cannot renounce or alienate his or her Citizenship of Italy thereby cannot renounce or alienate the true faith and allegiance to the Constitution of Italy);  

(E)      That the Respondents No. 1 to 5 under political influence or otherwise completely failed to collect true facts relating to far reaching effects and implications relating to the integrity of the proprietary and sovereignty of the Constitution of India, since the Citizenship of Italy of the Respondents No. 6 and 7 irrevocably, unequivocally and undoubtedly always prevails on the hold-on-basis under Sub-clause (a) of the Clause 1 of Article 1 read with Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy and Part I under Title I under Article 14(1) and 16(2) under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy,  and they are not competent to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Article 84(A) and 99 of the Constitution of India.

 

2.                 That the Petitioner is a law-abiding citizen of India and obedient to his duties fixed under Article 51A of the Constitution of India and is a social-spirited person, and connected with various social organisations including Movement for Accountability to Public (MAP) as its National Convenor, Life Member of Transparency International, India Chapter from its inception. His some of the activities are referred in various Websites, as enumerated in one Website: http://milapchoraria.tripod.com/msp. Personally petitioner has no grievances of any kind against Respondent No. 6 and 7. Petitioner has not filed this instant Writ Petition for any political reasons or gains, since Petitioner has taken a firm decision that he will never get involved in the power politics based on Elections in his rest of lifetime. The object of the Petitioner is to get redressal with regard to a vital point purely relating to the integrity of the proprietary and sovereignty of the Constitution of India. Petitioner has always worked for bringing improvement in the system. He has written about 250 Articles on the issues relating to larger public interests. His Articles were published in all-most all of Hindi Newspapers in India including Nav Bharat Times, Jansatta, Dainik Jagaran, Rajasthan Patrika, Aaj, Sanmarg, Ajit Samachar, Dainik Tribune and also in a few English Newspapers, including Free Press, The Nation and The Central Chronicle. He has written a Book: “A Model of New Constitution for India”, which was submitted before the NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION and has now been registered as a Copyright from the Registrar of the Copyrights. He has also submitted various representations to different authorities with his various suggestions for improvement in the system. He acted for several years as Honorary General Secretary of an Apex Organisation for promoting the cause of Small-scale Industries: ‘Indian Council of Small Industries’ (ICSI) and in that capacity he was taken to sit on the panel in the two Sub-Groups formed for the ‘Marketing’ and ‘Finances’ under the Group for Small Scale Industries constituted by the Government of India for the ‘Ninth Five Year Plan’. Online Membership of the Movement for Accountability to Public (MAP) which as on date is around 142 from India and abroad. Its other Founding Members are amongst Shri Surendra Mohan Ji, the then Chief Spokesperson of Janta Party during the Morarji Desai Government, and renowned Gandhian-Sarvodayee activist Shri Avadhesh Kumar. However, petitioner wants to make it quite clear that filing of the instant Writ Petition is exclusively based on his own initiative in the matter, and has not taken any consent from any of them. Annexed herewith is also a photocopy of the Order dated 29/3/1996 passed by the Hon’ble Supreme Court of India in a Public Interest Litigation filed by the Petitioner and registered as Writ Petition (Civil) No. 151 of 1996 as Annexure “A”, as one of the incidences of the petitioner’s varied public interest activities. In furtherance of his activities in support of the Larger Public Interests, the Petitioner craves for leave to refer some of the documents at the time of hearing, if deemed necessary.   

