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Citizenship of Sonia-Rahul Gandhi?

Written Arguments in support of Restoration Petition
Home | Order Dt. 9th May 2006 | Application U/S 151 of CPC | Written Arguments in support of Restoration Petition | Synopsis of the facts | Main Writ Petition | 2001-SC Judgment on Sonia Gandhi

IN THE DELHI HIGH COURT AT DELHI

(Original Side)

Misc. Petition No.            of 2006
                     

                                                In the matter of:

Writ Petition (Civil) No. 7790 of 2006

 

In the Matter of:

Application under Section 151 of Civil Procedure Code for permission to petitioner to plead his case interalia on the basis of the Written Argument annexed herewith.  

 

In the matter of:

Milap Choraria               ……….                          Petitioner

 

                                                                        -Vs-

           

Union of India & Others   ……     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 Petitioner Humbly submits that he being a much less educated person, representing the vast majority of Indians, and since in any Indian Court on 9th May 2006 he entered after 10 Years, and he never gave any lecture or talk as a speaker, therefore there could be some linguistic communication gap between the Petitioner and the Hon’ble High Court or he might have failed to place the correct direction of 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 in relation to the Constitutional Validity of the Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 2005, and dispute relating to Right to Italian Citizenship of the Respondents No. 6 and 7.  

2.                   The petitioner as submitted detailed facts in his another Application under section 151 of the Civil Procedure Code and Hon’ble High Court can satisfy from such facts that he is always acted in the larger public interests and never can file any Vexatious litigation. 

3.                  Therefore, in the larger public interests and for ends of justice the Petitioner Humbly prays before Hon’ble High Court as follows:            

1)                  Petitioner should be allowed to place his written arguments annexed herewith in support of his application under section 151 of the Civil Procedure Code filed for restoration of the Writ Petition (Civil) No. 7790 of 2006, recalling the Order dated 9th May 22006 passed in the aforesaid Writ Petition; and

2)                  Pass any further order or orders as may be Hon’ble High Court deem fit and proper for the ends of justice.

 

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

 

 

New Delhi                                                                      Filed by (MILAP CHORARIA)

Filed 24th May, 2006                                                       Petitioner-in-person

                                                           

 

 


IN THE DELHI HIGH COURT AT DELHI

(Original Side)

Misc. Petition No.            of 2006
                     
In the matter of:
Writ Petition (Civil) No. 7790 of 2006

 

In the matter of:

Milap Choraria           ……….                             Petitioner

 

                                                         -Vs-

         

Union of India & Others       ……     RESPONDENTS

 

Written Arguments on behalf of the Petitioner-in-person above named;

 

1.         That the Petitioner filed an application under section 151 of the Civil Procedure Code for the restoration of Writ Petition (Civil) No. 7790 of 2006 after recalling the order dated 9th May 2006 passed by the Hon’ble High Court for the ends of justice and on the basis of the issues and grounds which were not considered earlier amongst the following;

                  GROUNDS:

  1. No Court in India can take judicial notice of any foreign law including Italian Law; and
  2. The Petitioner never can file a vexatious litigation.     

 

2.         That the aforesaid Writ Petition was filed by the Petitioner in complete conformity with the aforesaid 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 in relation to the Constitutional Validity of the Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 2005 and Citizenship Issue of the Respondent No. 6 and 7. However the aforesaid Writ Petition was dismissed on 9th May 2006. Photocopy of the Order passed by the Hon’ble High Court is annexed with the aforesaid application and referred to as Annexure “A”.

 

3.         That in the aforesaid Supreme Court Judgment it was held in clear terms that no Court in India can take judicial notice of a foreign Law, including Italian Law. While Hon’ble High Court took the Judicial Notice of the foreign law i. e. Italian Law in this matter, by describing the differences between Indian and Italian Citizenship laws and impact upon the Italian Law from the history of fascist invasion. The Petitioner humbly submits that the aforesaid Writ Petition (Civil) No. 7790 of 2006 is based in complete conformity with the aforesaid Supreme Court Judgment and fulfills the requirements for examination and adjudication of the referred averment and pleading with supporting adducing evidences to prove interalia following material facts in accordance with the Civil Procedure Code and Indian Evidence Act:

1.   That the Respondent No. 6 was born in Italy as an Italian Citizen by Birth;

2.   That when the Respondent No. 7 was born in India his mother was an Italian Citizen, and as such he was not Indian Citizen by birth but was an Italian Citizen by birth;

