# Ramesh Singh v. Sonia Gandhi & Anr

- **Citation:** (2016) 7 ILRA 244
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-11
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-singh-v-sonia-gandhi-anr-44027
- **Pages:** 23

## Text

_Characters 0–39,761 of 75,522. This is a partial read: ask again with offset=39761 for what follows._

244 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In view of the above and in the absence of any reasoning having been adopted or
assigned either by the assessing authority or the first appellate authority while quantifying the
turnover the orders are not liable to be sustained.

16. Accordingly this revision shall stand allowed in part. The orders of the assessing
authority, first appellate authority as also that of the Tribunal affirming them to the extent of
quantification, shall stand set aside. The matter is remitted to the assessing authority for a decision
afresh on this aspect of the matter alone and in light of the observations made hereinabove.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.07.2016

BEFORE

THE HON'BLE TARUN AGARWALA, J.

Election Petition No.- 4 Of 2014

Ramesh Singh ...Petitioner
Versus
Sonia Gandhi & Anr. ...Respondents

Counsel for Petitioner:
Sri Hari Shankar Jain, Sri Subash Vidyarthi, Ms. Ranjana Agnihotri, Ms. Sudha Sharma

Counsel for Respondents:
Sri P.P. Rao (Sr. Counsel), Sri Umesh Narain Sharma (Sr. Counsel), Sri K.C. Mittal, Sri Ravi Shankar Prasad,
Ms. Maha Lakshmi Pavani

Election Law -- Representation of the People Act, 1951 -- Section 81, 83, 100 -- Election Petition
-- Material Facts -- Pleadings -- Order 7 Rule 11 CPC -- Citizenship of Respondent-Candidate --
Election petition challenged the election of Smt. Sonia Gandhi from 36 Rae Bareli Lok Sabha Constituency on
grounds: (i) she is not a citizen of India being a citizen of Italy by birth and having acquired Indian citizenship
only by registration under Section 5(1)(c) of the Citizenship Act, 1955, which the petitioner contended was not
equivalent to citizenship by birth or descent as required by Article 84 of the Constitution; (ii) Section 5(1)(c) of
the Citizenship Act and Rule 4 of the Citizenship Rules, 1956 are unconstitutional; (iii) corrupt practice in
appealing to vote on ground of religion through Syed Ahmad Bukhari -- Respondent filed application under
Order 7, Rule 11 CPC for dismissal on ground of non-disclosure of cause of action -- Held: the averments in
paragraphs 8 to 54 of the petition are virtually identical to those in the election petition of Hari Shankar Jain
challenging the 1999 election, which was dismissed by the High Court and affirmed by the Supreme Court in
Hari Shankar Jain v. Sonia Gandhi (2001) 8 SCC 233, on the ground that bald and vague allegations not
satisfying the requirement of Section 83(1)(a) cannot disclose a cause of action -- the present petition being
based on substantially the same pleadings must meet the same fate -- a ground negated by the Court on an
earlier occasion cannot be improved upon in another election petition by the same counsel.

Election Law -- Section 5(1)(c) Citizenship Act, 1955 -- Citizenship by Registration -- Validity --
Vires -- Challenge in Election Petition -- Absence of Challenge to Citizenship Order -- Held: the
7 All. Ramesh Singh Vs Sonia Gandhi & Anr.

245
 Central Government issued an order dated 30th April, 1983 registering respondent no.1 as a citizen of India
under Section 5(1)(c) of the Citizenship Act, 1955 -- such order of registration has not been cancelled,
withdrawn or annulled -- so long as the certificate of registration stands, the respondent continues to remain
a citizen of India -- the vires of the Citizenship Act can be challenged in an election petition only provided the
grant of certificate under the said provision is also questioned -- since the order of citizenship dated 30th
April, 1983 has not been challenged, the Court is not inclined to answer hypothetical or academic questions
testing the validity or vires of any law -- the presumption of validity of the certificate granted under Section 5
continues under Section 114 of the Evidence Act -- whether a person who has acquired citizenship by
registration can be equated with a citizen by birth or descent for the purposes of Article 84(a) of the
Constitution is an academic question which cannot be decided without the order of citizenship being
challenged. (Paras 27-36)