           

3.        That the instant Writ Petition is changed at times for the unavoidable reasons and circumstances stated here in below:

(1)            That the Petitioner was not conversant with the Procedures of the filing of the Writ Petition before Delhi High Court. On 29th/30th January 2006 he served Notice of the Motion along with True Copy of his the then proposed Writ Petition made an affirmation on 23rd January 2006 by hand and/or through Registered Post, upon each individual Respondent instead of their nominated Counsels. Thereafter on 30th January 2006 Petitioner filed the said Writ Petition before the Receiving Counter of the Registry of the Hon’ble High Court at Delhi under filing No. 4137. The same had to be taken back on 1st February 2006, since on scrutiny it was found to be wanting on various counts, including one that copies of the Writ Petition were not served upon the nominated Counsels. In the meanwhile, on 3rd February 2006 one very important development also surfaced in several Newspapers that on 2nd February 2006 one Writ Petition of Shri Ravindra Kumar, President of Rashtriya Mukti Morcha, relating to Citizenship issue of the Respondent No. 6 herein came up for hearing before the Hon’ble Delhi High Court, wherein as per News Reports appearing in various Newspapers, that the arguments were forwarded by India’s Renowned Lawyer and Additional Solicitor-General of India Ld. Mr. Gopal Subramanium, that the issue of the Citizenship of the Respondent No. 6 is finally decided by the Apex Court as well as by the Division Bench of the Hon’ble Delhi High Court. The Petitioner wanted to be sure he searched and found respective Judgment of the Apex Court dated 12th September 2001, as referred hereinbefore and found that the issue of the Indian Citizenship of the Respondent No. 6 is still open as appears from the Paragraphs 19, 20, 24, 25, 26 and 29 from the aforesaid Judgment contrary to claim of the “State” through Government Pleader the Additional Solicitor-General of India. The Petitioner craves for leave to refer the aforesaid Judgment at the time of hearing.

(2)            That thereafter on 7th February 2006 Petitioner affirmed another Affidavit with another Writ Petition after amendments in earlier Writ Petition and filed the same with the Registry of Hon’ble High Court under Diary No. 831, based on one important document posted on the Internet under the heading: Citizenship Law of Italy in English language print copy of which was obtained by the Petitioner directly through Internet on 28th November 2005 from the following Website Address: http://www.legislationline.org/view.php?document=61521&ref=true. But, on 12th April 2006 when Petitioner was confirming the existence of the aforesaid Web Page from the aforesaid Website, he found that the aforesaid document, which was downloaded on 28th November 2005, for the reasons beat known to the owner of the Website, replaced under another Website Address: http://www.legislationline.org/legislation.php?tid=11&lid=1436. Thereafter the Petitioner felt it prudent to make thorough search through various Websites to get to the bottom of some authentic documents. Thus he could retrieve some such important documents through Internet, without the support of which, the Petitioner felt, it might not be possible for this Hon’ble Court to come to proper decision. As such once again the petitioner had to take back his aforesaid Writ Petition on 17th April 2006 from the High Court Registry to file afresh with suitable amendments in the light of the aforesaid documents as evidences for consideration by the Hon’ble Court; and

(3)            That in view of developments and circumstances and after making close scrutiny of the important documents available now, which till now might not have been placed, before Hon’ble High Court and also not placed before Hon’ble Supremre Court, which  appears from the judgment referred above, the entire Writ Petition required to be corrected and accordingly the names of the Respondents are also modified.

 

4.        That reportedly the Respondent No. 6 was born on 9th December 1946 as Antonia Maino to Stefano and Paola Maino in Orbassano, a town 20 km from Turin, Italy. Her father expired in 1983. Respondent No. 6, while doing an certificate course in English in Cambridge, England, she met Rajiv Gandhi, who later became the Prime Minister of India. They were married in 1968, after which she took up residence in India. The name Sonia was given by her mother-in-law Smt. Indira Gandhi, the then Prime Minister of India. Reportedly, the Respondent No. 6 allegedly renounced her Italy’s Citizenship on 27th April 1983 and thereafter acquired the Indian Citizenship on 30th April 1983.

