In the present case the petitioner sought for removal of the editor of a leading newspaper in India who subsequently resigned during the pendency of the suit thereby rendering the newspaper infructuous. [DR. SUBRAMANIAN SWAMY V.THE REGISTRAR, OFFICE OF REGISTRAR FOR NEWSPAPERS OF INDIA, Civil petition No.2986/2013, Decided on, December 17, 2013.]1
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on: December 17, 2013
+ W.P.(C) No.2986/2013
DR. SUBRAMANIAN SWAMY .....Petitioner
Represented by: Petitioner in person
versus
THE REGISTRAR, OFFICE OF REGISTRAR
FOR NEWSPAPERS OF INDIA .....Respondent
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V.KAMESWAR RAO
1. The writ petitioner seeks a direction from this Court to rectify what
the petitioner perceives to be a lacuna in the Press and Registration of
Books Act, 1867 (hereinafter referred to as the said Act) regarding the
definition of ‘Editor’ in the context of the proviso to sub-Section 8 of
Section 5 of the said Act.
2. The prayer in the petition to remove respondent No.3 from the post
of Editor of the daily newspaper : ‘The Hindu’, was rendered infructuous
W.P.(C) No.2986/2013 Page 2 of 23
because during the pendency of the writ petition the respondent No.3
resigned from the post of Editor of ‘The Hindu’ and thus the issue was
argued in Court on the larger issue : Whether citizenship of India should
be the pre-requisite for a person to be appointed as the Editor of a
publication in India.
3. A journey, concerning the interpretation of a statute, must
commence by highlighting the statutory provision around which the debate
centers, including its historical perspective, and thus we straight away
proceed to note the applicable statutory provisions.
4. The word ‘Editor’ has been defined by the said Act:-
„Editor‟ means the person who controls the selection of the
matter that is published in a newspaper.
5. The proviso to sub-Section 8 of Section 5 of the said Act, which is
the focus of attention, reads as under:-
“Provided that no person who does not ordinarily reside in
India or who has not attained majority in accordance with the
provisions of the Indian Majority Act, 1875 (9 of 1875), or of the
law to which he is subject in respect of the attainment of
majority, shall be permitted to make the declaration prescribed
by this Section, nor shall any such person edit a newspaper.”
6. A plain reading of the proviso would make it apparent that it
concerns two distinct categories of persons who are the subject matter of
the proviso. The first is those who are obliged to make a declaration
prescribed by Section 5; and the second are those who edit a newspaper.
As regards the persons who are obliged to make a declaration prescribed
by the Section, sub-Section 2 would evidence that they would be the
printer and/or the publisher of a newspaper. The second would be the
persons who edit a newspaper.
W.P.(C) No.2986/2013 Page 3 of 23
7. We are concerned in the writ petition with the second category i.e.
the persons who edit newspapers.
8. The proviso requires that the persons making the declaration
required by Section 5 as also persons who edit a newspaper should
‘ordinarily reside in India’.
9. Originally enacted in the year 1867, the proviso was sans the words
‘who does not ordinarily reside in India or’. The proviso as originally
enacted read as under:-
“Provided that no person who has not attained majority in
accordance with the provisions of the Indian Majority Act, 1875
(9 of 1875), or of the law to which he is subject in respect of the
attainment of majority, shall be permitted to make the
declaration prescribed by this Section, nor shall any such person
edit a newspaper.”
10. The said Act, as proclaimed by its preamble, was enacted to regulate
the printing press, newspapers and books. Newspapers would include
periodicals as per the definition of a newspaper.
11. The statement of objects and reasons to Act No.26 of 1960 : ‘The
Press and Registration of Books (Amendment) Act, 1960’, concerning the
amendment to the proviso to sub-Section 8 of Section 5 of the said Act
clarifies, that though the Act contemplated that the printer, publisher and
editor of a newspaper should ordinarily be residents in India, there was no
specific provision to this effect in the Act and thus the proposed
amendment was to make clear, beyond the possibility of doubt, what was
already implicit in the statute book.
12. The law was well-settled by the year 1960, on the subject of the
civil and criminal liability of the printer, publisher and the editor of a
newspaper, with reference to the contents of the publication. Whereas a
W.P.(C) No.2986/2013 Page 4 of 23
printer and publisher were vicariously liable for the matter published in a
newspaper, the editor was personally liable for the same because of the
definition of the editor; being the person who controls the selection of the
matter published in a newspaper.
