Let citizenship to daughter of OCI cardholders be one-off, don't open floodgates: Govt to HC
The MHA, represented by government pleader Abhigyan Siddhant, urged the division bench of Chief Justice D K Upadhyaya and Justice Tushar Rao Gedela on Monday to clarify that the single-judge's judgment of May 15, 2024 should be considered as an individual case and not a precedent, meaning it may not be used for relief in other cases.
The MHA apprehends that the single judge's observation on the two aspects '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 2024 ruling was in the case of Rachita Francis Xavier, born in 2006 in Nidamanuru, Andhra Pradesh, to parents who were earlier Indian citizens and obtained US citizenship in 2001 and 2005. In 2019, when Rachita applied for a passport to study abroad, her request was denied on the ground that she cannot be recognised as a citizen of India, effectively leaving her with no recognition of citizenship, either in India or the US. She then challenged the action before the Delhi HC.
Relying on the citizenship laws and provisions, the MHA had told the HC that she could not be considered as a 'person of Indian origin' and that she would in fact be considered an 'illegal migrant' under Section 2 (1) (b) of the Citizenship Act because she did not have any valid travel document, or a visa under which she could stay in India. Her parents were residing in India and holding Overseas Citizen of India (OCI) card at the time of her birth and Rachita had lived all her life in India by then.
In its verdict on May 15, 2024, the single-judge bench, noting Rachita's 'unique' position, said she would not qualify as an 'illegal migrant', and would qualify as a 'person of Indian origin'. It directed that she be granted Indian citizenship.
It observed that Rachita 'has effectively been rendered stateless, thereby facing significant limitations on her fundamental rights as also universal human rights in the absence of citizenship and political belonging.' Rachita was granted citizenship on July 31, 2024.
The MHA, in an appeal moved against the single judge's order, while not challenging the direction for the grant of citizenship, has challenged the judge's declaration that Rachita is not an 'illegal migrant' and is to be considered as a 'person of Indian origin'. It has said the declaration is in contravention to the laws.
The MHA has submitted that the May 2024 order errs in observing that the definition of 'illegal migrant' will not apply to Rachita solely on the fact that she was born in India and has never gone out of India.
Opposing this deduction by the single judge, the MHA has countered 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.
It has pressed for 'harmonious' reading of the Citizenship Act with the Foreigners Act, 1946 which cover provisions for all types of foreigners including children born in India to foreigners. The MHA has highlighted that the law already provides for visa services to children born to foreigners in India within 90 days of their birth.
The MHA has stressed that the single judge also erred in declaring Rachita as a 'person of Indian origin' solely on the basis of the fact that her mother was born in independent India.
Relying on section 5 of the Act, the MHA has submitted that a person shall be deemed to be of Indian origin if the person, or either of the parents, was born in undivided India or in such other territory which became part of India after August 15, 1947 (such as Sikkim), with 'undivided India' meaning India as defined in the Government of India Act, 1935.
'Any person born in India thereafter (after August 15, 1947) would, subject to fulfilment of statutory/constitutional requirements, be a citizen of India by birth and descendants of such person are not covered under definition of Indian Origin. Any other interpretation would lead to a situation where even a person born in Pakistan, Bangladesh, etc., after independence, i.e., after 15.08.1947, would be person of Indian Origin, which could not have been the intention of the law makers; and if such interpretation is accepted, it would lead to disastrous consequences,' the MHA has submitted.
The HC has now kept the matter for further consideration on October 15.
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