Election Law -- Section 9 Citizenship Act, 1955 -- Termination of Citizenship -- Jurisdiction of
High Court -- Italian Citizenship -- Held: the question whether a candidate has acquired citizenship of a
foreign state can be decided by the High Court trying an election petition only on the basis of a declaration
made by the Central Government under Section 9 of the Citizenship Act -- if no such declaration has been
made, the High Court should proceed on the ground that the candidate has not ceased to be an Indian citizen
-- it cannot independently hold an inquiry into that question on its own -- assertion that respondent continues
to be a citizen of Italy in view of the laws of Italy is a bald allegation verified only on personal knowledge and
legal advice without stating the source -- such assertions do not disclose material facts and cannot warrant an
inquiry. (Paras 33-37)

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner has filed the present election petition under Section 81 of the
Representation of People Act, 1951 (hereinafter referred to as the Act) challenging the election of
Smt. Sonia Gandhi, who was declared elected from 36 Rae Bareli Lok Sabha Constituency on 16th
May, 2014. The petitioner contends that he is a resident of Rae Bareli and is also an elector and
contends that the election of Sonia Gandhi should be declared void.

2. The facts, in brief, are that the Election Commission of India declared the election
schedule for the 16th Lok Sabha on 5th March, 2014. The notification was issued on 2nd April,
2014. Smt. Sonia Gandhi filed her nomination papers on 2nd April, 2014. The polling was held on
30th April, 2014 and the result was declared on 16th May, 2014 on which date Smt. Sonia Gandhi
was declared elected.

3. The petitioner contends that Smt. Sonia Gandhi was born on 9th December, 1946 in
village Lusiana in the Republic of Italy and is a citizen of Italy. Her real name is Anotinia Manio.
The respondent married Rajiv Gandhi on 25th February, 1968 and, after marriage, changed her
name to Sonia Gandhi.

4. The petitioner contends that the respondent was granted the Indian citizenship w.e.f.
30th April, 1983 under Section 5(1)(c) of the Indian Citizenship Act, 1955 (hereinafter referred to
as the Citizenship Act). The petitioner contends that under the Citizenship Act, there are two
categories of citizens of India, namely, (1) citizenship as a right, i.e. citizenship acquired by a
person by birth or by descent and (2) conferred citizenship, i.e. a person on whose application, the
246 INDIAN LAW REPORTS ALLAHABAD SERIES

Central Government has a discretion to grant or not to grant Indian citizenship. The petitioner
further contends that the conferred citizenship is of two types, namely, (a) citizenship by
Registration and (b) citizenship by Naturalisation. The petitioner has made an elaborate submission
contending that a person registered as a citizen of India becomes a citizen of India by a deeming
fiction but is not 'actually" a citizen of India within the meaning of Article 84 of the Constitution of
India and cannot be considered at par with the citizens of India by birth or by descent. In other
words, only persons who are citizens by birth or by descent qualify to be citizens of India under
Article 84 of the Constitution of India and, therefore, could qualify to be elected as a member of
Lok Sabha. The petitioner contends that the respondent being granted a citizenship of India by
registration under Section 5(1)(c) of the Citizenship Act cannot enjoy the same rights as conferred
to those persons who are granted citizenship of India by birth or descent.

5. The petitioner, therefore, contends that the words "citizen of India" as contemplated
under Article 84 of the Constitution of India refers to those persons who are citizens by birth or
descent and not to those persons who have acquired citizenship of India by registration. It was thus
contended that since Smt. Sonia Gandhi is a citizen of India by registration, she was not qualified to
get elected as a member of the Lok Sabha under Article 84 of the Constitution of India. Further, she
could not be registered as a voter in view of the provisions of Article 326 of the Constitution of
India.

6. The petitioner further contended that Section 5(1)(c) of the Citizenship Act, 1955, Rule 4
of the Citizenship Rules, 1956 and Form III prescribed therein are unconstitutional and should be
declared ultra vires the Constitution. Necessary pleadings have been spelt out in para 46 of the
petition.

