'Special Circumstances': Delhi High Court Directs Centre To Grant Citizenship U/S 5(4) To 17-Yr-Old Born In India To OCI Card Holders

The Delhi High Court recently ordered the Central government to confer citizenship upon a 17-year-old girl who was born and raised in India to parents holding Overseas Citizens of India (OCI) status but were citizens of the United States at the time of her birth.

Justice Prathiba M Singh presiding over the case, observed, “The Petitioner's position is unique. The case of the Petitioner is not expressly covered by any specific provision of the Citizenship Act, 1955 or the Passports Act, 1967. A passport can only be issued to a person who is a citizen of India and satisfy the eligibility conditions as prescribed. The rejection of the Petitioner's passport is under Section 6(2)(a) read with Section 5(2)(c) of the Passport Act, 1967. Section 6(2)(a) provides that if the applicant is not a citizen of India, a passport cannot be issued.”

“The Petitioner also qualifies as a person of Indian origin. The Petitioner would thus, be entitled to citizenship by registration under Section 5(1)(a) of the Act under the category of `person of Indian origin'. 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,” Justice Singh added.

Xavier, a 17 years old - born, raised and educated in India - sought 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.

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 by Respondent No.3- Regional Passport Officer, Bengaluru, vide order dated 6th November 2019. Xavier also sought the quashing of the office memorandum dated 25th October, 2018 issued by the Ministry of External Affairs, which was the basis for the rejection of her passport.

Notably, the Regional Passport Office, Bengaluru on 6th November, 2019, refused to issue her passport by citing Section 6(2)(a) read with Section 5(2)(c) of the Passports Act, 1967. The said order recorded that both parents had renounced Indian citizenship and in view of the Ministry's circular dated 25th October 2018, the Petitioner was not entitled to be recognized as an Indian citizen.

Expounding on Section 5(4) of the Citizenship Act, 1955 which vests powers in the Central Government under special circumstances for granting citizenship by registration, the Court asserted, "In a country like India, there could be instances where grant of citizenship could be justified, especially to minors who may be placed in extraordinary circumstances. Minors such as the Petitioner 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 etc., 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 Petitioner's circumstances are that despite having been born in India to two OCI Card holders, educated in India and lived in India with her family, she is unable to obtain a passport. The circumstances under which the Petitioner is situated are clearly special circumstances as contemplated under Section 5(4) of the Act," the Court added.

Thus, the Court opined that the present case was one where there are special circumstances for the Central Government to use the enabling powers, as contemplated under Section 5(4) for favorably considering grant of citizenship to the Petitioner. Accordingly, the Court directed that Xavier be permitted to apply for registration as a citizen under Section 5 of the Act, and the application to be processed and the decision on the citizenship to be rendered within 30 days, upon completion of all formalities.

The Court further directed that upon obtaining the said citizenship by registration, Xavier shall file a fresh application under the Passports Act for issuance of a passport, which shall be granted expeditiously – i.e., within 15 days from date of application.

“Further, considering that the Petitioner herself is acquiring the age of majority in November 2024 and had clearly expressed her intent and choice to be an Indian citizen, as per the Office Memorandum dated 25th October, 2018, the above order is being passed in the unique and special facts and circumstances of the present case,” the Court concluded while allowing the writ petition.

Case Title: Rachita Francis Xavier v Union of India & Ors

Citation: 2024 LiveLaw (Del) 601

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