13. The jural principle warranting the person concerned to be ordinarily
resident of the country in which the publication was made would be
discussed by us at the appropriate stage of our decision and thus we
proceed now to note the reasoning advanced by the petitioner in support of
the prayer made in the writ petition : to read the current statute to include
being a citizen of India, as a pre-requisite for being regarded as ordinarily
resident in India. The petitioner has two strings to his bow. The first is
that the foreign direct investment policy of the Government of India, in the
domain of publications, allows 74% foreign direct investment with the precondition
that in the print media at least three-fourth of the board of a print
media company must be Indians and all key editorial posts must also lie
with resident Indians. The arrow shot, using the first string in the bow, is
that it would be a contradiction if being an Indian resident i.e. a citizen of
India, is a qua non for a person to be an editor of a publication if the
holding company has a foreign direct investment up to 74%, but a foreigner
i.e. a person who is not a citizen of India could function as the editor of a
newspaper the holding company whereof has 100% domestic capital. The
arrow shot using the second string in the bow is the argument that the press
is an important pillar in a democracy. The freedom of speech guaranteed
by the Constitution of India, as held by the Supreme Court in the decisions
reported as AIR 1963 SC 1811 STC Vs. CTO, (1971) 3 SCC 104 Anwar Vs.
State of J&K and (1991) 3 SCC 554 Louis De Raedt Vs. UOI is only to the
W.P.(C) No.2986/2013 Page 5 of 23
citizens of India and not to foreigners; for that matter the fundamental
rights under Article 19 of the Constitution are guaranteed in favour of the
citizens of India and not foreigners present in India. This has been
recognized even by the Parliament evidenced by the fact that the ‘Press
and Registration of Books and Publications Bill, 2011’, pending
consideration before the Parliament, has proposed to define editor to mean
a person who is a citizen of India and ordinarily resides in India and who
controls the selection of the matter that is brought out in a publication.
With the march of times, the arrow shot through the second string in the
bow, requires to read the current statute purposively to embrace the
concept of citizenship and weave the same in the concept of ‘ordinary
reside’. To put it pithily, the arrow shoots in the trajectory to read the
proviso as follows:- Provided that no person who does not ordinarily
reside in India and is not a citizen of India or who has not attained
majority in accordance with the provisions of the Indian Majority Act,
1875 (9 of 1875), or of the law to which he is subject in respect of the
attainment of majority, shall be permitted to make the declaration
prescribed by this Section, nor shall any such person edit a newspaper.
Meaning thereby to read into the proviso the words ‘and is not a citizen of
India‟.
14. At least one interpretative correction is warranted in the statute and
the same is that the word ‘or’ in the expression ‘provided that no person
who does not ordinarily reside in India or who has not attained majority in
accordance with the provisions of the Indian Majority Act, 1875‟ has to be
read as ‘and’.
W.P.(C) No.2986/2013 Page 6 of 23
15. But this is just by the way. The issue before us is not whether the
word ‘or’ should be read as ‘and’ i.e. as a conjunction and not
disjunctively.
16. Back to the meat of the matter. Does the rule of purposive
interpretation warrants its application to read the proviso as suggested by
the petitioner.
17. The argument would be something like this : Burke said ‘There were
three Estates in Parliament; but in the Reporters Gallery yonder, there sat
a fourth Estate more important than they all. It is not a figure of speech, or
a witty saying; it is a literal fact. Printing, which comes necessarily out of
writing, I say often, is equivalent to democracy : invent writing, democracy
is inevitable. Whoever can speak, speaking now to the whole nation,
becomes a power, a branch of government, with inalienable weight in
lawmaking, in all acts of authority. It matters not what rank he has, what
revenues or garnitures : the requisite thing is that he have a tongue which
others will listen to; this and nothing more is requisite‟. If being a citizen
of India is the pre-requisite of the three pillars of democracy : The
Legislature, The Executive and The Judiciary; no person can be elected to a
legislature unless he is a citizen of India, no person can hold a public post
if he is not a citizen of India, no person can hold the office as a Judge if he
is not a citizen of India, it would be illogical that a person who is the pivot
of the fourth Estate is not to be a citizen of India.