7. The petitioner further contended that the respondent is still a citizen of Italy and the laws
of Italy does not permit its citizens to hold a dual citizenship. It was contended that the respondent
has not renounced her citizenship of Italy and, therefore, the respondent could not become an
Indian citizen.

8. The petitioner petitioner further contended that the respondent committed corrupt
practice, namely, she made an appeal to vote on the ground of religion. The petitioner contended
that as per news reports, it was revealed to the petitioner that on 31st March, 2014, Sri Rajiv Shukla
a Congress Party leader, invited Syed Ahmad Bukhari to meet the respondent at her residence. The
petitioner alleged that as per television news channel broadcast on 1st April, 2014, it was revealed
to him that a meeting took place between the respondent and Syed Ahmad Bukhari, Shahi Imam of
Jama Masjid, New Delhi which lasted for about 45 minutes, and, on coming out of the meeting,
Syed Ahmad Bukhari claimed that the respondent had requested him to endeavour and ensure that
the Muslim votes should not split in the upcoming Lok Sabha elections. The petitioner further
contended that the television news channel report of 4th April, 2014 revealed that Syed Ahmad
Bukhari in a Press Conference declared his support to the Congress Party on the basis of the
meeting held with the respondent on 1st April, 2014. According to the petitioner, Syed Ahmad
7 All. Ramesh Singh Vs Sonia Gandhi & Anr.

247
Bukhari appealed to the muslim community to vote for the Congress Party and ensure that the
secular votes are not split.

9. The petitioner contended that the appeal made by Syed Ahmad Bukhari was given wide
publicity by the media, which influenced the Muslim voters to vote in favour of the respondent due
to which the respondent won the election. The petitioner contended that the appeal by Syed Ahmad
Bukhari to vote on religious lines is a corrupt practice and, therefore, the election of the respondent
is void under Section 100(1)(b) of the Act. The petitioner, therefore, prayed that the election of
Smt. Sonia Gandhi from 36 Rae Bareli Lok Sabha Constituency be declared void and her election
be set aside. The petitioner has also prayed that Section 5(1)(c) of the Citizenship Act be declared
unconstitutional and void.

10. The respondent has filed her written statement. Shorn of details, the respondent
contended that the election petition is totally false, frivolous, malicious and is liable to be
dismissed. The respondent was duly granted citizenship of India and that she has renounced her
citizenship of her native country Italy. The respondent has denied that she continues to be a citizen
of Italy. The respondent further contended that she is a citizen of India for the purposes of Article
84(a) and 326 of the Constitution of India. Further, the issue of her citizenship has been decided by
the High Court in Election Petition No.1 of 2009 (Rakesh Singh Vs. Sonia Gandhi) vide judgment
dated 14th February, 2011, which has attained finality and that the same issue cannot be raised
again and is consequently, barred by the principle of res judicata. The respondent further denied
that she indulged in corrupt practice on the ground of religion. The respondent contended that she
had not given her consent to Syed Ahmad Bukhari on 4th April, 2014 to make an appeal on
religious grounds. The respondent contended that she has been validly elected as a Member of
Parliament.

11. The respondent has filed an application under Order 7, Rule 11(a) of the Code of Civil
Procedure for the dismissal of the petition on the ground of lack of cause of action as well as under
Section 86(1) of the Act for non-compliance of Section 81(1) and 81(3) of the Act. The respondent
contended that the grounds raised in the election petition are vexatious and frivolous and is
otherwise an abuse of the process of the Court. The respondent contended that even if the
allegations made in the petition are taken into consideration in entirety, the petition is liable to be
dismissed as it does not disclose any cause of action. The respondent contended that only vague
and general allegations have been made which does not disclose any material fact nor any triable
issue arises for consideration. The respondent contended that there is lack of "facta probanda" and,
therefore, there is lack of cause of action. The assertions made in the petiition is the personal
opinion of the petitioner based on misinterpretation of law. Such assertion, based on personal
opinion, and which does not contain any material fact are irrelevant, unnecessary and frivolous and
is also an abuse of the process of law. The respondent contended that no cause of action has arisen
for adjudication and thus the petition should be dismissed.

