Union of India & Ors v. Rachita Francis Xavier

TUSHAR RAO GEDELA, J JULY 14, 2025/MJ

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 14.07.2025 + 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 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 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 s