 

5.        That reportedly, when the Respondent No. 7 was born in the year 1970, his mother Respondent No. 6 unambiguously and exclusively was Citizen of Italy, as till then she had not renounced her Italy’s Citizenship, even the same was recoverable. Therefore, Respondent No. 7 was also automatically got the “Citizenship of Italy by Birth” under Article 1 of the Citizenship Law of Italy. However, both the Respondents No. 6 and 7, even if they might have said to renounce their Citizenship of Italy, they may automatically recover their “Citizenship of Italy”, at any time within one year from the date of their respective declaration in a prescribed manner; being absolutely protected under Article 1 read with clause 1 sub-clause (c) of the Article 13 of the “Citizenship Law of Italy”. Under the circumstances, in any case both the Respondents No. 6 and 7, maximum, could have got dual citizenship of India and Italy, subject to permission of the law.

 

6.        That in the year of 1999 Respondent No. 6 stood as a candidate from Amethi Parliamentary Constituency for election to the Parliament of India and affirmed oath under Article 84(A) of the Third schedule of the Constitution of India during submission of her nomination papers before the Election Officers i.e. the Returning Officer of respective Parliamentary Constituency being the representative of the Election Commission of India and that after being elected as a Member of Parliament she further affirmed oath before  that is the Speaker of the Loksabha, under Article 99 of the Third schedule of the Constitution of India, after her name was referred in the list of the Members elected for the Loksabha to be newly Constituted in the year 1999.

 

7.        That in the year of 2004 Respondent No. 6 stood as a candidate from Rae Bareli Parliamentary Constituency and Respondent No. 7 from Amethi Parliamentary Constituency for the Loksabha and affirmed their respective oaths under Article 84(A) of the Third schedule of the Constitution of India during before the Election Officers i.e. the Returning Officer of respective Parliamentary Constituencies being the representative of the Election Commission of India and that after being elected as a Member of Parliament they further affirmed oath before the Speaker of the Loksabha, under Article 99 of the Third schedule of the Constitution of India, after her name was referred in the list of the Members elected for the Loksabha to be newly Constituted in the year 2004.

 

8.        That, presently, quite a large section of people in India have a sad feeling that by and large the politicians have caused to get the Moral and Ethical values eroded to an all time low level and are playing with them unashamedly for their own political mileage at the cost of the good of the people and seem to be ready to compromise with the interest of the country, amounting to almost its sell off. Had the Judiciary and Media would not been active, then God knows what would have happened to the integrity of the sovereignty and proprietary of the Constitution of India?

 

9.        That as per their own claim that they are not hankering after power, rather are more keen to serve the country and its people, under the present law of land, had the Respondents No. 6 and 7 restricted their political forays only just to the leadership of their political party, then no one would have been able to raise any objection to the same. However, since they decided to choose to enter in to electoral fray of power politics by using their respective Indian Citizenship, to acquire Constitutional Offices including the Membership of Parliament, therefore, this instant Writ Petition became inevitable to protect and safeguard the very integrity of the sovereignty and proprietary of the Constitution of India. Rather it is expected that this fact ought to have been brought to light voluntarily from a person no less than the status of a commanding leader of the biggest political Party in India. The Respondent No. 6 ought to have informed the People of India about the true and correct legal position and facts relating to the Citizenship Law under the Constitution of Italy. In that case her reputation and esteem in public eye would have attained newer heights many fold. But, perhaps, she could not muster enough courage to disclose the true legal position as she was aware to the best of her knowledge that even though she has renounced her Italy’s Citizenship, in order to obtain the Indian Citizenship, PURSUANT TO ITALIAN LAW, IF HOLDER OF ANOTHER CITIZENSHIP, IS ONLY ITALIAN, BECAUSE IN VIEW OF THE LAW IT IS THE ITALAIN CITIZENSHIP THAT PREVAILS OVER ANY OTHER” unequivocally and undoubtedly she is not competent to renounce her Citizenship of Italy permanently and forever, as her Citizenship Right of Italy always prevails on the hold-on basis. In support of what has been stated above, enclosed is the photocopy of a document under heading “Citizenship”, which has been obtained from the Website of the Consulate General of the Italy, at Chicago, USA, as Annexure “B”. 