12. The respondent has also filed an application under Order 6, Rule 16 of the Code of
Civil Procedure contending that imaginary and false insinuation has been levelled against the
248 INDIAN LAW REPORTS ALLAHABAD SERIES

respondent without giving any details thereof. The respondent contended that paras 6 to 68 of the
election petition has been verified by the petitioner on the basis of personal knowledge and
information received but the petitioner has not disclosed the source from where the information or
knowledge has been gathered. The respondent thus urged that on this ground itself the petition was
liable to be dismissed at the threshold itself. The respondent contended that a newspaper report or
television news cannot be a source of information for trial in an election petition and since the
verification clause is contrary to the provisions of Order 6, Rule 16 of the Code of Civil Procedure,
such pleading cannot amount to disclosure of any cause of action and, therefore, paras 6 to 68 of
the petition should be struck off from the pleadings of the election petition.

13. The petitioner has contested the applications under Order 7, Rule 11(a) and under
Order 6, Rule 16 of the Code of Civil Procedure contending that the applications are misconceived
and without any foundation. The petitioner contended that on the basis of the pleadings made in the
petition, a cause of action was made out and that the election petition deserves a full trial. The
petitioner further contended that the verification of the paragraphs of the election petition are in
consonance with the provisions of Order 6, Rule 15 of the Code of Civil Procedure.

14. In this backdrop, I have heard Sri Hari Shankar Jain, Sri Subash Vidyarthi, Ms.
Ranjana Agnihotri and Ms. Sudha Sharma, the learned counsels for the petitioner and Sri P.P. Rao,
the learned Senior Counsel, Sri Umesh Narain Sharma, the learned Senior Counsel assisted by Sri
K.C. Mittal, Sri Ravi Shankar Prasad, Ms. Maha Lakshmi Pavani, the learned counsel for
respondent no.1.

15. By virtue of Section 87 of the Act, the provisions of the Code of Civil Procedure
applies to the trial of an election petition and consequently, the Court trying an election petition can
exercise the provisions of the Code of Civil Procedure, including Order 6, Rule 16 and/or Order 7,
Rule 11. For facility the provisions of Section 87 of the Act, Order 6, Rule 16 and Order 7, Rule
11(a) of the Code of Civil Procedure are extracted hereunder:

"87. Procedure before the High Court.--(1) Subject to the provisions of this Act and
of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as
may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5
of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be
recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of
such witness or witnesses is not material for the decision of the petition or that the party tendering
such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1972), shall, subject to the
provisions of this Act, be deemed to apply in all respects to the trial of an election petition.]"
7 All. Ramesh Singh Vs Sonia Gandhi & Anr.

249

"Order 6, Rule 16: Striking out pleadings.-The Court may at any stage of the
proceedings order to be struck out or amend any matter in any pleading-

(a)which may be unnecessary, scandalous, frivolous or vexatious; or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or

(c) which is otherwise an abuse of the process of the Court."

"Order 7, Rule 11. Rejection of Plaint - The plaint shall be rejected in the following
case:-

(a) Where it does not disclose a cause of action."

16. Under Section 87 of the Act, every election petition shall be tried by the High Court in
accordance with the procedure applicable under the Code of Civil Procedure. Section 83 of the Act
provides that an election petition shall contain a concise statement of the material facts on which
the petitioner relies. For facility, the provisions of Section 83 of the Act is extracted hereunder:

"83. Contents of petition.--(1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner
relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges,
including as full a statement as possible of the names of the parties alleged to have committed such
corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the
Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

[Provided that where the petitioner alleges any corrupt practice, the petition shall
also be accompanied by an affidavit in the prescribed form in support of the allegation of such
corrupt practice and the particulars thereof.]

(2) Any schedule or annexure to the petition shall also be signed by the petitioner
and verified in the same manner as the petition.]"

