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thoughtsnips
Wednesday, May 19, 2004
 
Whose inner voice?
Pioneer News Service/ New Delhi

Apparently, it was not the "inner voice" but certain queries that could have
been put to her by the President of India, custodian of the Constitution, which
caused her to withdraw her name.

Contrary to attempts by Congressmen and Communists to portray her eleventh-hour
retreat as a "personal decision" spurred by her children, it could be the
clarifications apparently sought by President A P J Abdul Kalam that resulted in the
rethink. The President, it is reliably learnt, did not outrightly reject her
candidature for the post of the Prime Minister. However, he is believed to have
sought certain clarifications on a few points regarding the precise status of
her Indian citizenship. In doing so, he may have referred to some pointed queries
referred to him by legal luminaries who met him since the declaration of the
Lok Sabha election results.

That probably explains why Ms Gandhi's decision to opt out came only after she
emerged from the Rashtrapati Bhawan after meeting the President on Tuesday at
12.30 pm. That could also explain why she did not allow the entourage of allied
parties to accompany her for the meeting, contrary to custom.

According to highly placed sources, the President may have conveyed to her that
in view of the legal and constitutional queries raised, he would need some more
time to examine the matter. Accordingly, there could be no swearing-in on
Wednesday, May 19 - a date unilaterally announced by Left leaders and
enthusiastically endorsed by Congressmen on Monday without consulting the Rashtrapati Bhawan.

Highly placed sources in the Government told The Pioneer that on the basis of
various petitions submitted to him, the President could have sought to clarify a
few issues from Ms Gandhi. He is said to have informally communicated to her on
Monday evening that certain queries needed to be answered, even as he invited
her to have a discussion on Government formation.

On the basis of pleas submitted to him by people like Janata Party leader
Subramanian Swamy and BJP leader Sushma Swaraj against any person of foreign origin
occupying a top constitutional post, and the legal advice that he had obtained
from top constitutional experts, the President could have sought three
clarifications from Ms Gandhi. This would be a haunting experience for Ms Gandhi. The
BJP leaders had already declared that they would continue to support any form of
agitation on the foreign origin issue.

The most damaging clarification that has apparently been sought relates to
Article 102 of the Constitution that says: "A person shall be disqualified for
being chosen as, and for being, a member of either House of Parliament" on any or
more of five possible grounds. Clause(d) of the same Article says "... or is
under any acknowledgement of allegiance or adherence to a foreign state".

The term "adherence" had to be clarified specifically as Ms Gandhi in her
affidavit before the Returning Officer of the Rai Bareli parliamentary constituency
had stated that she owned ancestral property, namely portion of a house, in
Orbassano, Italy, the country of her origin. This fact of ownership, legal experts
say, makes her subject to Italian law in this matter and could be interpreted
as "adherence" to a foreign country. Since this portion of the ancestral
property was apparently bequeathed to her by her father in his will, she inherited it
only after his death. Consequently, the property was not her's when she filed
her 1999 nomination affidavit.

Article 103 states that "if any question arises as to whether a member of
either House of Parliament has become subject to disqualification mentioned in
Article 102, the question shall be referred for the decision to the President and
his decision shall be final". Clause 2 of the Article says: "Before giving any
decision on such question, the President shall obtain the opinion of the Election
Commission and shall act according to such opinion."

This means that the President is required by the Constitution to undertake an
elaborate process of examining the legal and constitutional issues involved.
Thus, Ms Gandhi's swearing-in could not happen before the matter was fully
clarified and resolved.

Another point that came in the way of Ms Gandhi was Section 5 of the
Citizenship Act. Under this, there is a reciprocity provision whereby citizenship granted
by India to persons of foreign origin is circumscribed by the rights that
particular country confers upon foreigners seeking citizenship there.

The crux of this provision of "reciprocity" is that a person of foreign origin,
who has acquired the citizenship of India through registration by virtue of
marrying an Indian national, cannot enjoy more rights (like becoming Prime
Minister), if the same opportunity is not available to an Indian-born citizen in that
particular country.

While it is not known whether the President mentioned this, legal luminaries
pointed out there could be a further lacuna over the issue of her surrendering
Italian citizenship. It is believed that while acquiring citizenship through
registration in 1983, she surrendered her Italian passport to the Italian
Ambassador in New Delhi but did not obtain a formal notification from the Italian
Government that her citizenship of that country had been cancelled.

This might be only a technicality that could be rectified in a few days, but it
would have certainly helped the BJP raise the pitch of the campaign once the
citizenship issue returned to the fore.

Another petition submitted to the President on Tuesday by Sushma Swaraj pointed
out that as the Supreme Commander of India's Armed Forces, the President should
examine a key issue. It referred to the fact that a Defence or Indian Foreign
Service official cannot even marry a foreign national without permission, or
must quit his post. How could a person of foreign origin be handed over the
nuclear button in such circumstances, Ms Swaraj's petition demanded to know.

What could have prevented Sonia?

Article 102 of the Constitution says: "A person shall be disqualified for being
chosen as, and for being, a member of either House of Parliament - (d) if he or
she is under any acknowledgement of allegiance or adherence to a foreign
state." Sonia Gandhi, in her affidavit, had declared she owned a house in Italy and
may thus invite, the term "adherence" of the said provision.

Under Article 103, the President is the sole adjudicator on the issue who has
to decide on such matter in consultation with the Election Commission.

Section 5 of the Citizenship Act, dealing with the reciprocity clause for a
person who registered herself as an Indian citizen, says the said person could not
enjoy more rights than those available to an Indian born person in that other
country if he/she acquires citizenship of that country, like Italy for instance.

The clauses of the Citizenship Act were apparently not fully met when Ms Gandhi
relinquished her Italian citizenship.

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