18. Historically, the media was born as an organ of the people against
feudal oppression. Media has played a major role in the transformation of
feudal societies and writing was used as a powerful medium of change by
great writers like Voltaire, Thomas Paine, Rousseau etc. Media was used
W.P.(C) No.2986/2013 Page 7 of 23
by people to express themselves, and since the established organs of power
were in the hands of a few, a new organ i.e. print media was created and
came to be known as the Fourth Estate because it was the watch dog of the
people to keep a check on the other organs and to give the people a forum
to voice their opinion. The Constitution Assembly Debates (Vol.IX dated
August 31, 1949) records a statement in the Constituent Assembly by
Dr.Naziruddin Ahmed and we quote:-
“Mr. Naziruddin Ahmad : The matter would really depend not
upon the intention, because, that is a matter which cannot be
understood, ascertained or measured except from the words of
the statute. It can only be judged by the terms of the Act and by
the effect that it may produce. The main argument of the
American Court was to the effect that though it is a mere, tax
and apparently not in derogation of freedom of opinion and
freedom of expression, still it will have the effect of reducing the
circulation of many newspapers. We cannot therefore, go into
the intention, whether it is good or whether it is bad, because
that is a matter which cannot be ascertained otherwise than
through the wording. We are to consider the tax mainly by its
effect. There is no doubt that the tax will have the effect of
suppressing many newspapers; in that way it will curtail
freedom of expression and of opinion if the lax has the effect of
reducing the circulation however slightly. It is well known, Sir,
that a free press stand as an interpreter between the
Government and the people. To allow it to be fettered is to
fetter ourselves.
Then, if course, there is the question of merit; but that is a
different matter But as we have guaranteed the freedom of
expression and opinion by article 13, clause (1), and also taken
some power to curtail the right under clause (2) in specified
directions, there should be no further attempt to curtail these
rights I submit that this is a matter which has to be carefully
considered.
W.P.(C) No.2986/2013 Page 8 of 23
I readily admit the fact that there is no question of intention
involved. We cannot attribute any bad intention to the legislature
at all. But under the guise of a tax freedom of opinion will be
curtailed consciously or unconsciously.
Sir, one of the elements which ensures freedom in a
democratic country is the Press. It is called the Fourth Estate
of the Realm, the other three being the Legislature, the
Judiciary and the Executive. Any attempt in any way to curtail
the liberty of the press should, therefore be carefully
considered by us.” (Emphasis supplied)
19. In the decision reported as 2011 (9) SCALE 532 Sanjoy Narayan
Editor in Chief Hindustan & Ors. Vs. Hon'ble High Court of Allahabad
through Registrar General, the Supreme Court observed as under:
“5. The media, be it electronic or print media, is generally
called the fourth pillar of democracy. The media, in all its forms,
whether electronic or print, discharges a very onerous duty of
keeping the people knowledgeable and informed.
6. The impact of media is far-reaching as it reaches not only the
people physically but also influences them mentally. It creates
opinions, broadcasts different points of view, brings to the fore
wrongs and lapses of the Government and all other governing
bodies and is an important tool in restraining corruption and
other ill-effects of society. The media ensures that the individual
actively participates in the decision-making process. The right to
information is fundamental in encouraging the individual to be a
part of the governing process......”
20. The Oxford Dictionary defines residence as ‘dwell permanently or
for a considerable time; to have one‟s settled or usual aboard, to live in or
at a particular place‟. Black’s law dictionary defines reside as ‘live,
dwell, abide, stay, remain, lodge, settle oneself or a thing in a place, to
have a settled aboard for a time, to have one‟s residence or domicile’.
Thus, the word residence has different meanings and must be distinguished
W.P.(C) No.2986/2013 Page 9 of 23
from a mere presence or the state of being found in a country. As per the
decision reported as (1971) 2 QB 602 Brokelmann Vs. Barr, it was held
that prima facie at least the residence involved some degree of
permanence. The view accepted the definition of reside in Oxford English
Dictionary to mean to dwell permanently or for a considerable time; to
have one’s settled or usual aboard.