17. Consequently, from a conjoint reading of Section 83 read with Order 7, Rule 11(a), if
material facts have not been pleaded in the petition, appropriate orders can be passed in exercise of
the powers given to the Court under the Code of Civil Procedure.
250 INDIAN LAW REPORTS ALLAHABAD SERIES

18. In Samant N. Balakrishna Vs. George Fernandez, (1969) 3 SCC 238, the Supreme
Court held that an omission of a single material fact would lead to an incomplete cause of action
and that an election petition would consequently fail. The Court held:

"The whole purpose of conferment of such powers is to ensure that a litigation which
is meaningless and bound to prove abortive should not be permitted to occupy the time of the court
and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his
head unnecessarily without point of purpose. Even in an ordinary civil litigation the court readily
exercises the power to reject a plaint if it does not disclose any cause of action.

19. Similarly, in Udhav Singh Vs. Madhav Rao Sindhia, 1977 (1) SCC 511, the Supreme
Court held that all primary facts, which are required to be proved by a party to establish a cause of
action are material facts. Thus, in an election petition, it is essential or rather mandatory to plead
the material facts. Failure to plead even a single material fact would lead to the dismissal of the
petition.

20. In T. Arivandandam Vs. T.V. Satyapal and another, 1977 (4) SCC 467, the Supreme
Court held:-

"...... that if on a meaningful - not formal - reading of the plaint it is manifestly
vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his
power under Order VII, Rule 11, CPC taking care to see that the ground mentioned therein is
fulfilled. And, if clever drafting has creating the illusion of a cause of action, nip it in the bud at the
first hearing by examining the party searchingly under Order X, CPC. An activist Judge is the
answer to irresponsible law suits. The trial courts would insist imperatively on examining the party
at the first hearing so that bogus litigation can be shot down at the earliest stage...."

21. In Azhar Hussain Vs. Rajiv Gandhi, 1986 (Supp.) SCC 315, the Supreme Court after
reviewing the case laws under Order 7, Rule 11 of the Code of Civil Procedure held that a suit
which does not furnish a cause of action can be dismissed under Order 7, Rule 11 of the Code of
Civil Procedure. The Supreme Court held that the omission of a single material fact amounts to an
incomplete cause of action and can lead to the rejection of the election petition. The Supreme Court
held that all the facts, which are essential to clothe the petition with complete cause of action must
be pleaded and failure to plead even a single material fact, would amount to a disobedience of the
mandate provided under Section 83(1(a) of the Act.

22. The Supreme Court, after considering the numerous decisions of the Court, restated the
settled position on the question as to what exactly the expression "material facts and particulars"
means which the election petitioner was required to incorporate in his petition by virtue of Section
83(1) of the Act, namely:

"(1) What are material facts and particulars ? Material facts are facts which if
established would give the petitioner the relief asked for. The test required to be answered is
7 All. Ramesh Singh Vs Sonia Gandhi & Anr.

251
whether the Court could have given a direct verdict in favour of the election petitioner in case the
returned candidate had not appeared to oppose the election petition on the basis of the facts
pleaded in the petition. Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi & Ors., [1969] 3
S.C.R. 217. (2) In regard to the alleged corrupt practice pertaining to the assistance obtained from
a Government servant, the following facts are essential to clothe the petition with a cause of action
which will call for an answer from the returned candidate and must therefore be pleaded.
Hardwari Lal v. Kanwal Singh, [1972] 2 S.C.R. 742:

a) mode of assistance;

b)measure of assistance; and

c) all various forms of facts pertaining to the assistance.

(3) In the context of an allegation as regards procuring, obtaining, abetting or
attempting to obtain or procure the assistance of Government servants in election it is absolutely
essential to plead the following :

a) kind or form of assistance obtained or procured;

b) in what manner the assistance was obtained or procured or attempted to be
obtained or procured by the election-candidate for promoting the prospects of his election
Hardwari Lal v. Kanwal Singh. (supra)

(4) The returned candidate must be told as to what assistance he was supposed to
have sought, the type of assistance, the manner of assistance, the time of assistance, the persons
from whom the actual and specific assistance was procured Hardwari Lal v. Kanwal Singh (supra)

(5) There must also be a statement in the election petition describing the manner in
which the prospects of the election was furthered and the way in which the assistance was
rendered. Hardwari Lal v. Kanwal Singh (supra).

