'Bangladeshi National': Calcutta HC Dismisses TMC Leader's Plea Against 2021 Assembly Election Result, Orders ECI To Take Action

The Calcutta High Court on Friday rejected the election petition of TMC leader Alorani Sarkar challenging the Bangaon Dakshin Assembly result in the 2021 Assembly elections on the ground that she has dual citizenship as her name also appears in the voters' list in neighbouring Bangladesh.

The Court further directed the Election Commission of India for taking necessary action in respect of the Sarkar's status in this country and accordingly directed the Registrar General of the High Court to send a copy of the order to the Election Commission. 

Justice Bibek Chaudhuri observed, 

"In the instant case the petitioner admitted that she acquired citizenship of Bangladesh mistakenly. However, the name of the petitioner still exists in the Electoral Roll of Bangladesh. I am in agreement with the learned advocate for the respondent that the principle of 'Dual Citizenship' is not applicable in India. Therefore, the petitioner cannot claim to be a citizen of India when her name appeared in the Electoral Roll of Bangladesh. The relevant date is the date of filing nomination paper by the petitioner. It is admitted from the documents filed by the petitioner that on the date of filing of the nomination paper by her she was a Bangladeshi national."

 Directing the Election Commission to take action, the Court further observed, 

"In view of the peculiar facts and circumstances of this case, a copy of this order be sent to the Election Commission of India for information and taking necessary action in respect of the petitioner's status in this country as on this date, through the learned Registrar General, High Court, Calcutta."

After losing the Bangaon Dakshin Assembly seat to BJP's Swapan Majumdar by a margin of 2,004 votes, Sarkar had filed an election petition challenging the poll result before the High Court. Thereafter, Majumdar had filed an application under Order VII Rule 11(d) of the CPC stating inter alia that Sarkar being a foreign national and not a citizen of India, the election petition filed by her is barred by law. It was further contended that Section 16 of The Representation of the People Act, 195 disqualifies a person not being a citizen of India from registering his/her name in the electoral role of this country.

Sarkar who is the petitioner in the instant case had deposed before the Court that after her marriage she became a Bangladeshi citizen and her name was recorded in national identity card of Bangladesh and also in the electoral roll. However, she had claimed that she had enrolled her name as a citizen of Bangladesh in the electoral roll of Bangladesh out of mistake and that she has already filed an application before the concerned authority in Bangladesh for deletion of her name from the electoral roll of Bangladesh.

Opining that the petitioner ceases to become a citizen of India as soon as she is enrolled in the electoral roll of Bangladesh, the Court observed further, 

"It is needless to say that as soon as the petitioner's name was recorded in the electoral roll of Bangladesh and she was enrolled as a citizen of Bangladesh, her citizenship of India automatically ceases to exist."
 

It was further noted that the National Identity Card issued by Bangladesh Election Commission shows that the petitioner is a Bangladeshi citizen and a bona fide voter of Bangladesh and that it is not cleat till date whether her name has been deleted from the electoral roll of Bangladesh. The Court also noted that the petitioner has not claimed acquisition of citizenship under Section 3 or 4 of the Citizenship Act, 1955 or citizenship by registration under Section 5 of the Citizenship Act of 1955.

The Court further held that the petitioner also does not fall within the purview of the Citizenship (Amendment) Act, 2019 and thus even if the petitioner has voter identity card, aadhar card and passport, the said documents do not prove her citizenship of this country.

Pursuant to the perusal of the records, the Court noted that the parents of the petitioner all along used to reside in Bangladesh and that her mother and brother are still residing in Bangladesh. Thus, it was held that the petitioner's claim that she became the citizen of India by birth by virtue of the provision of Article 5 of the Constitution or Section 3 of the Citizenship Act is false.

"The court has come to this conclusion that the petitioner filed the election petition claiming to be a citizen of India. She filed nomination papers as a citizen of India. She contested the election as a citizen of India. But from the documents filed and relied on by the petitioner in her affidavit-in-opposition, it is ascertained that in the month of June 2021, her application for deletion of her name from the electoral roll of Bangladesh was under consideration before the appropriate authority of the Election Commission of Bangladesh. Thus, her name was not deleted till 29th June 2021 from NID and Electoral Roll of Bangladesh. The record shows that the petitioner filed nomination to contest the State Assembly seat of 96-Bangaon Dakshin of SC(Constituency) on 31st March 2021. The election was conducted on 22nd April 2021 and the result was published on 2nd May 2021. The election petition was filed on 11th June 2021. Therefore, admittedly on all the above dates, the name of the petitioner appeared on in the Electoral Roll of Bangladesh," order read further. 

Accordingly, the Court held that such admitted facts can be taken into consideration to hold that the election petition filed by the petitioner is barred by the provision of Article 173 read with Section 16 of The Representation of the People Act, 1951while disposing of an application under Order VII Rule 11 of the CPC.

Case Title: Alo Rani Sarkar v. Swapan Majumdar 

Case Citation: 2022 LiveLaw (Cal) 198

Click Here To Read/Download Order