21. In the decision reported as AIR 1963 SC 1521 Jagir Kaur Vs.
Jaswant Singh, discussing residence and contrasting the same with
domicile, the backdrop facts being that Jagir Kaur and Jaswant Singh were
married and were residing in Africa and upon return of the wife to India
even Jaswant Singh returned on a five months’ leave and the couple
resided in the house of Jaswant Singh’s mother at Hans Kalan and returned
to Africa. Jagir Kaur initiated proceedings for maintenance under Section
488 of the Code of Criminal Procedure, 1898 in India and the issue of
jurisdiction was raised by Jaswant Singh. Section 488 (8) of the Code read
: ‘Proceedings under this Section may be taken against any person in any
district where he resides or is, or where he last resided with his wife, or,
as the case may be, the mother of the illegitimate child.‟ It is apparent that
the crucial words of the provision are ‘resides’, ‘is‟ and ‘where he last
resided with his wife’. In paragraph 6, the Supreme Court observed:-
“The first word is resides. A wife can file a petition against her
husband for maintenance in a Court in the District where he
resides. The said word has been subject to conflicting judicial
opinion. In the Oxford Dictionary it is defined as : „dwell
permanently or for a considerable time; to have one‟s settled or
usual abode; to live in or at a particular place‟. The said
meaning, therefore, takes in both a permanent dwelling as well
as a temporary living in a place. It is, therefore, capable of
different meaning, including domicile in the strictest and the
W.P.(C) No.2986/2013 Page 10 of 23
most technical sense and a temporary residence. Whichever
meaning is given to it, one thing is obvious and it is that it does
not include a casual stay in, or a flying visit to a particular
place. In short, the meaning of the word would, in the ultimate
analysis, depend upon the context and the purpose of a
particular statute. In this case the context and purpose of the
present statute certainly do not compel the importation of the
concept of domicile in its technical sense. The purpose of the
statute would be better served if the word „resides‟ was
understood to include temporary residence. The juxtaposition of
the words „is‟ and „last resided‟ in the sub-section also throws
lights on the meaning of the word „resides‟. The word „is‟, as we
shall explain later, confers jurisdiction on a Court on the basis
of a casual visit and the expression „last resided‟, about which
also we have something to say, indicates that the Legislature
could not have intended to use the word „resides‟ in the
technical sense of domicile. The word „resides‟ cannot be given
a meaning different from the word „resided‟ in the expression
„last resided‟ and, therefore, the wider meaning fits in the setting
in which the word „resides‟ appears.”
22. The judgment guides that the concept of a permanent dwelling as
well as a temporary living are capable of different meanings which may
include domicile in the strictest and the most technical sense. The
judgment further guides that it is the rule of purposive interpretation which
should guide the Court to adopt said concept of residence which furthers
the legislative intent. In paragraph 5, the Court noted that the proceedings
under the Section are in the nature of civil proceedings providing a
summary remedy to a helpless wife and thus jurisdiction of the Court with
reference to residence must be clothed adopting said concept of residence
which furthers the cause of the helpless wife.
23. The decision needs a little explanation in the context of the two lines
in paragraph 6 being : The said meaning, therefore, takes in both a
W.P.(C) No.2986/2013 Page 11 of 23
permanent dwelling as well as a temporary living in a place. It is,
therefore, capable of different meaning, including domicile in the strictest
and the most technical sense and a temporary residence.
24. It is not to be understood that ordinary residence and domicile are
the same. In the decision reported as 1983 (2) AC 309 R. Vs. Barnet
London Borough Council it was held that Courts have to approach
‘ordinarily resident’ on the basis that it bears its modified meaning and is
not modified by the statutory context and that the concept of ordinarily
resident has to be understood with the reference to a right of a Board. It is
not a term of art. It is a question of fact. Residence adopted voluntarily
and for settled purpose becomes ordinary residence. Except for
matrimonial jurisdictions to equate ordinary residence with domicile
would be a dangerous confusion. After surveying decisions pertaining to
tax, matrimony and immigration it was observed that Parliament in
England has evinced a strong legislative difference between ordinary
residence and domicile and the choice has to be respected by the Courts.
25. In the Indian context said view is apposite and we only emphasize
that whereas law recognizes a person having more than one residence and
a person being ordinarily resident of two places, law does not recognize a
person having more than one domicile.
26. Another useful decision would be the Constitution Bench decision
of the Supreme Court reported as (2006) 7 SCC 1 Kuldeep Nayar & Ors.