(6) The election petitioner must state with exactness the time of assistance, the
manner of assistance, the persons from whom assistance was obtained or procured, the time and
date of the same, all these will have to be set out in the particulars Hardwari Lal v. Kanwal Singh
(supra).

23. The distinction between "material facts" and "particulars" and the requirement in
election petition was again explained by the Supreme Court in Virender Nath Gautam Vs. Satpal
Singh, 2007 (3) SCC 617, wherein the Supreme Court held:

"There is distinction between facta probanda (the facts required to be proved, i.e.
material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or
252 INDIAN LAW REPORTS ALLAHABAD SERIES

evidence). It is settled law that pleadings must contain only facta probanda and not facta
probantia. The material facts on which the party relies for his claim are called facta probanda and
they must be stated in the pleadings. But the facts or facts by means of which facta probanda
(material facts) are proved and which are in the nature of facta probantia (particulars or evidence)
need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to
be proved at the trial in order to establish the fact in issue."

24. In Ram Sukh Vs. Dinesh Aggarwal, 2009 (10) SCC 541, the Supreme Court held that:-

"Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to
the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act,
the court trying an election petition can act in exercise of its power under the Code, including
Order VI Rule 16 and Order VII Rule 11 of the Code. The object of both the provisions is to ensure
that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to
occupy the judicial time of the courts......"

25. In I.T.C. Ltd. Vs. Debts Recovery Appellate Tribunal, 1998 (2) SCC 70 the Supreme
Court held:

"The basic question to be decided while dealing with an application filed under
Order 7, Rule 11 of the Code is whether a real cause of action has been set out in the plaint or
something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code."

26. In Sopan Sukhdeo Sable and others Vs. Assistant. Charity Commissioner and others,
2004 (3) SCC 137, the Supreme Court held that:

"... The real object of Order 7, Rule 11 of the Code is to keep out of courts
irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by
resorting to which and by a searching examination of the party, in case the court is prima facie of
the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and
irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised."

27. And again held:

"Rule 11 of Order 7 lays down an independent remedy made available to the
defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the
same on merits. The law ostensibly does not contemplate at any stage when the objections can be
raised, and also does not say in express terms about the filing of a written statement. Instead, the
word "shall" is used, clearly implying thereby that it casts a duty on the court to perform its
obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four
clauses of Rule 11, even without intervention of the defendant."
7 All. Ramesh Singh Vs Sonia Gandhi & Anr.

253
28. In Liverpool and London S.P. & I Association Ltd. Vs. M.V. Sea Success I and
another, 2004 (9) SCC 512, the Supreme Court held:

"The idea underlying Order 7 Rule 11A is that when no cause of action is disclosed,
the courts will not unnecessarily protract the hearing of a suit. Having regard to the changes in the
legislative policy as adumbrated by the amendments carried out in the Code of Civil Procedure, the
Courts would interpret the provisions in such a manner so as to save expenses, achieve expedition,
avoid the court's resources being used up on cases which will serve no useful purpose. A litigation
which in the opinion of the court is doomed to fail would not further be allowed to be used as a
device to harass a litigant."

29. In view of the settled position of law with regard to the expression "material facts", it
becomes essential to consider the grounds on which the election of the returned candidate is being
assailed.

30. To recapitulate, the election of respondent no.1 has been challenged on the following
grounds:

(1) That respondent no.1 is not a citizen of India and, therefore, was not qualified to
be chosen to fill the seat in the Lok Sabha and, consequently, her nomination paper could not be
accepted by the Returning Officer.

(2) Section 5(1)(c) of the Citizenship Act, 1955 read with Rule 4 of the Citizenship
Rules, 1956 along with Form 2 of the Rules is unconstitutional and void and,

(3) Respondent no.1 committed corrupt practice by appealing to vote on the ground
of religion.

