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
