Why Modi government wanted a teenage girl born in Andhra branded an ‘illegal immigrant’

The Union government successfully appealed a progressive Delhi High Court ruling that could have eased the path to citizenship for children born in India to foreign nationals.

A two-judge bench of the High Court on July 14 set aside the reasoning of a single-judge bench from May 2024. The earlier order had offered a wider interpretation of who qualifies as a “person of Indian origin”, a key criterion for attaining citizenship by registration. It has also held that a person born in India, even if to non-Indian parents, could not be seen as an “illegal immigrant”.

Citizenship by registration is a process under the Citizenship Act, 1955 that allows the government to grant citizenship to certain eligible individuals, such as those of Indian origin or married to Indian citizens, after they formally apply and meet specified residency requirements.

The Union Home Ministry had appealed against the May 15, 2024 order. It argued that the judge’s interpretation would “open floodgates for many other illegal migrants in seeking Indian citizenship”. It also said the ruling would “dilute the spirit of the Citizenship Act”.

While the specific petitioner in the case was granted citizenship, the two-judge bench’s decision has closed a potential legal pathway for others in similar situations. The case highlights the government’s rigid stance on citizenship, even for children who have known no other home but India.

A girl without a country

The case centred on Rachita Francis Xavier, a 17-year-old born and raised in Andhra Pradesh. She had never left India.

Her parents were born Indian citizens but acquired US citizenship. Her father became a US citizen in 2001 and her mother in 2005. Rachita was born in 2006. At the time of her birth, her parents were legally residing in India as Overseas Citizens of India cardholders.

As per the Citizenship Act, only those born in India before July 1, 1987 are automatically Indian citizens. Those born after December 3, 2004 are citizens only if at least one of their parents is already a citizen. This convoluted legal framework meant Rachita was born in India – but was not an Indian citizen since her parents were American.

In 2019, when Rachita applied for an Indian passport to study abroad, her application was rejected. The government used the Citizenship Act to argue that she was not an Indian citizen. This left her with no passport and no nationality.

A progressive interpretation

Rachita approached the Delhi High Court in 2020, seeking an order for issuance of an Indian passport to her.

On May 15, 2024, Justice Prathiba M Singh decided in Rachita’s favour. Singh ruled that Rachita was eligible for citizenship by registration under Section 5(1)(a) of the Citizenship Act.

This specific route to citizenship is open to individuals who meet three main conditions: they must be a “person of Indian origin”, have been “ordinarily resident in India for seven years”, and not be an “illegal migrant”. Rachita, having lived her entire life in India, met the residency requirement. The legal battle was over the other two conditions.

The government had argued that Rachita was an “illegal migrant”. According to Section 2(1)(b) of the act, an illegal migrant is a foreigner who enters India without valid travel documents. But Singh noted that Rachita was born in India. She had not entered the country at all.

“The term ‘migrant’ itself contemplates movement from one country to another,” Singh wrote. “[Rachita] is not a migrant, as she was born in India and has not moved to India from any other country.”

Having established that she was not an illegal migrant, Singh then ruled that she qualified as a “person of Indian Origin”. This was based on Section 5(1) of the act which defines a person of Indian origin as someone who, or whose parents, was born in “undivided India” or a territory that became part of India after August 15, 1947.

Rachita’s mother was born in Andhra Pradesh in 1958. Singh interpreted the law to mean that birth in independent India was sufficient. The court argued that from the act, “it becomes clear that admittedly since the mother was born in India, after Independence, [Rachita] would be a person of Indian origin”.

To bolster her reasoning, Singh turned to international law. She pointed to global agreements that India has signed, such as the Universal Declaration of Human Rights and the Convention on the Rights of the Child. These international laws, she noted, uphold the fundamental principle that every child has a right to a nationality. Denying Rachita citizenship, Singh argued, would render her stateless and violate India’s commitments to these basic human rights.

This judgement was crucial. It meant that children born in India to foreign-national parents could potentially claim citizenship by registration after seven years of residency, as long as one of their parents was born in independent India.

Centre’s ‘floodgates’ fear

The Union Home Ministry followed the court’s order and granted Rachita citizenship on July 31, 2024.

However, the ministry strongly contested the legal reasoning of the judgement. It filed an appeal before a larger division bench in December.

The government’s main concern was that the ruling would set a precedent. It feared the judgement “may open floodgates for many other illegal migrants in seeking Indian citizenship”.

The ministry argued that the term “illegal migrant” should apply to any child born in India without valid travel documents. It also contested the single judge’s broad reading of “person of Indian Origin”.

The definition of ‘origin’

On July 14, a two-judge bench of the High Court comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela agreed with the government. It overturned the single judge’s reasoning on the definition of a “person of Indian Origin”.

The bench called the earlier interpretation “erroneous” and a “misreading of the provisions”.

Crucially, the legal landscape had changed between the two judgements. Singh’s ruling came in May 2024. Five months later, in October, the Supreme Court delivered a judgement that provided a definitive interpretation of “undivided India” in the act.

The apex court had pointed out that the act itself defines “undivided India” as “India as defined in the Government of India Act, 1935, as originally enacted”. This means India before independence and partition in 1947. The High Court’s two-judge bench was bound by this new Supreme Court precedent.

Relying on the Supreme Court’s October verdict, the bench clarified that reading “undivided India” to include India after August 15, 1947, “would be doing violence to the plain language” of the act.

Therefore, the bench ruled, to be a “person of Indian Origin” for the purpose of being eligible for citizenship by registration, an individual or their parents must have been born in pre-1947 India. Since Rachita’s mother was born in 1958, this did not apply to her.

The bench set aside the findings of the single judge that held Rachita to be a “person of Indian Origin”.

On the issue of “illegal migrant”, the bench clarified that Singh’s observation was limited to the specific facts of Rachita’s case and should not be treated as a rule.

While Rachita Xavier is officially an Indian, the door that had briefly opened for others like her has been firmly shut. Children with roots in India now risk being left stateless due to the choices of their parents.