Can an Indian citizen of foreign origin hold a constitutional post?
The Supreme Court on Monday issued notices to the Centre and the Election Commission on a petition filed by Rashtriya Mukti Morcha seeking to debar persons of foreign origin from holding Constitutional posts.
A Bench of Chief Justice K G Balakrishnan and Justice R V Raveendran asked the Centre and the EC to respond to the petition filed by the RMM, which challenged the November 24, 2006 order of the Delhi High Court dismissing its PIL in this regard.
Observing that the petition raised an important constitutional issue, the Bench clarified that the notice was limited to the Constitutional issue whether an Indian citizen of foreign origin could hold constitutional posts.
Though Sonia Gandhi and the Congress were not parties to the case, the PIL basically targeted them. The NDA has been raising the issue of foreign origin persons holding Constitutional posts to corner the Congress. With the apex court-taking cognizance of the issue, opposition BJP and Samajwadi Party were bound to raise it in the ongoing assembly elections in Uttar Pradesh.
On behalf of the petitioner, senior counsel PN Lekhi argued that nowhere in the world a foreign origin person is allowed to occupy constitutional posts and the High Court erred in holding otherwise.
As Lekhi named Sonia Gandhi, the Bench objected to it saying she was not a party to the case. However, Lekhi said it was necessary to name her to explain the background of the case. He referred to the then President K R Narayan inviting Congress President Sonia Gandhi to form government at the Centre following the collapse of the coalition headed by BJP leader Atal Bihari Vajpayee after 13 months in office. It could not have been done, he said. Acccording to Lekhi, the President did not administer her oath of office as Prime Minister in 2004 because his case was pending before the High Court.
The petitioner submitted that there was a universally recognised constitutional convention that no foreign born citizen shall be allowed to hold political or public executive office and it has to be given effect to in India as well.
The CJI, however, pointed out that India has a written Constitution and there was no such written provision in it. Despite repeated requests from Lekhi, the court did not issued notice to the Centre and EC on the issue of de-recognising a political party having a citizen of foreign origin as president.
The Delhi High Court had dismissed the RMM petition saying, “there is no force in the argument…that a foreign born person is no entitled to hold a public office and the political party in which one is a member or an office bearer is liable to be de-registered.”
“If one has to follow the liberal and humane concept of ancient Indian philosophy, then what our scriptures have taught us is “Vasudhaiv Kutumbkam”, i.e., the whole planet is a family.
Giving the example of the Unites States where no foreign born citizen could be allowed to hold the post of President, the petitioner had in its 1999 PIL contended that foreign born citizens could only enjoy civil rights and not political rights in India.
But the HC had said “…if the founding fathers of the Constitution have not taken into consideration the concept of a natural born person for according citizenship, then by no purposeful interpretation this court will hold that a foreign born person is entitled (only) to civil rights and no other rights."