Vs. UOI & Ors. wherein the Supreme Court was concerned with a
challenge to the Representation of the People (Amendment) Act, 40 of
2003, the effect whereof was the requirement of ‘domicile’ in the State
concerned for getting elected to the Council of States being deleted, which
W.P.(C) No.2986/2013 Page 12 of 23
according to the petitioner violated the principle of federalism; a basic
structure of the Constitution as per the petitioner. There was a further
challenge to the amendments concerning open ballot system introduced
violating the principle of secrecy pleaded to be essential for a free and fair
election. The argument was that the test of ‘ordinary residence’ as
inherent in Section 3 of the RP Act, 1951 could be modified by Parliament
only so as to provide some other characteristic of effective representation.
After discussing the concept of federalism including those of Canada and
the United States of America as also a plethora of decisions in India, the
Supreme Court noted a gradual shift on the concept of representation as a
National Institution rather than as a champion of local interest warranting a
change with time in the concepts of residence and representative (see para
237). The Supreme Court observed that there cannot be one uniform,
consistent and internal definition or connotation of concepts because they
undergo change with the passage of time and that words, expressions and
concepts cannot be decided etymologically by reference to dictionaries.
The Supreme Court noted the decision reported as (1980) 3 All ER 689
Cicutti Vs. Suffolk County Council to bring home the point that depending
upon the context of a statute the word ‘resident’ qualified by the word
‘ordinarily’ may or may not ensure a nexus between the person and the
place in question i.e. the place of residence.
27. Thus, ordinarily resident and domicile being different jural
concepts, the distinction has to be maintained unless, as in matrimonial
laws, the context of the statute may warrant ordinarily resident to be
equated with domicile.
W.P.(C) No.2986/2013 Page 13 of 23
28. The decisions reported as (1868) L.R. 1 SC. & Div. 307 Bell Vs.
Kennedy, 154, 157, 51 N.E. 531, 532 (1898) Bergner & Engel Brewing
Co. VS. Dreyfus and (1964) P.356 (CA) Garthwaite Vs. Garthwaite guide
us that domicile is an idea of law which differs from the notion of
permanent home in two principal aspects. Firstly, the elements required
for acquisition of domicile go beyond those required for a permanent
home. In order to acquire a domicile by choice in a country (for otherwise
domicile is acquired by birth) a person must intend to reside in a country
permanently and indefinitely. Secondly, domicile differs from the concept
of a permanent home inasmuch as law in some cases states that a person is
domiciled in a country whether or not he has his permanent home there.
29. It is apparent that the term ‘ordinarily resident’ is not derived from
common law but is a creation of the legislature. It is for this reason that
the use of this term has exercised the minds of Judges on several
occasions. The fundamental propositions evolved by the Courts in
England for determining the application of this term has been to construe
the same according to the ordinary and natural meaning of those words
unless the statutory framework requires a different meaning. As per
‘Dicey and Morris’ on the conflict of laws 10th Edition, 1980 Page 111 the
purpose of determining a person’s domicile is to ‘connect him for the
purpose of a particular inquiry with some system or rule of law’. That law
‘becomes the measure of his personal capacity, upon which his majority or
minority, his succession and testacy or intestacy must depend’. This
would determine the forms of matrimonial relief available to him,
legitimacy of his children would also depend on this. It is a neutral rule of
law for determining that system of personal law with which an individual
W.P.(C) No.2986/2013 Page 14 of 23
has the appropriate connection so that it will govern his personal status and
questions relating to him and his affairs.
30. A word needs to be spoken about nationality and domicile before
we proceed to discuss, the ultimate chapter of our destination i.e. the
concept of citizenship. In a State, a person may be a Member of its civil
society as distinguished from its political society; or he may be a member
of both. His membership of the political society determines his political
status and we find that this political status links him to not only nationality
but even citizenship for from either of the two i.e. nationality or
citizenship, flows his permanent allegiance or personal association with
his sovereign. His membership of the civil society, of a particular locality,
determines his civil status, and this is what we understand as flowing from
domicile. It is at this juncture that the inherent differences in the concepts
of domicile, residence, nationality and citizenship begin to become distinct
and yet remain blurred. The political status known as nationality and the
civil status known as domicile connect the individual with the sovereign
state distinctly. Whereas nationality depends, apart from neutralization, on
the place of birth or parentage; domicile is constituted by residence ‘animo
mandedi’. It follows that a man may be national of one country but
domiciled in another.
