The Supreme Court has issued notice on a special leave petition raising a substantial question on the interpretation of the expression ‘Persons of Indian Origin’ under the Citizenship Act, 1955, particularly in the context of children born in India to parents who were not Indian citizens at the time of birth, but were lawfully residing in the country as Overseas Citizens of India (OCI) cardholders.
The petition challenged a verdict of the Delhi High Court, which overturned key findings of a single judge holding that the appellant qualified as a person of Indian origin and could, therefore, be considered for Indian citizenship by registration. While the Union of India had granted citizenship to the appellant in the interim, it assailed the legal reasoning adopted by the single judge, prompting appellate scrutiny and, subsequently, proceedings before the Supreme Court.
The appellant is an 18-year-old individual born and brought up in Andhra Pradesh to parents who were Indian nationals by origin but later acquired the citizenship of the United States. At the time of her birth, both parents were residing in India under valid OCI status. Following the death of her mother, she is presently under the care of her father.
The controversy arises against the statutory framework governing citizenship by birth and registration. Under Section 3 of the Citizenship Act, as amended by Act 6 of 2004, a child born in India on or after December 3, 2004, does not acquire citizenship by birth unless at least one parent is an Indian citizen and the other is not an illegal migrant. Additionally, the Office Memorandum dated October 25, 2018, clarifies that where both parents have renounced Indian citizenship, a minor child ceases to be an Indian citizen and is consequently ineligible for issuance of an Indian passport. These provisions collectively formed the basis for denying the appellant citizenship during her minority.
While still a minor, the appellant approached the Delhi High Court, challenging the constitutional validity of the Office Memorandum and seeking permission to apply for an Indian passport to pursue higher education. The single judge noted the absence of a statutory provision squarely addressing her factual situation and observed that a rigid application of the law would effectively render her stateless.
It held that the appellant could not be characterised as an illegal migrant and could be treated as a person of Indian origin under Section 5(1)(a) of the Act, since her mother was born in India after independence. On that basis, the High Court concluded that she was eligible to seek citizenship by registration, further emphasising the breadth of the Central Government’s discretionary powers under Section 5(4) to grant citizenship to minors in special circumstances.
Although the Union Government subsequently granted citizenship to the appellant by an order dated July 31, 2024, it preferred an appeal to contest the legal findings of the single judge. The Union specifically challenged the conclusions that the appellant was outside the scope of the definition of illegal migrant and that she could be regarded as a person of Indian origin. It was argued that the statutory definition confines persons of Indian origin to those who themselves, or whose parents or grandparents, were born in undivided India prior to August 15, 1947, or in territories that later became part of India. On this construction, a parent born in India after independence could not satisfy the statutory requirement.
The Division Bench of the Delhi High Court accepted the Union’s submissions. It held that the single judge’s observations on illegal migration were fact-specific and operated only in personam, without laying down any general principle of law. More significantly, it found that the conclusion treating the appellant as a person of Indian origin was founded on a misreading of Explanation 2 to Section 5(1), which delineated the contours of that expression. Relying on the Supreme Court’s decision in Union of India v. Pranav Srinivasan, the Division Bench reiterated that the term ‘undivided India’ referred exclusively to the territory of India prior to Partition and independence, and that individuals born in India after August 15, 1947, fell outside that ambit.
The Supreme Court was informed that the High Court’s adjudication on the question of persons of Indian origin was unnecessary, given that the appellant had already been granted citizenship by registration. It was contended that the relevant statutory routes were Section 5(1)(f), which permits registration of a person whose parent was previously a citizen of independent India, and Section 5(4), which vests the Central Government with plenary authority to register a minor in exceptional cases.
Taking note of the submissions, the Bench of Justice JB Pardiwala and Justice KV Viswanathan indicated that the interpretative issue concerning the scope of persons of Indian origin and its interplay with the statutory scheme governing citizenship by registration warranted consideration and listed the matter for further hearing on January 30.
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