Miss Rosa Schimitt v. The Union of India

petitioner, Mr. V.B.S. Negi, Assistant Solicitor General with Mr. Ajay Singh Bisht, Standing Counsel for the Union of India and Mr. Subhash Upadhyay, Brief Holder for the State of Uttarakhand.

#2. The petitioner is a German Lady and according to the averments in the writ petition she came to India in 1959 on a limited period visa but after the expiry of the period of visa continued to stay in India. Consequently, an order was passed by the Home Ministry on 27.2.1997 directing the petitioner to leave the country. Following the above order (which is Annexure-CA1 to the counter affidavit, filed before the High Court of Judicature at Allahabad by the Union of India), consequent order was passed by the Superintendent of Police dated 24.5.1997 (Annexure-10 to the writ petition) directing the petitioner to leave India within 15 days. It is this order, which was challenged by the petitioner before the Allahabad High Court while an interim order was granted by this Court where the effect and operation was stayed. This writ petition was filed before the High Court of Judicature at 2 Allahabad as Writ Petition No. 20034 of 1997, which subsequently transferred to this court under Section 35 of the U.P. Reorganization Act, 2000 and renumbered as Writ Petition No. 2094 (MS) of 2007. All the same, a learned Single Judge of the Allahabad High Court while entertaining the writ petition passed an interim order in favour of the petitioner, which reads as follows:- (cid:147)Counsel appearing for Union of India prays for and is granted six weeks(cid:146) time to file counter affidavit. List for admission thereafter showing the name of Sri R.C. Shukla as counsel Ist respondent. Standing Counsel appearing for respondents No. 2 and 3 may also file counter affidavit within the same period. for the In the meanwhile having regard to the allegations that the petitioner is residing in India since 1959 and is engaged in literary and cultural activities as also the allegation that she has applied for grant of naturalisation of her citizenship under Section 6 of Citizenship Act, 1955 which application, it is stated has not been disposed of as yet, it is hereby provided that the operation of the impugned order dated 24.5.97 (Annexure- 10 to the writ petition) shall remain stayed.(cid:148)

#3. With the strength of the aforesaid order, the petitioner has not been deported. In pure legal terms, the petitioner is presently an unauthorized immigrant or at least her stay in India is without authority of law. The petitioner was granted an interim relief by a learned Single Judge of the Allahabad High Court for the simple reason that her application for grant of citizenship by naturalisation under Section 6 of the Citizenship Act, 1955 has not been disposed of as yet.

#4. The petitioner contends that she is presently 80 years of age and has adopted Hindu Religion and desires to take the citizenship of India for which she has also 3 moved an application under Section 6 of the Citizenship Act, 1955. Part-II of the Constitution of India pertains to the Citizenship. Article 5 reads as follows: the commencement of

#5. Citizenship at the commencement of the Constitution-At Constitution every person who has his domicile in the territory of India and- (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately commencement, shall be a citizen of India. preceding

#5. Apart from this the constitution gives a right to the Parliament to make any provision with respect to acquisition and termination of citizenship and all other matters relating to citizenship Article 11 reads as follows:-

#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 matters relating to citizenship.

#6. Under the aforesaid provisions of Citizenship Act, 1955 has been enacted. Section 6 relates to natural citizenship, which reads as under:

#6. Citizenship by naturalization.-(1) Where an application is made in the prescribed manner by any person of full age and capacity 2[not being an illegal migrant] for the grant of a certificate of naturalization to him, the Central Government may, if satisfied that the applicant is qualified for naturalization under the provisions of the Third Schedule, grant to him a certificate of naturalization: Provided that, if in the opinion of the Central Government, the applicant is a person 4 who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may waive all or any of the conditions specified in the Third Schedule.

#7. Mr. Rajendra Dobhal, Senior Advocate appearing for the petitioner states that the petitioner has already moved an application before the concerned authority under Section 6 of the Indian Citizenship Act, 1955. However, Mr. V.B.S. Negi, Senior Advocate appearing for the Union of India has rightly pointed out that such an application of the petitioner cannot be allowed at the moment as the petitioner is still technically an illegal migrant as Section 6 creates exception to illegal migrant defined under Section 2(b)(1) of the Act, which reads as follows:-

#2. Interpretation.-(1) In this Act, unless the context otherwise requires,- (a) (cid:133) 1[(b) (cid:147)illegal migrant(cid:148) means a foreigner who has entered into India- (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or (ii) (cid:133);]

#8. It is an admitted position that the petitioner has stayed or rather overstayed in India without any authority of law. However, considering the peculiar facts and circumstances of the case, it would meet the ends of justice if the petition be disposed of with a direction to the concerned authority to dispose of the application of the petitioner on the terms below:- The petitioner shall move an appropriate application before the concerned authorities. The present application of the petitioner along with the pending application of the petitioner before the concerned 5 authority shall be looked into and thereafter appropriate order on the said applications be passed. All the same, purely on a humanitarian measure considering that the petitioner is a lady and 80 years of age, she will not be deported for further period of six months from the date a certified copy of this order is issued to the petitioner. The petitioner is at liberty to make all possible effort for moving the authority i.e. the Union of India and other authority for expeditious disposal of the application for grant of citizenship by naturalisation as she wants, as already referred above. It is made clear that except for the reasons stated, no interference has been called for by this court. A copy of this order may be sent to the concerned office at Ministry of Home Affairs as well as District Magistrate, Uttarkashi for compliance of this order. However, it is made clear that the order, which has presently been impugned in the writ petition, have been passed in accordance with law and therefore, so far the challenge to the validity of the said order is concerned it cannot be sustained. The writ petition fails to that extent.

#9. Interim order granted to the petitioner on 10.6.1997 is also vacated. Having stated above, it is expected that the authorities of the Central Government, who have to decide the citizenship of the petitioner shall consider all relevant aspects given under the provision of the Citizenship Act, 1955 including the fact that the petitioner is a lady and 80 years of age while considering her case for grant of citizenship under the Citizenship Act, 1955. 6

#10. With the aforesaid direction, the writ petition is disposed of.

#11. No order as to costs. (Sudhanshu Dhulia, J.) Dated: 29.11.2011 VKG