Union of India v. Rachita Francis Xavier

1. Heard learned counsel for the parties and perused the records available before us on this intra-court appeal filed under Clause X of the Letters Patent with the limited prayer to set aside the judgment dated 15.05.2024, passed by learned single judge in W.P.(C) 1754/2020 to the extent the judgment holds the respondent not to be an “illegal migrant” and to be a “person of Indian Origin”. More specifically, the prayer made in this appeal is to set aside the observations made in paragraphs no.29, 30, 41 and 52 of the judgment dated 15.05.2024 passed by the learned Single Judge.

2. It has been argued on behalf of the appellants that observations made in paragraph no.29 of the judgment passed by the learned Single Judge to Digiltally the effect that the term “illegal migrant” would not apply to the respondent, is not sustainable, for the reason that facts of the present case clearly establish that the respondent is an “illegal migrant” as per definition of the said expression occurring in Section 2(1)(b) of the Citizenship Act, 1955 (hereinafter referred to as the „Citizenship Act‟).

3. Further submission of the learned counsel representing the appellants is that finding recorded by learned Single Judge in the impugned judgment holding that the respondent would be a “person of Indian Origin”, is also erroneous as the said finding clearly runs contrary to the provisions contained in Explanation 2 appended to Section 5(1)(g) of the Citizenship Act. His submission is that Explanation 2 has wrongly been interpreted, and such interpretation by the learned Single Judge is in contravention of the judgment of the Hon‟ble Supreme Court in the case of Union of India v. Pranav Srinivasan, 2024 SCC OnLine SC 2920.

4. Our attention has been drawn to paragraph no.18 and 21 of Pranav Srinivasan (supra) to emphasize that a person shall be deemed to be of Indian Origin if: (i) he or either of his parents were 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. It has been argued that contrary to the said interpretation given by the Hon‟ble Supreme Court in Pranav Srinivasan (supra), the learned Single Judge has opined that since the mother of the respondent was born in India after independence, the respondent would be a person of Indian Origin. Such an interpretation, according to learned counsel for the appellant, is based on complete misreading of the provisions contained in Explanation 2 appended to Section 5(1)(g) of the Citizenship Act which provides that the person is to be deemed to be of Indian Origin only in two following conditions: (i) if the person or either of his parents was born in undivided India and (ii) the person or either of his parents was born in such territory which became part of India after 15.08.1947.

5. It is the argument of the learned counsel for the appellant that the term “undivided India” is defined in Section 2(1)(h) of the Citizenship Act, according to which, “undivided India” means India as defined in the Government of India Act, 1935 (hereinafter referred to as the „Act, 1935‟) and therefore, any person born after independence in independent India would not be covered by the term “person of Indian Origin” as per Explanation 2 appended to Section 5(1)(g) of the Citizenship Act.

6. On the other hand, learned counsel for the respondent has stated that such issues which have been sought to be raised in the instant Letters Patent Appeal, do not require any adjudication for the reason that in terms of the directions issued by the learned single judge vide judgment dated 15.05.2024, which is under challenge herein, the case of the respondent was considered for grant of citizenship by registration under Section 5(4) of the Citizenship Act, and she accordingly, has been granted citizenship by registration.

7. Having argued as above, learned counsel for the respondent, however, could not make any submission contrary to the interpretation given by the Hon‟ble Supreme Court in Pranav Srinivasan (supra) to the term “person of Indian Origin”.

8. We have considered the respective submissions made by learned counsel for the parties.

9. So far as the submissions made by learned counsel appearing for the appellants about the observations made in paragraph no.29 and 30 of the impugned judgment are concerned, we may only observe that the observations to the effect that the term “illegal migrant” by itself would not apply to the respondent, are in relation to the peculiar facts of the case and accordingly, the observations or the findings are thus to be read in personam and not in rem.

10. The facts of the case have been discussed by the learned Single Judge, which are rather admitted by the parties. Learned Single Judge has made the said observations in paragraph no.29 and resultantly in paragraph no.30 of the impugned judgment, which are in the peculiar facts of the case and the facts are that though the respondent was born in India but whose parents were not Indian Citizens at the time of her birth, having acquired the citizenship of United States of America on 28.09.2001 and 28.07.2005 respectively. The respondent at the relevant point of time was a minor and was born in India to her parents who were Overseas Citizens of India Cardholders (OCI) within the meaning of Section 7A of the Citizenship Act. It is in these circumstances that the learned Single Judge has held that since the term “migrant” envisages movement from one country to another of a foreigner, the respondent could not be termed to be “migrant” for the reason that she was born in India and had not moved to India from any other country. The said finding has been recorded in paragraph no.29 and 30 of the judgment by learned Single Judge also keeping in view the fact that the status of parents of the respondent as OCI cardholders is not denied and it is also not denied that they were legally residing in India as OCI cardholders at the time of birth of the respondent.

11. In view of the aforesaid, we only clarify that observations made and findings recorded in paragraph no.29 and 30 of the judgment rendered by the learned Single Judge are to be read specifically in the facts of the case and therefore, the same are to be treated as having been rendered in personam and not in rem.

12. As regards the observations made and findings recorded in paragraph no.41 and 52 of the judgment of learned Single Judge to the effect that the respondent qualified as a “person of Indian Origin” are concerned, in our opinion, the said finding is based on misreading of the provisions embodied in Explanation 2 appended to Section 5(1)(g) of the Citizenship Act. Section 5 of the Citizenship Act is quoted here under:- “5. Citizenship by registration.―[(1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely:― (a) a person of Indian origin who is ordinarily resident in India for seven years before making an application for registration; (b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India;

(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;

(d) minor children of persons who are citizens of India;

(e) a person of full age and capacity whose parents are registered as citizens of India under clause (a) of this sub-section or sub-section (1) of section 6; (f) a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and 3 [is ordinarily resident in India for twelve months] immediately before making an application for registration; (g) a person of full age and capacity who has been registered as an [Overseas Citizen of India Cardholder] for five years, and who [is ordinarily resident in India for twelve months] before making an application for registration. Explanation 1.―For the purposes of clauses (a) and (c), an applicant shall be deemed to be ordinarily resident in India if―