 

10.      That the English Translation of the Constitution of Italy translated by Prof. Carlo Fusaro, Department of Public Law, Faculty of Political Sciences 'C. Alfier', University of Florence, Via delle Pandette 35, 50127 Florence, ITALY, is available on International important Website: “International Constitution Law” at the following Website address: http://www.oefre.unibe.ch/law/icl/it00000_.html. The Website is owned and run by University of Bern, Switzerland. Photocopy of the English version of the Constitution of Italy translated from Italian language by Prof. Carlo Fusaro, is annexed herewith and marked as Annexure “C”. From the quotation referred in the Website of the Italian Embassy in Chicago, USA, as aforesaid it is unequivocally and undoubtedly evident that: PURSUANT TO ITALIAN LAW, IF HOLDER OF ANOTHER CITIZENSHIP, IS ONLY ITALIAN, BECAUSE IN VIEW OF THE LAW IT IS THE ITALAIN CITIZENSHIP THAT PREVAILS OVER ANY OTHER”, as the same is based on the following provision provided in the Constitution of Italy and also provided in the Citizenship Law of Italy as referred after this paragraph:

(1).     That Clause (1) of Article 14 [Personal Domicile] provides that “Personal domicile is inviolable.”.    

(2)            That Clause (2) under Article 16 [Freedom of Movement] confirms the Constitutional Rights of “Every citizen is free to leave the territory of the republic and return to it except for obligations defined by law.”

(3)      That Clause (1) of the Article 54 [Loyalty to the Constitution] provides that “All citizens have the duty to be loyal to the republic and to observe the constitution and the laws.”

(4 )     That Clause (3) of Article 48 [Voting Rights] the “Title IV Political Rights law defines conditions under which the citizens residing abroad effectively exercise their electoral right. To this end, a constituency of Italians abroad is established for the election of the Chambers, to which a fixed number of seats is assigned by constitutional law in accordance with criteria determined by law.”

(5)      That Article 56 [The House of Representatives] provides under Clause (1) The house of representatives is elected by universal and direct suffrage. Under Clause (2) The number of representatives is six hundred and thirty, of which twelve are elected by the constituency of Italians abroad while Article 57 [The Senate] provides that under Clause (1) The senate is elected on a regional basis except for the seats assigned to the constituency of Italians abroad. (2) Three hundred and fifteen senators are elected, of which six are elected by the constituency of Italians abroad.

 

11.      That Petitioner also got another OFFICIAL copy of the “Citizenship Law of Italy’ in the “ITALIAN” Language from Official Website of the Government of Italy, through email message received on 14th April 2006 from Stampa.telaviv@esteri.it from the Press Department of the Office of the Ambassador of Italy in Tel Aviv, Israel informing thereby that the address of the Official Website of the Italian Government for Citizenship Law of Italy is http://www.giustizia.it/cassazione/leggi/l91_92.html. This law enacted by the Parliament of Italy, in conformity with the Constitution of Italy. Photocopy of the Print copy of the aforesaid Official document: “Citizenship law of Italy” in Italian Language as well as Translated copy in English Language (obtained from replaced Website Address: http://www.legislationline.org/legislation.php?tid=11&lid=1436 ) and Email correspondence between the Petitioner and the Office of the Italy’s Embassy in Tel Aviv are annexed herewith and marked as Annexure  “D” “E” and “F” respectively. 

 

12.      That from the aforesaid English version of the Citizenship Law of Italy facts revealed as under:

(1)      Under Sub-clause (a) of the Clause 1 of Article 1 of the Citizenship Law of Italy, the Citizen by birth is defined that: “the child of a father or a mother, who are Italian Citizens.”

(2)      Further under Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy provides that “He who lost the citizenship shall recover it: if he declares he wants to recover it and he resided or he resides in the territory of Republic, within one year from the declaration;”.

