"Special Circumstance": Delhi High Court orders grant of citizenship to girl born to OCI card holders

The Delhi High Court recently ordered the Central government to grant citizenship to a 17-year-old girl born and raised in India to parents who were US citizens at the time of her birth but held Overseas Citizens of India (OCI) card [Rachita Francis Xavier v Union of India & Ors].Justice Prathiba M Singh passed the order noting that the petitioner-girl’s case was covered under a special circumstance not covered by any specific provision of the Citizenship Act of 1955 or the Passports Act of 1967.The Court held that the petitioner, Rachita Francis Xavier, was not an illegal migrant and qualified as a person of Indian origin entitling her to citizenship by registration under the category of person of Indian origin under Section 5(1)(a) of the Citizenship Act.“The case would be covered under Explanation 2, as both parents of the Petitioner were Indian citizens who had thereafter obtained US citizenship. In addition, the Petitioner was born in India when her parents were legally residing in India as OCI card holders,” the Court noted.It said that Xavier cannot be rendered stateless and left to struggle for basic human rights such as freedom of movement, freedom to have an identity, freedom to be educated as per their will even in a foreign country.“The non-grant of citizenship and the consequent non-grant of a passport can have a deleterious impact on the Petitioner and her family. There is no reason why the Petitioner, a young girl ought to be made to struggle due to an unusually uncomfortable position she has been placed in – may be due to decisions made by her parents/family,” the Court stated. .Xavier had approached the High Court seeking issuance of a passport. She told the Court that she has never held a passport and was born in India to parents of Indian origin who had acquired US citizenship.Her parents were in India when she was born, however as neither of her parents were Indian citizens at the time of her birth, her application for issuance of a passport was rejected..After considering the case, Justice Singh observed that the petitioner's case was clearly a special circumstance as contemplated under Section 5 of the Citizenship Act and a case where the Central government can use its powers to grant her Indian citizenship..Justice Singh, therefore, ordered the Central government to use the enabling powers contemplated under Section 5(4) of the Citizenship Act and grant Indian citizenship to Xavier.The Bench permitted her to apply for registration as a citizen under Section 5 of the Citizenship Act and ordered the government to take the decision as per law declared by the Court within 30 days.After obtaining the citizenship, the petitioner can file an application for issuance of passport which shall be granted to her within 15 days, the Court added..Advocates Bharadwaj S Iyengar and Vikas Upadhyay appeared for the petitioner.Union of India was represented by Central Government Standing Counsel (CGSC) Anurag Ahluwalia as well as advocate Abhigyan Siddhant. .[Read Judgment]