3.   That according to the Citizenship Law of Italy and the Constitution of Italy, the Respondents No. 6 and 7 never can renounce their “Right to Citizenship of Italy, as it undoubtedly prevails permanently, irrevocably, unequivocally and forever, and even if they might have renounced their Citizenship of Italy, they can always recover at any time on the expiry of one year from the date of their declaration in the prescribed manner;

4.   That the allegiance of the Respondents No. 6 and 7 to the Constitution of Italy are acknowledged and undoubtedly prevails permanently, irrevocably, unequivocally and forever. Hence, under such circumstances, they deserve to be disqualified to be chosen as and for being a member of either House of Parliament under Article 102 of the Constitution of India.

5.   That Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 is enacted in violation of the Scheme of Indian Citizenship under which no person having a citizenship of any other country and also granted the Citizenship of India can hold any constitutional office.  While, the enactment of Section 5(1)(C) read with Section 5(2) of the Indian Citizenship Act, contrarily opens the doors to hold the Constitutional office in violation of the provisions of the Article 102 of the Constitution of India in spite of the fact that allegiance to the Constitution of Italy of the Respondent No. 6 are acknowledged and which undoubtedly prevails permanently, irrevocably, unequivocally and forever, even if they might have renounced their Citizenship of Italy, which is always recoverable at any time on the expiry of one year from the date of their declaration to the effect in the prescribed manner. Thus, the so-called renouncement is always and permanently only temporary in character and nature and never final;

6.   That Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 is enacted overriding the provision of the Article 102 of the Constitution of India granting the Citizenship of India to the Respondent No. 6 and allowed her to contest the election for Parliament and opens the doors to hold any Constitutional office in violation of the Constitutional Proprietary.

 

4.         That in conformity with the aforesaid Hon’ble Supreme Court Judgment following ISSUES are required to be examined and adjudicated by the Hon’ble High Court, under Section 151 of the Civil Procedure Code for the ends of Justice:

1.         Can any Court in India take judicial notice of a foreign Law as taken by the Hon’ble Delhi High Court at the time of dismissing the Writ Petition, by describing differences between Indian and Italian law?

2.         In consideration of the foreign law, as a matter of fact, whether Petitioner prima-facie did not satisfy the requirement of pleading the material facts in his Writ Petition relating to the acknowledgement of the allegiance of the Respondents No. 6 and 7 to the Constitution of Italy which always prevails forever, permanently, irrevocably, unequivocally and undoubtedly?

3.         According to the averment made in the Writ Petition if the allegiance of the Respondent No. 6 and 7 to the Constitution of Italy is acknowledged, in such a case are they should not be disqualified for being choosen as, and for being member of either House of Parliament under Article 102 of the Constitution of India?

4.         In accordance with the averment made and cause of actions disclosed, is the matter of fact pleaded in the Writ Petition, did not satisfy that Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 runs contrary and is in violation of the Scheme of Indian Citizenship under which no Indian Citizen, having also a citizenship of any other country, can hold any constitutional office, while enactment of Section 5(1)(C) read with Section 5(2) of the Indian Citizenship Act opens the door to hold the Constitutional office in violation of the Constitutional Proprietary and bar imposed by Article 102 of the Constitution of India?

5.         In view of the facts stated in the Application filed for restoration of the Writ Petition (Civil) No. 7790 of 2006 can the Petitioner file a vexatious litigation?

 

ISSUE:  1.         Can any Court in India take a ‘Judicial Notice’ of a foreign Law as it is taken by this Hon’ble High Court at the time of dismissing the Writ Petition?

 

