The Supreme Court has issued notice to the Union government in a landmark case examining whether children born in India to foreign nationals can be granted Indian citizenship, potentially reshaping the interpretation of the Citizenship Act and addressing concerns of statelessness.
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NEW DELHI: The Supreme Court of India has agreed to examine whether the country’s citizenship law can be interpreted more liberally to ease the path to citizenship for children born in India to foreign nationals.
The crucial question is: can children born in India to foreign nationals be granted citizenship through a liberal interpretation of the Citizenship Act, 1955?
A bench comprising Justices JB Pardiwala and KV Viswanathan issued notice to the Union government on January 8, in a case involving Rachita Francis Xavier, an 18-year-old woman born and raised in Andhra Pradesh to parents who were US citizens at the time of her birth but residing in India as Overseas Citizens of India (OCI) cardholders.
The matter is scheduled to be heard next on January 30.
Background: Citizenship by Birth and Registration in India
India’s citizenship framework under the Citizenship Act, 1955, draws sharp distinctions based on both the date of birth and parental citizenship status:
- Individuals born in India before July 1, 1987, are citizens by birth.
- Those born between July 1, 1987, and December 3, 2004, require at least one Indian citizen parent.
- For children born after December 3, 2004, citizenship by birth is available only if both parents are Indian citizens, or one parent is an Indian citizen and the other is not an illegal migrant.
Because Rachita was born in 2006, and both her parents were foreign nationals at the time, despite being lawfully resident in India, she was not recognised as an Indian citizen.
In 2019, Rachita applied for an Indian passport to pursue higher education abroad. Her application was rejected, with the government citing the Citizenship Act to argue that she was not an Indian citizen, effectively leaving her without any nationality documentation.
She subsequently approached the Delhi High Court in 2020, seeking a direction to issue her an Indian passport.
Delhi High Court’s Single Judge Ruling
On May 15, 2024, Justice Prathiba M Singh ruled in Rachita’s favour, holding that she was eligible for citizenship by registration under Section 5(1)(a) of the Citizenship Act. This provision allows citizenship for a “person of Indian origin” who has been ordinarily resident in India for seven years and is not an illegal migrant.
Key findings of the single judge included:
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- Illegal migrant definition: Since Rachita was born in India, she could not be considered a migrant at all, as migration presupposes entry from another country.
- Person of Indian origin (PIO): The court held that Rachita qualified as a PIO because her mother was born in Andhra Pradesh in 1958.
- Human rights perspective: The judgment relied on international instruments such as the Universal Declaration of Human Rights and the Convention on the Rights of the Child, emphasising that every child has the right to a nationality and should not be rendered stateless.
Following the judgment, the Union Home Ministry granted Rachita Indian citizenship on July 31, 2024.
The Union government challenged the ruling, leading to a partial reversal by a division bench of the Delhi High Court on July 14, 2024, comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela.
The division bench overturned the single judge’s interpretation of “person of Indian origin”, calling it a misreading of the statute. The court relied on an October 2024 Supreme Court judgment that clarified the meaning of “undivided India” under the Citizenship Act as referring strictly to India before August 15, 1947, as defined in the Government of India Act, 1935.
Since Rachita’s mother was born in 1958, the bench held that she could not qualify as a PIO under the Act and set aside that portion of the single judge’s ruling.
Supreme Court Intervention: Key Legal Questions
Challenging the division bench’s conclusions, Rachita approached the Supreme Court. Her counsel argued that the issue of a person of Indian origin was not central to her case and that the high court had unnecessarily recorded adverse findings.
The Supreme Court has now signalled that it will examine broader provisions of the Citizenship Act, including:
- Section 5(1)(f): Allows citizenship by registration to a person whose parent was earlier a citizen of independent India.
- Section 5(4): Empowers the central government to register a minor as an Indian citizen in special circumstances.
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The court will also consider whether a declaration of Rachita’s status would operate in rem, meaning it would have general applicability and potentially benefit similarly placed individuals across the country.
Case Title:
RACHITA FRANCIS XAVIER VERSUS UNION OF INDIA & ORS.
SPECIAL LEAVE PETITION (CIVIL) Diary No.61432/2025
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