 

13.      That besides the aforesaid documents, one common document is also available in the majority of the Websites of the Embassies or Consulate General of Italy working in different Countries, under heading “Consular services”: “Citizenship”. From each such Websites in the 1st Page it is categorically referred that the “WAYS TO BECOME AN ITALIAN CITIZEN”: “AUTOMATICALLY”: “1. by having an Italian parent(s); 2. by being born in Italy:” and further at 4th page: “GETTING ITALIAN CITIZENSHIP BACK ONCE LOST Italian citizenship can be reinstated once it is lost: Automatically One year from the date in which residence is established in Italy, except in case of renunciation within that same period.” Consulate General of Italy, Vancouver in its Website under subject matter “ACQUISITION OF ITALIAN CITIZENSHIP THROUGH RESIDENCY” more fully described that an ex-Italian citizen who lost his citizenship can recover it within 1 year from his/her residency in Italy. In the aforesaid document under another subject: “ACQUISITION OF ITALIAN CITIZENSHIP: RE-ACQUISITION OF CITIZENSHIP” also mentioned in clear terms that “anyone who lost Italian citizenship before August 16, 1992, due to voluntary acquisition of another citizenship, could have re-acquired, while living abroad, by signing an official statement at the Consulate before December 31, 1997. Re-acquisition became effective on the day following the signing of the statement if all the required documentation was submitted. If on the other hand, the application was incomplete, it was kept on hold pending presentation of additional documents. Therefore, anyone who signed a statement of re-acquisition, but did not submit all required documents, cannot yet be considered Italian and should contact the Consulate in order to complete the application, or indicate in writing his/her intention to drop it. However, anyone who did not take advantage of this opportunity, can re-acquire Italian citizenship by residing for one year in Italy.” Photocopies of aforesaid pages from the aforesaid Websites of the Embassies of Italy in (1) New Delhi, (2) Tel Aviv, (3) Washington, (4) Algiers and (5) Vancouver are collectively annexed herewith and marked as Annexure “G”, “H”, “I”, “J”, and “K” respectively.

14.      That on 14th April 2006 the Petitioner also sent Email to the Italy’s Prime Minister’s Office and other Authorities of the Government of Italy to confirm whether respective English version of the “Constitution of Italy” as well as “Citizenship Law of Italy” as available in different Websites are correct or not? Photocopy of aforesaid Email is annexed herewith and marked as Annexure “L”.  Till filing of the Writ Petition he is not in receipt of any response. However, Petitioner craves leave to refer that if in the meantime, any response from the Government of Italy is received in response to the aforesaid Email. In such an eventuality, he will immediately place the same before the Hon’ble High Court.

15.      That on the other hand, the Consulate of Italian Embassy in New Delhi in response to the Petitioners request dated 13th April 2006 to provide an authentic version of English Translation of the Citizenship Law of Italy, in their Email reply dated 20th April 2006 has categorically stated that as per the Constitution of Italy they cannot provide an English version of the same. However, they have suggested that a visit to the Website: www.lawbookfinder.com/books/ could help in eventually finding some Books on the subject. Photocopy of the aforesaid Email is annexed herewith and marked as Annexure “M”.  

16.      That in the meantime the Petitioner also sent one Email message on 21st April 2006 to the Respondent No. 5 the Indian Embassy in Italy to inform the Petitioner about the Official Web Address from which English as well as Italian version of the Constitution of Italy and Citizenship Law of Italy could be downloaded. Indian Embassy in Italy is also informed about the aforesaid Web Addresses from which English version of the Constitution of Italy and Citizenship Law of Italy, were referred to in this Writ Petition. Photocopy of the aforesaid Email to Indian Embassy in Italy is also annexed herewith and marked as Annexure “N”. Till filing of the instant Writ Petition, the Petitioner has not received any response from Indian Embassy in Italy, as the Indian Embassy in Italy is not considering the protection of the  integrity of the proprietary and sovereignty of the Constitution of India as one of their national duty.

17.      That the Respondent No. 6 also affirmed an Affidavit before the Returning Officer of the Rae Bareily Parliamentary Constituency, wherein she has affirmed that she have one ancestral house in Italy, which can be substantiated from the Website of the Election Commission of India itself. The ownership of the House, which she claims to have in Italy, devolves on her by inheritance. This also confirms that the allegiance to the Constitution of Italy always prevails upon her under Clause (1) of Article 14 [Personal Domicile] which provides that “Personal domicile is inviolable.”.            