31. According to Aristotle, in ancient Greece the population of Attica
was divided into groups which were brotherhoods (phratriai) and of clans
(gene). Groups of brotherhoods formed tribes (phylai). The entire citizen
body was thus included in the tribes and brotherhoods but the wealthy
formed the clans. When monarchy was abolished through the efforts of
the clans, the citizenship of the members of the brotherhoods was in name
W.P.(C) No.2986/2013 Page 15 of 23
only because they had not civil rights. Draconian reforms created four
classes according to wealth and Solon gave to the four classes the right of
act in a political capacity (ecclesia) and also in a judicial capacity (heliaia)
and thus earned the title ‘the first champion of the people’. But even under
him, the concept of citizenship was immature. The first recognition of
citizenship came with Cleisthenes under whose reforms there was a
distribution of the population on a geographical basis and an
enfranchisement of persons of pure or partial Athenian descent. Resident
foreigners had inter-married and though there was a partial recognition of
foreigners permanently settled (domiciled) in Athens even from the days
of Peisistratus there was no recognition of the offsprings of mixed
marriages as citizens. These were added to the list of citizens because
citizenship no longer depended on membership of the phratries. The state
of affairs continued till Pericles abrogated the enlightened measure. He
limited citizenship to those of Anthenian descent on both sides. Had he
come earlier some famous men of Athens like Themistocles would have
been barred from not only office but other civic rights. It is not necessary
to follow the history of Athens further. It is reasonable to believe that all
other States in Greece except Sparta followed this kind of citizenship. The
Spartans had their own system of rule with two kings and an elected
council (gerusia) elected by the citizens which was both advisory and
judicial. There was also an assembly of all citizens over twenty called the
appella which elect the magistrates and met monthly. The right of vote in
the election of the gerusia and membership of the appellate was open to
those who were selected at the birth by the partiate. All children were
inspected at birth by the heads of the tribe and those who were sickly were
W.P.(C) No.2986/2013 Page 16 of 23
exposed in a ravine of Mt.Taygetus and of the others, those that lived, all
boys were taken away at the age of seven and trained as citizens. All the
Hellenic States followed Athens but Crete perhaps was influenced by
Sparta.
32. In the opinion reported as AIR 1963 SC 1811 STC Vs. CTO & Ors.
noting treatise on International Law on the concept of citizenship and
nationality, often used interchangeably, in paragraph 96 the Supreme
Court observed as under:-
“96. Citizenship and nationality emphasize different facets of a
single concept of association with or membership of a political
community. The form and content of the association have varied
in their historical evolution with the complexion of the
governmental machinery, but in essence they denote the relation
which a person bears to the sovereign authority. Citizenship is
the relation that a person bears to the State in its national or
municipal aspect; nationality appertains to the domain of
International Law, and represents the political status of a
person, by virtue of which he owes allegiance to a particular
sovereign authority. `Citizen' and 'national' are frequently used
as interchangeable terms, but the two terms are not synonymous.
Citizenship in most societies is the highest political status in the
State, it is employed to denote persons endowed with full
political and civil rights. There are in some States nationals who
though owing allegiance, lack citizenship such as those belong
to colonial possessions which are not included within the
metropolitan territory, and do not participate in the
Government. Even in States where association of nationals in the
governmental machinery does not exist or is too tenuous to be
effective, the national endowed with capacity to exercise
personal and political rights may be called a citizen. Again there
may be citizens even in States having a form of government,
which permits an effective association of its citizens with the
administration, who do not participate in the government, or
who by reason of sex, minority or personal disqualification are
W.P.(C) No.2986/2013 Page 17 of 23
incompetent or are unable to participate. Citizenship is therefore
membership of a jural society investing the holder with all the
rights and privileges which are normally enjoyed by its
nationals, and subjecting him to corresponding duties;
nationality is the link between a person and a State, ensuring
that effect be given to his rights in international affairs. Every
citizen is a national, but every national is not always a citizen.
The tie which binds the national and the citizen is the tie of
allegiance to the State; it arises by birth, naturalization or
otherwise in a political society which is called a State, Kingdom
or Empire.”