According to observations made in the aforesaid Judgment under paragraph 26 and 27 as appeared in AIR: 2001:SC at pages: 3700 and 3701 the Hon’ble Supreme Court decided that “Italian law is a foreign law so far as the courts in India are concerned and foreign laws are usually matters of evidence requiring proof as questions of fact. When Hon’ble High Court decided the fate of the Writ Petition after having taken ‘Judicial Notice’ of the foreign law by describing the differences between the Indian Law and Italian Law and by observing that ‘the Petitioner could not understand the differences between Indian Citizenship Law and Italian Citizenship Law’ and further took ‘Judicial Notice’ by having observed by going in detail at length with regard to the History of the fascist invasion and its effects upon the Italian Law. The Petitioner of the instant Writ Petition pleaded in his averment the adducing evidences which required to be proved as a question of fact by the Respondents after joining in the pleadings that the Respondents No. 6 and 7 are not Citizen of Italy by birth and that they at all can renounce or did renounced their right to Citizenship of Italy permanently and forever and that they have no right to Citizenship of Italy under Italian Law, and further that they in no manner have any allegiance to the Constitution of Italy only then after satisfying itself on these issues the Hon’ble High Court should have dismissed the Writ Petition. While, the Petitioner disclosed the cause of action in clear terms by pleading the averments and adducing evidences relating to the matter of fact that the Respondents No. 6 and 7 are debarred by Article 102 of the Constitution of India since their allegiance to the Constitution of Italy irrevocably, unequivocally and undisputedly always prevails and acknowledged, which they cannot renounce.

 

2.         ISSUE: In consideration of the foreign law, as the question relates to a matter of fact, whether Petitioner prima-facie did not satisfy the requirement of pleading the material facts in his Writ Petition relating to the acknowledgement of the allegiance of the Respondents No. 6 and 7 to the Constitution of Italy which always prevails forever, permanently, irrevocably, unequivocally and undoubtedly?

 

According to observations made in the paragraph 14 and 23 of the aforesaid Judgment referred at AIR: 2001:SC at pages: 3699/3700 the Hon’ble Supreme Court decided that no courts in India can take Judicial Notice of any foreign law but should adjudicate upon a foreign law as question of the matter of fact and should be adjudicated in accordance with Civil Procedure Code and Indian Evidence Act.

 

In the paragraph 14 of the aforesaid Judgment Hon’ble Supreme Court interalia observed that “Article 84 of the Constitution provides inter alia that a person shall not be qualified to be chosen to fill a seat in Parliament unless he is a citizen of India. Article 102 of the Constitution provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament inter alia if he is not a citizen of India or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State. And further in paragraph 23 of the aforesaid Judgment Hon’ble Supreme Court interalia decided that it is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings.”

 

That contrary to the pleadings made by the aforesaid Petitioners of the Election Petitions, as observed by the Hon’ble Supreme Court in its aforesaid Judgment, the Petitioner herein referred the complete text of the Italian Citizenship Act, both from the Government of Italy in Italian Language and English copy translated and available in the Website of the recognised International Organisations. The Petitioner is having the entire text of the Constitution of Italy in Italian language from the Government Website, and referred its English Copy translated by a renowned Italian Professor and law faculty, working as Professor in an Italian University, which should be decided by the Hon’ble High Court in accordance with the provisions of the Civil Procedure Code and Indian Evidence Act. Besides he also pleaded by adducing evidences obtained from the Websites of different Italian Embassies to prove that: 

(1)        That under the Italian Law the Respondents No. 6 and 7 are Italian Citizen by birth and under the Constitution of Italy and Citizenship Law of Italy they never can permanently renounce their right to Citizenship of Italy, and even if they might have renounced the Citizenship of Italy, which under the Italian Law is subject to various legal and Constitutional conditions, under which their Allegiance to the Constitution of Italy irrevocably, unequivocally and undisputedly always prevails and acknowledged, which they cannot renounce.

(2)        The Scheme of Indian Citizenship is amply clear that whenever allegiance to the Constitution of any other country is acknowledged, he / she even after getting the Citizenship of India cannot hold any Constitutional Office, as it is also evident from Section 7B of the Indian Citizenship Act, 1955. However, this pre-condition in the Scheme of Indian Citizenship was never taken care of when Section 5(1)(c ) read with Section 5(2) of the Indian Citizenship Act, 1955 was enacted.

(3)        That in view of the averments referred to and Cause of Action disclosed in the Writ Petition relating to the allegiance to the Constitution of Italy, of the Respondents No. 6 and 7 which unequivocally, irrevocably and undoubtedly always prevails, as such they are disqualified to be a member of either House of Parliament under Article 102 of the Constitution of India. But when section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 was enacted the requirement of the condition of the Scheme of Indian Citizenship and Article 102 of the Constitution of India was not adhered to, and fully ignored. Therefore, section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 runs contrary to and in violation of the provisions of Article 102 of the Constitution of India, as section 5(1)(c) read with Section 5(2) of the Indian Citizenship simply does not grant the Indian Citizenship to the Respondent No. 6 but also opens the doors to hold the Constitutional Offices contrary to the provisions interalia of the Article 102 of the Constitution of India.