31. Based on the aforesaid grounds, the petitioner has prayed that the election of
respondent no.1 be set aside and further declare Section 5(1)(c) of Citizenship Act and the Rules
made thereunder as unconstitutional.

32. Sri P.P. Rao, the learned Senior Counsel for respondent no.1 contended that with regard
to the challenge that respondent no.1 is not a citizen of India, necessary assertion has been made in
paragraphs 8 to 54 of the election petition. It was contended that the averments made in these
paragraphs are substantially the same, if not verbatim as made by one Hari Shankar Jain in his
election petition questioning the election of respondent no.1 when she was elected to the 13th Lok
Sabha from Amethi parliament constituency in 1999, which election petition was dismissed under
Order 7, Rule 11 of the Code of Civil Procedure for non-disclosure of cause of action by the
Allahabad High Court. The said decision was affirmed by the Supreme Court in Hari Shankar
Jain Vs. Sonia Gandhi, 2001 (8) SCC 233. It was contended that in view of the aforesaid, the
present election petition being based on the same set of facts should be dismissed under Order 7,
Rule 11 of the Code of Civil Procedure on the ground of non-disclosure of cause of action.
254 INDIAN LAW REPORTS ALLAHABAD SERIES

33. The learned Senior Counsel contended that respondent no.1 was again elected in the
Lok Sabha election in the year 2009. Election petition was filed by one Rakesh Singh challenging
the election of respondent no.1. The ground of challenge was that respondent no.1 was not a citizen
of India. The said petition was dismissed wherein the Court held that so long as the certificate
granted to respondent no.1 under Section 5(1)(c) of the Citizenship Act was not cancelled or
withdrawn, the said respondent no.1 would continue to remain a citizen of India. It was asserted
that the said judgment is a judgment "in rem" upholding the status of respondent no.1 as a citizen of
India under the Citizenship Act. It was urged that in any case, the declaration of law being
delivered by the High Court is a binding precedent and would apply to the present facts.

34. On the issue of vires of the Citizenship Act, the learned Senior Counsel contended that
the vires of an Act can be considered in an election petition but contended that the vires of an Act
cannot be tried in an election petition on the basis of vague and indefinite pleas raised in the
election petition. Further, the cause of action for challenging the vires of the Act could only arise
when the order of citizenship dated 30th April, 1983 was challenged. The learned Senior Counsel
contended that the order of citizenship dated 30th April, 1983 has not been challenged and,
therefore, the Court should decline to answer an academic question.

35. On this issue, the learned counsel for the petitioner Sri H.S. Jain contended that the
question raised has not been decided by the High Court in the earlier two election petitions and, in
any case, the decisions given therein does not operate as res judicata. It was urged that the earlier
decisions given under Order 7, Rule 11 of the Code of Civil Procedure does not bar the petitioner
from filing the present election petition. In any case, the earlier decisions was not a decision "in
rem". The petitioner contended that the election petitioner raises triable issues, which has to be
decided on merits and, therefore, the application under Order 7, Rule 11 of the Code of Civil
Procedure should be dismissed.

36. The learned counsel has drawn a distinction between "citizen of India" and being "an
Indian citizen". The learned counsel for the petitioner urged that in Part II of the Constitution of
India while dealing with citizenship, Articles 5 to 10 of the Constitution uses the expression
"citizen of India". Article 11, which empowers Parliament to make law with respect to the
acquisition and termination of citizenship speaks of "citizenship" only and not of citizenship of
India. It was therefore, urged that Parliament cannot therefore, make any law conferring status of
"citizen of India" on anyone and if it does so, the parliamentary enactment would be ultra vires the
Constitution. The learned counsel for the petitioner contended that under the Constitution persons
have been categorized as persons, citizens and citizens of India. The learned counsel contended that
the rights and privileges conferred on citizens of India are not available to Indian citizens and
asserted that the provisions of the Citizenship Act, 1955, which confers the status of citizen of India
as distinguished from Indian citizen on a person other than the one in whom the citizenship vests by
right, i.e. by birth or by descent are ultra vires the Constitution. The learned counsel contended that
the right to contest an election is conferred only on a citizen of India as defined in Part II of the
Constitution. Respondent no.1 could not and is not a "citizen of India". It was urged that respondent
7 All. Ramesh Singh Vs Sonia Gandhi & Anr.