18.      That in view of the aforesaid documents in English as aforesaid available under heading: “Consular Services” ; “Citizenship” downloaded from the Websites of the various Embassies of the Italy, and the English translation of the Constitution of Italy, made by a Italian legal/academic Luminary Prof. Carlo Fusaro, Department of Public Law, Faculty of Political Sciences, University of Florence, ITALY, and posted in a word famous Website of the International Constitutional Law, owned by the University of Bern, Switzerland, and in view of the English translation of the Citizenship Law of Italy, which is posted in a Website of the International Organisation named Democratic Institution and Human Rights, Warsaw, and in any case, if any contradiction could have been transpired by the Office of the Prime Minister of Italy or any other respective Authority from Italy or even by the Indian Embassy in Italy from the aforesaid Translated English Copies of the Constitution of Italy and Citizenship Law of Italy, they must have reacted promptly. Several days have passed from the date of the aforesaid Email messages, but no reaction has been received so far.  There is sufficient ground for considering this as true English translation of the “Constitution of Italy” and the “Citizenship Law of Italy”, by the Hon’ble High Court, till authentic contradiction is not received from any one of the Respondents.       

19.      That from the aforesaid provision of the Constitution of Italy and Citizenship Law of Italy, it is amply clear that Citizenship of Italy of the Respondent No. 6 and 7 is always in existence on the hold-on basis, which they can recover at any time within one year from their respective declaration under Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy, thus their allegiance to the Constitution of Italy unequivocally and undoubtedly acknowledged and always prevails.  

20.      That under the present law of the Indian Citizenship Act, 1955 even if the Respondents No. 6  and 7 could have been granted dual Citizenship in view of Section 7B of the Indian Citizenship Act-1955 the Respondents should not have been qualified to contest election as a candidate for the Office of the President; Vice-President; a member of the House of the People or of the Council of States, a member of the Legislative Assembly or a Legislative Council, or by way to be appointed as a Judge of the Supreme Court; or a Judge of the High Court. The petitioner craves leave to refer aforesaid provisions of Indian Citizenship Act, 1955 (as Amended) at the time of hearing of the Writ Petition, if necessary.

QUESTION OF LAW

(1)      That taking into consideration and compliance thereof regarding the paragraphs 19, 20, 24, 25, 26 and 29 in the Judgment dated 12th September 2001, of the Hon’ble Supreme Court pronounced by a BENCH comprising of Hon’ble CJI, R.C. Lahoti & Doraiswamy Raju JJ., in Appeal (civil) No. 4400 of 2000 along with C.A. No.4405/2000 pronounced by R. C. Lahoti J., reported in the AIR: 2001:SC at pages: 3689 to 3703, and in view of the evidences referred herein, Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 is constitutionally void, as these provisions were enacted against the integrity of the proprietary and sovereignty of the Constitution of India, allowing thereby to the Respondent No. 6 to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Section 5(2) of Indian Citizenship Act, 1955 by granting Indian Citizenship under Section 5(1)( c) of Indian Citizenship Act, 1955, since she is not competent to renounce / alienate her Citizenship of Italy, which irrevocably and unequivocally always prevails, without any doubts, on the hold-on-basis under Sub-clause (a) of the Clause 1 of Article 1 of the Citizenship Law of Italy, Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy and pursuant to Part I under Title I under Article 14(1) and 16(2) under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy;

(2)      That the Respondent No. 7 debarred by Article 102 of the Constitution of India, to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Article 84(A) and 99 of the Constitution of India, since his allegiance to the Constitution of Italy is unequivocally and undoubtedly acknowledged, since at time of his birth, his Mother was Italian Citizen, thus under Sub-clause (a) of the Clause 1 of Article 1 of the Citizenship Law of Italy, he automatically got Citizenship of Italy, with all inherent Rights and Duties of the Italian Citizen by birth, and irrevocably and unequivocally protected under the Constitution of Italy and Citizenship Law of Italy. Therefore, the Respondent No. 7, likewise his mother, too not competent to renounce or alienate his Citizenship of Italy, which irrevocably and unequivocally always prevails on the hold-on-basis;   