33. But one thing is clear. Citizenship is a term of municipal law and
denotes the possession, within the particular state of full civil and political
rights. The conditions on which citizenship is acquired are regulated by
municipal law. Domicile is different from citizenship inasmuch as a
person may have one nationality or citizenship and a different domicile or
he may have a domicile but no nationality. Domicile may not affect or
alter a person’s nationality. Domicile is concerned with the permanent
home/abode of a person. But domicile has no relevance to the
applicability of municipal laws. Citizenship on the other hand connects a
person with municipal laws of the country. In order to accord civil rights
to an individual and allow him to hold posts in the Government or
participate in the democratic processes of a State, a high-degree of
allegiance and connection with the State is imperative. Full political rights
are given only to citizens and not to those who have their domicile in a
State. Citizenship can invoke different meanings in varying contexts. It
has been described both as an instrument and an object of closure. As an
instrument of closure it is pre-requisite for the enjoyment of certain rights
or for participation in certain types of interaction. As an object to closure
W.P.(C) No.2986/2013 Page 18 of 23
it is status to which access is restricted. In other words citizenship
includes access to a bundle of rights and also the status of membership
itself, the identity of citizen. Thus, whereas citizenship is the public law
status while domicile and ordinary resident are the civil law status in the
private law context. Citizenship is a political concept and political rights
remain at its center. In the decision reported as AIR 1955 SC 334
D.P.Joshi v. The State of Madhya Bharat & Anr., the Supreme Court held
as under:-
“7.…Under the Constitution, article 5, which defines
citizenship, itself proceeds on the basis that it is different
from domicile, because under that article, domicile is not
by itself sufficient to confer on a person the status of a
citizen of this country.”
34. Considering whether a company incorporated under the Indian
Companies Act prior to the Constitution could claim protection of
fundamental rights under Art. 19(1)(g) of the Constitution of India in the
decision reported as AIR 1957 SC 699 The State of Bombay v. R.M.D.
Chamarbaugwala, it was observed as under:-
“…„Citizen‟ has not been defined by the Constitution and the
only provision which is relevant is the provision contained in
Art. 5. But that article only deals with the citizenship at the
commencement of the Constitution and it lays down who was
a citizen at the commencement of the Constitution
....although domicile is a question of private international
law, rights and acquisition of citizenship is a creation of
municipal law and it is only Parliament by municipal law
that can determine who is a citizen.” (Emphasis supplied)
35. In the decision reported as AIR 1984 SC 1420 Dr.Pradeep Jain &
Ors. v. Union of India & Ors., the Supreme Court observed as under:
W.P.(C) No.2986/2013 Page 19 of 23
“ 8. Now it is clear on a reading of the Constitution that it
recognizes only one domicile namely, domicile in India.
Article 5 of the Constitution is clear and explicit on this point
and it refers only to one domicile, namely, "domicile in the
territory of India." Moreover, it must be remembered that
India is not a federal state in the traditional sense of that
term. It is not a compact of sovereign states which have come
together to form a federation by ceding a part of their
sovereignty to the federal states. It has undoubtedly certain
federal features but it is still not a federal state and it has
only one citizenship, namely, the citizenship of India. It has
also one single unified legal system which extends
throughout the country. It is not possible to say that a
distinct and separate system of law prevails in each State
forming part of the Union of India…The concept of
'domicile' has no relevance to the applicability of municipal
laws, whether made by the Union of India or by the States.
It would not, therefore, in our opinion be right to say that a
citizen of India is domiciled in one state or another forming
part of the Union of India…” (Emphasis supplied)
36. Having understood clearly that citizenship, domicile and ordinarily
resident are distinct legal concepts, the question would arise whether on
the argument made by the petitioner, the rule of purposive interpretation or
ongoing construction would propel to read the statute as urged by the
petitioner.
37. The argument of the petitioner was that with the march of times,
words and phrases in a statute have to be given a meaning relevant to the
time period of history in which they have to be understood to give effect to
the legislative intent.