(4)        In the judgment the Hon’ble Supreme Court observed in clear terms that it is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence.  No amount of evidence can cure basic defect in the pleadings. In the instant Writ Petition completely relying upon the averments made in the plaint of the Writ Petition and humbly submits that he discloses the cause of action pleaded, adducing evidences that the Respondents No. 6 and 7 are always having allegiance to the Constitution of Italy, and disqualified to be a member of either House of Parliament under Article 102 of the Constitution of India, therefore, the Writ Petition should not have been dismissed at limini by taking notice of the foreign law i.e. in this case the Italian Law.   

 

ISSUE: 3. According to the averment made in the Writ Petition, if the allegiance of the Respondent No. 6 and 7 to the Constitution of Italy is acknowledged, in such a case, should they not be disqualified for being choosen as and for being member of either House of Parliament under Article 102 of the Constitution of India?

 

According to observations made in the aforesaid Judgment under paragraph 19 appeared in AIR: 2001:SC at pages: 3699 the Hon’ble Supreme Court interalia hold that “Thus, looking at the scheme of the Citizenship Act, as also the judicial opinion which has prevailed ever since the enactment of Citizenship Act, 1955, we are unhesitatingly of the opinion that in spite of a certificate of registration under Section 5(1)(c) of Citizenship Act, 1955 having been granted to a person and in spite of his having been enrolled in the voters list, the question whether he is a citizen of India and hence qualified for, or disqualified from, contesting an election can be raised before and tried by the High Court hearing an election petition, provided the challenge is based on factual matrix given in the petition and not merely bald or vague allegations.”

 

In the instant Writ Petition the challenge of the Petitioner was not based on the political purposes or reasons, nor the bald allegations, but was based on true ‘factual matrix’ given in the petition, disclosing the cause of action, pleaded adducing evidences that the Respondents No. 6 and 7 are always having allegiance to the Constitution of Italy, and disqualified to be a member of either House of Parliament under Article 102 of the Constitution of India, therefore, the question of Citizenship of India granted to Respondent No. 6 under Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act and the question of Citizenship of the Respondent No. 7 should have been decided by inviting the Respondents to join in the pleadings by adducing evidences, that the Respondents No. 6 and 7 are not Citizen of Italy by birth and that they at all can renounce or did renounced their right to Citizenship of Italy permanently and forever and that they have no right to Citizenship of Italy under Italian Law, and further that they in no manner they have any allegiance to the Constitution of Italy and if they could have satisfied that no cause of action was disclosed, only then after satisfying itself on these issues the Hon’ble High Court should have dismissed the Writ Petition, since the Petitioner disclosed the cause of action in clear terms by pleading the averments and adducing evidences relating to the matter of fact that the Respondents No. 6 and 7 are debarred by Article 102 of the Constitution of India since their allegiance to the Constitution of Italy always prevails and acknowledged forever, permanently, irrevocably, unequivocally and undoubtedly.

 

ISSUE: 4: Is Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 is ultra virus?      

According to observations made in the aforesaid Judgment of the Hon’ble Supreme Court, paragraphs 24, 28, 29, 30, and 31 as appeared in AIR: 2001:SC between pages: 3700 and 3703 are very important and pertinent with regards to the question of Constitutional validity of the Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955, with reference to averments and pleadings made by the aforesaid Petitioners of the Election Petitions who in their pleadings and arguments regretted about having any knowledge of the Italian Law under which the Hon’ble Supreme Court could at least make out or form any prima-facie opinion.    

 

Pleadings of the Petitioner:

That contrary to the pleadings of the aforesaid Petitioners in the Election Petitions referred to in the Supreme Court Judgment, the Petitioner herein referred the complete text of the Italian Citizenship Act, both in Italian Language taken from the website of the Government of Italy and English copy translated and available in the Website of the recognised International Organisations. The Petitioner is also having the entire text of the Constitution of Italy in Italian language taken from the Website of the Government of Italy and referred in his averment and annexed its in English copy translated by renowned Italian Professor and law faculty, working as Professor in an Italian University. Besides he also pleaded adducing evidences obtained from the Websites of different Italian Embassies. 

