Can Child Born To OCI Cardholders In India Be Regarded As 'Person Of Indian Origin'? Supreme Court To Decide

The Supreme Court recently issued notice in a special leave petition to examine whether "persons of Indian origin" could include children who are born in India to parents who were not citizens of India at the time of birth but were legally Overseas Citizenship of India (OCI) cardholders.The SLP is filed against the order of the division bench of the Delhi High Court, which set aside the single judge's order declaring that the Appellant is qualified to be a person of "Indian Origin".The Appellant, Rachita Francis Xavier, is an 18-year-old girl who was born and raised in Andhra Pradesh to parents who were originally from India but then acquired citizenship of the United States. At the time of her birth, the parents were residing in India as OCI cardholders. She is now raised by her father as her mother has passed away. As per the Citizenship Act, 1955(as amended from time to time), a child born in India does not acquire Indian citizenship automatically by birth until the conditions laid in the legislation as fulfilled. In this case, as per the Office Memorandum dated 25th October, 2018,, since both parents renounced Indian citizenship, the law says that the minor child ceases to be an Indian citizen and therefore is not eligible for an Indian passport. Children born after December 3, 2004 acquire citizenship only if at least one parent is an Indian citizen.Findings of the single judge When she was a minor, she had filed a petition before the Delhi High Court to declare the Office Memorandum as unconstitutional and that she be allowed to apply for the passport for higher studies.The single judge had observed that since there is an absence of a specific provision applicable to her case, she has effectively been rendered stateless. Declaring that the Appellant is not an illegal migrant, the single judge said that she could be deemed as a person of Indian origin under Section 5(1)(a) of the Act as her mother was born in India after independence. Therefore, be considered for citizenship by registration. As per Section 5(1)(a), a “person of Indian origin” who has been ordinarily resident in India for seven years and is not an “illegal migrant” can seek citizenship by registration. The single judge also said that under Section 5(4), the Central Government has vast powers to consider citizenship by registration under special circumstances. Findings of division benchThough the Union granted Indian citizenship to the appellant on July 31, 2024, it contested the reasoning of the single bench that she could be regarded as "person of Indian origin".The Union filed a Letters Patent Appeal specifically seeking that the single judge's observation in para 29 that the term 'illegal migrant' would not apply to the Appellant is not sustainable. It also sought to observe that the appellant would be a "person of Indian origin" is also erroneous. It was argued that a person can only be deemed to be a person of indian origin where (i) he or either of his parents is born in undivided India or (ii) in such other territory which is not a part of undivided India but became part of India after 15.08.1947.Therefore, her mother, who was born after independence, can't be covered by the term 'person of Indian origin'. The Appellant had submitted that these issues raised by the Union need not be considered as her case for grant of citizenship by registration was considered and accordingly, she has been granted citizenship.However, the division bench of Chief Justice Devendra Kumar Upadhaya and Justice Tushar Rao Gedela observed that the findings that the effect of the term "illegal migrant" by itself would not apply to the appellant are to be read in personam and not in rem, since it was in relation to peculiar facts. It also held that the findings that the appellant could qualify as a 'person of Indian origin' are based on the misreading of provisions in Explanation 2 of Section 5(1)(g), which defines who could be deemed as persons of Indian origin. The division bench relied on the Supreme Court's judgment in Union of India v. Pranav Srinivasan which held that “undivided India” refers to pre-Partition India before August 15, 1947, and a person who was born in India after independence cannot be brought under this ambit.At the Supreme Court, before a bench comprising Justice JB Pardiwala and Justice KV Viswanathan, the appellant's counsel submitted that whether the person qualified as a person of Indian Origin was not at all germane to the present issue and the High Court, for no good reason, went into that query. The counsel also referred to Section 5(1)(f), which allows citizenship by registration to a person whose parent was “earlier a citizen of independent India”, and Section 5(4), which empowers the Central Government to register a minor as a citizen in special circumstances.Stating that the Court will consider this issue, it directed that the matter be listed on January 30.Case Details: RACHITA FRANCIS XAVIER v UNION OF INDIA &...

Can Child Born To OCI Cardholders In India Be Regarded As 'Person Of Indian Origin'? Supreme Court To Decide

Gursimran Kaur Bakshi

Tags