38. Where words or phrases have a known legal meaning and content, it
has to be presumed that while legislating, the legislature has used the word
or the phrase knowing its legal meaning and content. Further, legislature
W.P.(C) No.2986/2013 Page 20 of 23
is presumed to intend that in construing an Act the Court, by advancing the
remedy which is indicated by the words of the Act for the mischief being
dealt with, and the implications arising from those words, would aim to
further every aspect of the legislative purpose. Harmonizing the said two
presumptions, in the context of the Rule of purposive construction, it
logically follows that the pre-requisite of applying the Rule of purposive
construction is a grammatically ambiguous enactment or an enactment
capable of two interpretations or a patent legislative omission. Three
conditions must be fulfilled in order to justify taking recourse to straining
the language. Firstly, from a consideration of the provisions of the
enactment read as a whole to determine precisely what was the mischief
intended to be remedied i.e. the purpose of the legislation; secondly, it
should be apparent that the draftsman had, by inadvertence, overlooked
and so omitted to deal with, an eventuality that required to be dealt with if
the purpose of the Act was to be achieved; and thirdly, it was possible to
state with certainty what were the additional words that would have been
inserted by the draftsman and approved by the legislature had its attention
been drawn to the omission before the bill passed into law. It would thus
be apparent that where the Court is unable to find out the purpose of an
enactment, or is doubtful as to its purpose, the Court is unlikely to depart
from the literal meaning.
39. Now, the purpose of the legislation requiring an editor to be an
ordinary resident in India is not expressly forthcoming from the statement
of purpose/objects and reasons of the enactment, but one can discern the
same. The same being the personal liability of the editor for the contents
of the publication and since civil and criminal liability is fasten by law if
W.P.(C) No.2986/2013 Page 21 of 23
the contents of a publication are found to be defamatory, the requirement
of the editor of a publication being available to be answerable to the
Courts established by law. He should be a person available within the
territorial jurisdiction of the Courts of India and thus must have his
residence in India which must not be a fleeting residence but must be of a
permanent nature.
40. The purpose of the statute would not be furthered, and in any case
not diminish, if the person concerned is not a citizen of India. Thus, the
Rule of purpose construction does not warrant the statute to be read as
suggested by the petitioner.
41. That takes us to the second limb of the Rule of construction, being
purposive in its historical content.
42. The development of the Rules of interpretation of statutes, we find
have dealt with the Rule pertaining to updating the language of an Act in
the context of the time in which a word or a phrase has to be construed
with reference to the principles of contemporanea exposition. It means that
with regard to updating, it has to be ascertained whether the Act is
intended to develop in meaning with developing circumstances or is
intended to be of unchanging effect i.e. whether the Act can be called an
ongoing Act or a fixed time Act. Whereas it may be presumed that the
legislature intended the Court to apply to an ongoing Act a construction
that continuously updates its words to allow for changes since the Act was
initially framed (an updating construction). For the enactment would be
treated as always speaking. This would mean that the language of the Act,
though necessarily embedded in its own time, has to be construed in the
current time according to the need. A fixed time Act has to be applied in
W.P.(C) No.2986/2013 Page 22 of 23
the same way whatever changes might occurred after its passing.
Updating construction is therefore not applied. How to determine whether
the Act is an ongoing or a fixed time Act? The meaning understood at the
time it was passed and its meaning today would determine the same and
for this reference has to be made to contemporary sources (contemporanea
exposition).
43. So understood, we are doubtful whether the Rule of updating
construction would be applicable for the reason the legal concept of
ordinarily resident, domicile and citizenship have remained unchanged
since when the Act was passed till today.
44. It may be true that in today’s context, media, both print and
electronic, have become much more powerful due to their reach and the
evolving concept of what is called paid news. As literacy increases the
media becomes powerful and influences the political and social thinking of
the targeted audience. It may be true that citizenship kindles a sense of
patriotism and loyalty and thus it may be desirable that a person who is not
a citizen of India should not be an editor of publication in India. It may be
true that even the legislature has so opined evidenced by the fact that the
Press and Registration of Books and Publication Bill, 2011 which has been
cleared by the Select Committee and is pending before Parliament has
suggested amendment to the Act by defining editor to mean a person who
is not only an ordinary resident in India but is also a citizen of India. But
it is for the legislature to consider the bill at the floor of the House and not
for the Court to legislate.
45. Hoping that the Parliament would find some time to consider the
Press and Registration of Books and Publication Bill, 2011 which is
W.P.(C) No.2986/2013 Page 23 of 23
pending consideration now for over two years, we dismiss the writ petition
declining relief as prayed for.
46. Since the issue raised was in public interest and merited a serious
consideration, notwithstanding the petitioner being vanquished we direct
that there shall be no order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(V.KAMESWAR RAO)
JUDGE
DECEMBER 17, 2013
mamta
No comments:
Post a Comment