 

From the aforesaid documents in English this is amply clear that the Respondents No. 6 and 7 are Italian Citizens by birth. Under the conditions laid down by the Constitution of Italy and Citizenship Law of Italy they cannot permanently and irrevocably renounce their right to Citizenship of Italy and allegiance to the Constitution of Italy. When Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 was enacted the impact upon the proprietary of the Constitution of India resulting from the fallout of a foreign law like Italian Law was never and not at any point at all considered to the effect that it could and may cause damage to the proprietary of the Constitution of India. Otherwise, this enactment would certainly have been in conformity and in tune with the provisions and the conditions laid down for Overseas Indian Citizenship while considering their dual Citizenship under Section 7A and 7B of the Indian Citizenship Act, 1955 to provide the Indian Citizenships to the Respondents No. 6 and 7, since they cannot and should not be treated beyond the category of the dual citizenship.  

 

That when Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 was enacted preventive provisions were not made in the law, under which and in accordance with the scheme of the Indian Citizenship, no person holding a citizenship of any other country even if he/she gets citizenship of India under dual citizenship, cannot hold any Constitutional Office in India. In this case the Respondent No. 6 is allowed to hold the Constitutional Office in violation of the Article 102 of the Constitution of India, thus Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 is ultra virus.          

 

The Scheme of Indian Citizenship is amply clear that whenever allegiance to the Constitution of any other country is acknowledged, he / she even after getting the Citizenship of India cannot hold any Constitutional Office as it is also evident from Section 7B of the Indian Citizenship Act, 1955. But, when section 5(1)(c ) read with Section 5(2) of the Indian Citizenship Act, 1955 was enacted the requirement of the condition of the Scheme of Indian Citizenship and Article 102 of the Constitution of India was not adhered to, and fully ignored. Therefore, section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 runs contrary to and in violation of the provision of Article 102 of the Constitution of India.

 

In accordance with the averment made and cause of actions disclosed, relating to the question of material facts that Section 5(1)(c) read with Section 5(2) of the Indian Citizenship Act, 1955 is enacted in violation of the Scheme of Indian Citizenship under which any one having Citizenship of India with citizenship of one more country, cannot hold any constitutional office, while at the time of enactment of Section 5(1)(C) read with Section 5(2) of the Indian Citizenship Act, 1955 such condition was not maintained. As a result Section 5(1)(C) read with Section 5(2) of the Indian Citizenship Act, 1955 is not directed to the respective applicants for Citizenship through Registration to disclose whether under their existing citizenship of a foreign country particularly a country like Italy can they renounce their Right to Citizenship of Italy, and further not directed to disclose whether can they renounce their existing allegiance to the their country of origin. Thus, Section 5(1)(C) read with Section 5(2) of the Indian Citizenship Act, 1955 opens the door to hold the Constitutional office in violation of the Constitutional Proprietary and bar imposed by Article 102 of the Constitution of India, ignoring the question of fact that an Italian Citizen never can permanently and irrevocably renounce his/her right to Citizenship of Italy as such their allegiance to the Constitution of Italy is acknowledged and always prevails forever, permanently, irrevocably, unequivocally and undoubtedly. Therefore is liable to be declared as ultra virus.    

 

That therefore, in view of the aforesaid Judgment, Hon’ble High Court should have decided the matter of fact relating to Italian Law by inviting the Respondents to plead by adducing evidences to decide whether Section 5(1)(c ) read with Section 5(2) of the Indian Citizenship Act, 1955 is ultra virus or not?

 

In view of the facts stated in Application under Section 151 of the Civil Procedure Code for the restoration of the Writ Petition (Civil) No. 7790 of 2006 which was dismissed, can never be called or termed as some thing like ‘vexatious litigation’. In fact whenever the Petitioner taken any steps in larger public interests, always taken in consideration of the fundamental right that every citizens in India are equal before the law, and never considered threat perception and not restrained him from action taking in the larger public interests, against even powerful and influential people or big business Houses in India though he always aware that they are competent verify the Report of the Vohra Committee, which said that even judicial officers are not spared from the embarrassments to make the life and liberties of the petitioner measurable. The petitioner subsequently passed through severe experiences.      

 

Therefore, the Petitioner humbly submits that in view of what has been stated above the Writ Petition (Civil) No. 7990 of 2006 be restored, recalling the order dated 9th May 2006 passed by this Hon’ble Court and the Respondents be directed as per prayer in the Writ Petition.   

 

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

 

 

New Delhi                                                                      Filed by (MILAP CHORARIA)

Filed 24th May, 2006                                                       Petitioner-in-person

 

Truth shall prevail