PIOs are only those born in India before August 15, 1947, not after: Delhi High Court clarifies on MHA's appeal
The ruling came on an appeal by the Ministry of Home Affairs (MHA) that had challenged a single judge's order on its interpretation of 'person of Indian origin'. Setting aside the earlier observation, the division bench of Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela observed that the single judge's finding is based on 'misreading of the provisions' of the Citizenship Act.
In May last year, a single-judge bench of the Delhi High Court of Justice Prathiba Singh had directed the Centre to grant Indian citizenship to a 'stateless' 17-year-old girl – Rachita Francis Xavier – who was born in India to an Indian-origin US citizen couple. At the time of the girl's birth, the couple were residing in India and were Overseas Citizen of India (OCI) cardholders. Justice Singh had held that she would not qualify as an 'illegal migrant' and would be considered as a 'person of Indian origin' as her mother was born in independent India, in Andhra Pradesh in July 1958.
The division bench, relying on a Supreme Court verdict, however clarified that as per the Citizenship Act, a person is to be considered of 'Indian origin' if they or either of their parents was born in India before August 15, 1947, or in a territory which became part of India after August 15, 1947 (for example Goa, Sikkim). It held that a person born in India on or after August 15, 1947, will not qualify as a 'person of Indian origin'.
Under the Citizenship Act, 1955, 'persons of Indian origin' can be granted Indian citizenship subject to the fulfilment of certain conditions.
While the MHA had in July 2024 granted Indian citizenship to the girl, Rachita Francis Xavier, it however, moved an appeal in December 2024, challenging the single judge's 'views' on 'illegal migrant' and 'person of Indian-origin', arguing that the interpretations 'may open floodgates for many other illegal migrants in seeking Indian citizenship' and 'would have a cascading effect and would dilute the spirit of the Citizenship Act, 1955.'
The ministry was not challenging the grant of citizenship to the girl but only the view that the single judge had taken on the question of 'illegal migrant' and 'PIO'.
The division bench — acceding to the MHA's appeal and setting aside the interpretation by the single judge of 'person of Indian origin' – recorded in its order, '…in our opinion,…any person shall be deemed to be a person of 'Indian Origin' if the person or either of his parents were born in undivided India… It would thus mean that to acquire the status of a person of 'Indian Origin', the person concerned or either of his parents would have been born in India before 15.08.1947 and not thereafter.'
'A person who was born in a territory which became part of India after 15.08.1947, will also be deemed to be a person of 'Indian Origin'…(It) would not cover a person to be deemed to be of 'Indian Origin' if he or either of his parents was born in India on or after 15.08.1947 or in a territory which did not become part of India after 15.08.1947,' it added.
Voicing its 'unambiguous opinion' that Justice Singh's observation in the case that the girl qualifies to be a 'person of 'Indian Origin' is erroneous', the bench set it aside.
The single judge had reasoned that the girl was born in India and had never gone out of India, which the MHA countered in its appeal, saying that section 2(1)(b) of the Citizenship Act, 1955 clearly defines 'illegal migrant' which would include a child born in India and devoid of any valid travel documents. The single judge had relied on the fact that the term 'migrant' envisages movement from one country to another, of a foreigner.
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