Delhi High Court
Union Of India & Ors vs Rachita Francis Xavier on 14 July, 2025
Author: Tushar Rao Gedela
Bench: Tushar Rao Gedela
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14.07.2025
+ LPA 1231/2024
UNION OF INDIA & ORS. .....Appellant
Through: Ms. Nidhi Raman, CGSC with Mr.
Abhigyan Siddhant, GP and Mr.
Arnav Mittal, Advocate for UOI.
versus
RACHITA FRANCIS XAVIER .....Respondent
Through: Mr. Bharadwaj S. Iyengar, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
DEVENDRA KUMAR UPADHYAYA, CJ. (ORAL)
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
Signature Not Verified LPA 1231/2024 Page 1 of 9
Digiltally Signed
By:SREERAM L
Signing Date:16.07.2025
10:58:45
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
Signature Not Verified LPA 1231/2024 Page 2 of 9
Digiltally Signed
By:SREERAM L
Signing Date:16.07.2025
10:58:45
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.
Signature Not Verified LPA 1231/2024 Page 3 of 9
Digiltally Signed
By:SREERAM L
Signing Date:16.07.2025
10:58:45
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.
Signature Not Verified LPA 1231/2024 Page 4 of 9
Digiltally Signed
By:SREERAM L
Signing Date:16.07.2025
10:58:45
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.
Signature Not Verified LPA 1231/2024 Page 5 of 9
Digiltally Signed
By:SREERAM L
Signing Date:16.07.2025
10:58:45
Explanation 1.―For the purposes of clauses (a) and (c), an
applicant shall be deemed to be ordinarily resident in India if―
(i) he has resided in India throughout the period of twelve months
immediately before making an application for registration; and
(ii) he has resided in India during the eight years immediately
preceding the said period of twelve months for a period of not less than
six years.
Explanation 2.―For the purposes of this sub-section, a person shall
be deemed to be of Indian origin if he, or either of his parents, was born
in undivided India or in such other territory which became part of India
after the 15th day of August, 1947.]
[(1A) The Central Government, if it is satisfied that special
circumstances exist, may after recording the circumstances in writing,
relax the period of twelve months, specified in clauses (f) and (g) and
clause (i) of Explanation 1 of sub-section (1), up to a maximum of thirty
days which may be in different breaks.]
(2) No person being of full age shall be registered as a citizen of
India under sub-section (1) until he has taken the oath of allegiance in
the form specified in the Second Schedule.
(3) No person who has renounced, or has been deprived of, his
Indian citizenship or whose Indian citizenship has terminated, under this
Act shall be registered as a citizen of India under sub-section (1) except
by order of the Central Government.
(4) The Central Government may, if satisfied that there are special
circumstances justifying such registration, cause any minor to be
registered as a citizen of India.
(5) A person registered under this section shall be a citizen of India
by registration as from the date on which he is so registered; and a
person registered under the provisions of clause (b)(ii) of article 6 or
article 8 of the Constitution shall be deemed to be a citizen of India by
registration as from the commencement of the Constitution or the date on
which he was so registered, whichever may be later.
[(6) If the Central Government is satisfied that circumstances exist
which render it necessary to grant exemption from the residential
requirement under clause (c) of sub-section (1) to any person or a class
of persons, it may, for reasons to be recorded in writing, grant such
exemption.].”
13. A perusal of the Explanation 2 as extracted herein above, would
clearly reveal that a person can be said to be of “Indian Origin” in two
circumstances, namely, (i) if the person or either of his parents was born in
undivided India or (ii) the person or either of his parents was born in such
Signature Not Verified LPA 1231/2024 Page 6 of 9
Digiltally Signed
By:SREERAM L
Signing Date:16.07.2025
10:58:45
other territory which came to the folds of India after 15.08.1947. The term
undivided India is defined in Section 2(1)(h) of the Citizenship Act which is
extracted herein below:-
“(h) “undivided India” means India as defined in the Government of
India Act, 1935, as originally enacted.”
14. Accordingly, Explanation 2, in our opinion, provides that 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 as defined in the Act, 1935, as
originally enacted. 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
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”.
15. In a situation where either of the parents of a person was born in a
territory which became part of India after 15.08.1947 will also be deemed to
be person of “Indian Origin”; meaning thereby, the person or either of his
parents ought to have born in a territory which came to the fold of India after
15.08.1947. Explanation 2 appended to Section 5(1)(g) of the Citizenship
Act 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.
16. The aforesaid finding recorded by us is supported by the judgment of
the Hon‟ble Supreme Court in the case of Pranav Srinivasan (supra)
wherein, it has clearly been held that if “Undivided India” is read as India as
on or after 15.08.1947, the same would be doing violence to the plain
language of Explanation 2.
Signature Not Verified LPA 1231/2024 Page 7 of 9
Digiltally Signed
By:SREERAM L
Signing Date:16.07.2025
10:58:45
17. The Hon‟ble Supreme Court arrived at the said finding by relying
upon the fundamental rule of construction of a statute, according to which,
the words and phrases applied by a legislature are to be given their ordinary
meaning and should be construed in accordance with the rules of grammar.
Relevant extract of paragraph no.18 of Pranav Srinivasan (supra) is
quoted herein below:-
“18. ………..
For applicability of clause (b) of sub-section (1) of Section 5 of the
1955 Act, Pranav will have to establish that he is a person of Indian origin
who is an ordinary resident in any country or place outside undivided
India. In view of explanation 2 to Section 5, 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 any such other territory which was not part of undivided
India, but became part of India after 15th August 1947. There is no third
category mentioned in the explanation. If undivided India were to include
India after independence, the legislature would not have included the
category of the person or either of his parents being born in such other
territory which became part of India after the 15th August 1947. Section
2(h) of the 1955 Act provides that “undivided India” means India as
defined in the 1935 Act. If we read “undivided India” as India as on or
after 15th August 1947, we would be doing violence to the plain language
of the Explanation. We cannot read something that is not in the provision,
especially when there is no ambiguity in the provision. Therefore, we
cannot read Explanation 2 the way the learned senior counsel of Pranav
wants us to read. Pranav and both his parents were not born in the
undivided India. His parents were born after independence in independent
India. They were not born in any part of undivided India or any territory
that became part of India after 15th August 1947. Therefore, Section
5(1)(b) of the 1955 Act has no application.”
18. In view of the aforesaid, we are of an unambiguous opinion that the
observations made by the learned Single Judge in paragraphs no.41 and 52
that the respondent qualified to be a person of “Indian Origin” is erroneous,
and accordingly, the instant intra-court appeal deserves to be allowed to the
limited extent. We, thus, set aside the observations made and findings
recorded in paragraph no. 41 and 52 of the judgment dated 15.05.2024
Signature Not Verified LPA 1231/2024 Page 8 of 9
Digiltally Signed
By:SREERAM L
Signing Date:16.07.2025
10:58:45
passed by the learned Single Judge whereby it has been held that the
respondent would be a person of “Indian Origin”.
19. The appeal thus stands disposed of in the aforesaid terms.
DEVENDRA KUMAR UPADHYAYA, CJ
TUSHAR RAO GEDELA, J
JULY 14, 2025/MJ
Signature Not Verified LPA 1231/2024 Page 9 of 9
Digiltally Signed
By:SREERAM L
Signing Date:16.07.2025
10:58:45
[ad_1]
Source link