Citizenship Act 1955 | Nativity Certificate Not Mandatory For Grant Of OCI Card: Allahabad High Court

The Allahabad High Court has held that Nativity certificate is not mandatory under the Citizenship Act 1955 and the rules made thereunder for grant of Overseas Citizenship of India to a foreign national.

While dealing with a case of foreign national of Indian Origin seeking OCI card, the bench comprising Justice Mahesh Chandra Tripathi and Justice Prashant Kumar held,

“Section 7(A) of the Citizenship Act, 1955 lays down for grant of OCI which can be issued to anyone, who is a child or a grandchild or a great grandchild of such a citizen of Indian Origin. Section 18 of the Citizenship Act further obliges the respondents to frame Rules. Accordingly, under Section 18 of the Act, 1955, the Rules, 2009 was framed. Rules 29 to 35 of the Rules, 2009 which is Part VI of the Rules, 2009, lays down registration, renunciation and cancellation of overseas citizenship of India. In these rules, there is no mention of Nativity Certificate as sought by the respondents herein.”

The Court held that the petitioner was only liable to prove her ancestry under the Citizenship Act to obtain an OCI card. It was not mandatory for her to prove her ancestry by specifically providing the Nativity Certificate.

Factual Background

Petitioner, a citizen of United States of America, was born in Guyana, but is of Indian origin. Petitioner had obtained the immigration documents of her grandparents from the National Archives of Guyana. Though petitioner had married an Indian Citizen, dissolution of first marriage of the husband could not be proved. Accordingly, her application for OCI card and conversion of visa through spouse was rejected.

Thereafter, petitioner applied for OCI card through ansectry, which was also rejected for want of nativity certificate. While the petitioner was running from pillar to post for obtaining OCI card, her visa expired. Accordingly, the petitioner approached the High Court for grant of OCI card and conversion of visa to X-1 Entry Visa on the basis of Indian Origination/Indian Spouse.

Counsel for petitioner submitted that the visa granted to petitioner was extended from time to time has expired and is not being further extended. It was argued that nativity certificate is not mandatory under the Citizenship Act, 1955 and the Citizenship Rules, 2009 for grant of registration as an Overseas Citizen of India. It was argued that the petitioner had duly submitted requisite documents in support of her claim, demonstrating her Indian Origin as her forefathers were residing in Uttar Pradesh.

It was also argued that though the respondents were insisting on the nativity certificate, the Nagar Nigam was unable to provide it due to lack of records prior to 1990.

Per Contra, counsel for respondents contended that the documents furnished by the petitioner obtained by her from the archives of Guyana was not eligible for OCI card registration under Section 7A(1) or Section 7A(3) of the Act, 1955 read with Articles 5 and 8 of the Constitution of India, “as descendants of Indian origin immigrants, who migrated as indentured labourers during British rule to Mauritius, Surinam, Netherlands and Reunion Island were only made eligible for OCI Card registration by granting special dispensation, with the approval of Ministry of Home under Section 7A(3) of the Citizenship Act, 1955 from time to time (whereby the documents of the archives of these countries can only be considered for OCI registration of their citizens).”

Since, Indian immigrants of Guyana were not included in the special dispensation category, application of petitioner for grant of OCI card on the basis of document from archives of Guyana could not be accepted. Respondents stressed on the need for nativity certificate issued by the concerned District Magistrate to be submitted by the petitioner.

High Court Verdict

The Court observed that since the petitioner had obtained the documents regarding the immigration of her grandparents from the National Archives of Guyana and they were duly Apostilled, there was no reason for the Indian authorities to disbelieve them, both nations being signatories to the Apostille Convention.

Referring to the Citizenship Act 1955 and the rules made thereunder, the Court held that nativity certificate is not mandatory for grant of Overseas Citizenship of India to a foreign national.

The Court observed that the Nagar Nigam, Allahabad was unable to provide nativity certificate to the petitioner on grounds that they did not have records prior to 1990. The Court held that the application of the petitioner cannot be reject on grounds that she is unable to procure the Nativity Certificate when the government authorities had themselves failed to maintain their records. Since the petitioner, was able to prove through Apostilled documents that her grandparents were of Indian origin, the rejection of her application could not be sustained.

The Court held that the petitioner had sufficiently established her ancestry as was required by the Act of 1955. However, there was no requirement for her to specifically provide a nativity certificate to prove her ancestry.

Accordingly, the Court directed the respondent authorities to process the OCI Card of the petitioner in accordance with Section 7A of the Citizenship Act, 1955 and also directed them to convert the VISA of the petitioner, so that she is eligible for the OCI Card.

Case Title: Naromattie Devi Ganpat v. Union of India and others [WRIT - C No. - 19866 of 2023]

Case Citation: 2024 LiveLaw (AB) 30

Counsel for Petitioner: Vineet Kumar Singh, Prateek Srivastava, Vikrant Pratap Singh and Vipul Singh.

Also Read | Apostille Convention | Govt Shouldn't Deny Documents Procured From Signatory Countries Or They Might Return The Favour: Allahabad High Court 

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