(3)      That the Respondents No. 6 and 7 are debarred by Article 102 of the Constitution of India, to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Article 84(A) and 99 of the Constitution of India, since their allegiance to the Constitution of Italy is unequivocally and undoubtedly acknowledged, since they are not competent to renounce / alienate their Citizenship of Italy which always and unequivocally prevails and protected on the hold-on-basis under Sub-clause (a) of the Clause 1 of Article 1 of the Citizenship Law of Italy, Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy and Part I under Title I under Article 14(1) and 16(2) under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy;

(4)      That the Respondents No. 1 to 5 under political influence or otherwise completely failed to perform their Constitutional duties to collect true facts relating to far reaching effects and implications to protect the integrity of the proprietary and sovereignty of the Constitution of India from the Citizenship Law of Italy and the Constitution of Italy;

(5)      That the Respondent No. 6 and 7 cannot bear true faith and allegiance to the Constitution of India since their allegiance to the Constitution of Italy is acknowledged by their Absolute “Right to Recover their respective Citizenship of Italy” under Article 1 read with Article 13 of the Citizenship Law of Italy; and

(6)      Oath taken by the Respondent No. 6 and / or 7 during and after the General Elections of 1999 and / or 2004 or even in the recent by-election for their candidatures for respective parliamentary Constituencies were not in conformity with the Article 84 (A) and 99 of the Third Schedule of the Constitution of India as they cannot bear true faith and allegiance to the Constitution of India free from allegiance to the Constitution of Italy, as a result their Oath was void and bad in law.

 

21.      That in view of the facts and great importance of the matter concerned in the larger public interest and protecting the integrity of the sovereignty of the proprietary of the Constitution of India, the petitioner is filing instant Public Interest Litigation interalia amongst the following,

GROUNDS:

A.               BECAUSE, Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 is void, as under these very unconstitutional provisions, the Respondent No. 6 is granted Certificate of Indian Citizenship at the cost of Integrity of the sovereignty of the proprietary of the Constitution of India allowing her to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Section 5(2) of the Indian Citizenship Act, 1955 thereby further allowed to the Respondent No. 6 to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Article 84(A) and 99 of the Constitution of India, since their allegiance to the Constitution of Italy governed by the Citizenship Law of the Italy irrevocably and unequivocally always prevails and undoubtedly acknowledged; 

B.               BECAUSE, the Respondents No. 1 to 5 failed to protect integrity of the sovereignty and proprietary of the Constitution of India by not collecting true material facts relating to Citizenship Law of Italy and Constitution of Italy and further failed to restrain the Respondent No. 6 and 7 from solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Article 84(A) and 99 of the Constitution of India, since their allegiance to the Constitution of Italy governed by the Citizenship Law of the Italy always prevails;

C.               BECAUSE, when Respondent No. 7 was born to his Mother: Respondent No. 6, she was definitely and without any ambiguity a citizen of Italy. Therefore, under Article 1 of the “Citizenship Law of Italy” Respondent No. 7 also benefited and automatically got citizenship of Italy by birth besides his Indian Citizenship by birth, thus amounting to dual citizenship of Italy and India;

D.               BECAUSE Respondents No. 6 and 7 cannot renounce or alienate their allegiance to the Constitution of Italy governed by their inherent “Right to Recover the Citizenship of Italy by Birth” under Article 1 and 13 of the “Citizenship law of the Italy”, even after renouncing their Citizenship of Italy and acquiring Indian Citizenship, at best the situation emerges is that they got dual Citizenship of Italy and India, and thus their allegiance amounts to a dual allegiance to the Constitution of Italy as well as to that of India.