255
no.1 could not have cleared the status and qualify as a "citizen of India" solely by virtue of
registration under Section 5 of the Citizenship Act, 1955.

37. In order to appreciate the submission of the learned counsel for the parties on this
aspect, it would be essential to consider Article 11 of the Constitution, which for facility is
extracted hereunder:-

"11. Parliament to regulate the right of citizenship by law. - Nothing in the
foregoing provisions of this Part shall derogate from the power of Parliament to make any
provision with respect to the acquisition and termination of citizenship and all other matter
relating to citizenship."

38. To achieve the aforesaid object, parliament enacted the Citizenship Act, 1955. For
facility, Section 5(1)(c), Section 9 and Section 10 are extracted hereunder as it will have a bearing
to the case:-

"5. Citizenship by registration. - (1) Subject to the provisions of this section and
such other conditions and restrictions as may be prescribed, the Central Government may, on an
application made in this behalf, register as a citizen of India any person not being an illegal
migrant who is not already such citizen by virtue of the Constitution or of any other provision of
this Act if he belongs to any of the following categories, namely: -

(a) --------

(b) -------

(c) A person who is married to a citizen of India and is ordinarily resident in India
for seven years before making an application for registration.

9. Termination of citizenship. - (1) Any citizen of India who by naturalisation,
registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and
the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon
such acquisition or, as the case may be, such commencement, cease to be a citizen of India.

Provided that nothing in this sub-section shall apply to a citizen of India who,
during any war in which India may be engaged, voluntarily acquires, the citizenship of another
country, until the Central Government otherwise directs.

(2) If any question arises as to whether, when or how any citizen of India has
acquired the citizenship of another country, it shall be determined by such authority, in such
manner, and having regard to such rules of evidence, as may be prescribed in this behalf.
256 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Deprivation of citizenship. - (1) A citizen of India who is such by naturalisation
or by virtue only of clause (c) of article 5 of the Constitution or by registration otherwise than
under clause (b)(ii) of article 6 of the Constitution or clause (a) of sub-section (1) of section 5 of
this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the
Central Government under this section.

(2) Subject to the provisions of this section, the Central Government may, by order,
deprive any such citizen of Indian citizenship, if it is satisfied that -

(a) the registration or certificate of naturalisation was obtained by means of fraud,
false representation or the concealment of any material fact; or

(b) that citizen has shown himself by act or speech to be disloyal or disaffected
towards the Constitution of India as by law established; or

(c) that citizen has, during any war in which India may be engaged unlawfully
traded or communicated with an enemy or been engaged in, or associated with, any business that
was to his knowledge carried on in such manner as to assist an enemy in that war; or

(d) that citizen has, within five years after registration or naturalisation, been
sentenced in any country to imprisonment for a term of not less than two years; or

(e) that citizen has been ordinarily resident out of India for a continuous period of
seven years, and during that period, has neither been at any time a student of any educational
institution in a country outside India or in the service of a Government in India or of an
international organisation of which India is a member, nor registered annually in the prescribed
manner at an Indian consulate his intention to retain his citizenship of India."

39. The Citizenship Act, 1955 is an Act to provide for the acquisition and determination of
Indian citizenship. Acquisition of citizenship can be by birth (Section 3), by descent (Section 4), by
registration (Section 5) and by naturalisation (Section 6). Clause (c) of sub-section (1) of Section 5,
as amended by Act 6 of 2004, provides that a person who is married to a citizen of India and is
ordinarily resident in India for seven years before making an application for registration, may,
subject to satisfying other provisions including procedural ones, be registered as a citizen of India
by the prescribed authority of the Central Government. The Citizenship Act does not provide for
cancellation of a certificate of registration issued under Section 5. Section 9 speak of termination of
citizenship upon acquisition of the citizenship of another country which event entails cessation of
citizenship of India.