E.               BECAUSE, Respondents No. 6 and 7 always have the inalienable inherent right to recover their Italy’s Citizenship at any time under clause 1 sub-clause (c) of the Article 13 of the “Citizenship Law of Italy”, within one year from the date of their respective declaration in the prescribed manner;

F.                BECAUSE, “TRUE” faith and allegiance to the Constitution of India has to be completely free from allegiance to the Constitution of any other country, the affirmation made by the Respondents No. 6 and 7 taking oath as “TRUE” faith and allegiance to the Constitution of India was not free from the acknowledgement of the allegiance to the Constitution of Italy governed by the Citizenship Law of Italy thus affirmation of the oaths by them under Article 84 (A) or Article 99 of the Third Schedule of the Constitution of India was debarred by Article 102 of the Constitution of India.

 

22.      The petitioner submits that he has not filed any similar petition in this Hon’ble Court, or in any other High Court or Hon’ble Supreme Court of India.

 

23.      The petitioner also submits that he has no other efficacious alternative remedy except to approach this Hon’ble Court by way of the present Writ Petition under Article 226 of the Constitution of India as Public Interest Litigation.

 

24.      In view of the aforesaid facts, documents and premises, the petitioner most humbly prays that this Hon’ble Court, in the Larger Public Interest, may be pleased to issue writ of Certiorari and / or Quo Warranto or any other appropriate Writ or Writs, directions, orders, declaration or otherwise: - 

a)        Issue a writ of Certiorari to declare Section 5(1)(c) read with Section 5(2) of the Citizenship Act, 1955, Ultra vires of the Constitution of India, as it unconstitutionally allowed to grant and confirm the Citizenship of India to the Respondent No. 6 contrary to the facts that her allegiance to the Constitution of Italy is irrevocably, unequivocally and undoubtedly acknowledged and always prevails under Sub-clause (a) of the Clause 1 of Article 1 read with Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy read with Part I under Title I under Article 14(1) and 16(2) under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy;

b)        ISSUE a writ of Certiorari  to declare that the Respondents No. 6 and 7 are disqualified to be member of either House of the Parliament pursuant to Article 102 of the Constitution of India as their allegiance to the Constitution of Italy irrevocably and unequivocally acknowledged and always prevails beyond any doubt under Sub-clause (a) of the Clause 1 of Article 1 read with Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy read with Part I under Title I under Article 14(1) and 16(2) under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy;

 

 

 

c)        ISSUE a writ of Certiorari to declare that the Respondents No. 6 and 7 are not competent to solemnly affirm (or swear) to bear true faith and allegiance to the Constitution of India under Third Schedule under Article 84 (A) and Article 99 of the Constitution of India since their allegiance to the Constitution of Italy irrevocably, unequivocally and undoubtedly always prevails since they cannot renounce their “Absolute Right to Recover Citizenship of Italy”, even if they might have renounced their respective Citizenship of Italy, such renouncement does not stand in view of the legal position of Legal Right of “Italian Citizenship by birth” protected under the mandatory provision of Sub-clause (a) of the Clause 1 of Article 1 read with Sub-clause (c) of the Clause 1 of Article 13 of the Citizenship Law of Italy read with Part I under Title I under Article 14(1) and 16(2) under Part I, Title IV, Article 48(3) and 54(1) of the constitution of Italy, as they can recover it at any time just within one year from the time of their respective declaration;

d)        PASS appropriate direction or orders in relation to consequential effects of the Prayers a) to c) as aforesaid; 

e)        ISSUE notices upon all the Respondents to show cause, why prayers of the Petitioner are not allowed?  

f)         FOR further order or orders or declaration or Writ or Writs as Hon’ble Court deems fit and appropriate for the ends of justice; and

g)        ALLOW the present Public Interest Litigation with costs.

 

FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL AS IN DUTY BOUND, EVER PRAY.

 

 

New Delhi                                            Filed by (MILAP CHORARIA)

Filed 28th April, 2006                                      Petitioner-in-person

 

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TRUTH SHALL PREVAIL