The Supreme Court has agreed to examine whether India's citizenship law can be interpreted liberally to ease the path to citizenship for children born in India to foreign nationals, including whether such children can be treated as "persons of Indian origin" (PIO) or otherwise granted citizenship by registration.

A bench of justices JB Pardiwala and KV Viswanathan issued notice on January 8 to the Union government on a petition filed by an 18-year-old girl born and raised in Andhra Pradesh to parents who were US citizens at the time of her birth, though they were residing in the country as Overseas Citizens of India (OCI) cardholders. The matter will be heard next on January 30.

The petitioner, Rachita Francis Xavier, was born in 2006 in Andhra Pradesh. Her parents were originally Indian citizens but later became US citizens - her father in 2001 and her mother in 2005. At the time of Rachita's birth, both parents were lawfully residing in India as OCI cardholders.

India's citizenship framework draws sharp distinctions based on date of birth and parental citizenship. While those born in India before July 1, 1987 are citizens by birth, children born after December 3, 2004 acquire citizenship only if at least one parent is an Indian citizen. As a result, despite being born and educated entirely in India, Rachita was not recognised as an Indian citizen because her parents were foreign nationals at the time of her birth.

In 2019, when she applied for an Indian passport to pursue higher studies abroad, her application was rejected. The government relied on the Citizenship Act, 1955 to contend that she was not an Indian citizen, leaving her without an Indian passport and effectively stateless.

Rachita approached the Delhi high court in 2020 seeking a direction to issue her an Indian passport. On May 15, 2024, a single judge of the high court, justice Prathiba M Singh, ruled in her favour, holding that she was eligible for citizenship by registration under Section 5(1)(a) of the Citizenship Act. That provision allows citizenship by registration to a "person of Indian origin" who has been ordinarily resident in India for seven years and is not an "illegal migrant".

While Rachita's long residence in India was undisputed, the case turned on whether she could be classified as an illegal migrant and whether she qualified as a person of Indian origin. The Union government argued that she was an illegal migrant. Justice Singh rejected this contention, holding that the very concept of migration presupposes entry into India from another country. Since Rachita was born in India, the court said, she could not be treated as a migrant at all.

Justice Singh further held that Rachita qualified as a person of Indian origin because her mother was born in Andhra Pradesh in 1958. Interpreting Section 5 broadly, the court reasoned that birth in post-Independence India satisfied the requirement of Indian origin.

The judgment also relied on international human rights instruments, including the Universal Declaration of Human Rights and the Convention on the Rights of the Child, to underline that every child has a right to a nationality and should not be rendered stateless.

Following the ruling, the Union home ministry granted Rachita Indian citizenship on July 31, 2024.

But the government strongly contested the reasoning of the single judge and appealed. On July 14, a division bench of the Delhi high court comprising chief justice Devendra Kumar Upadhyaya and justice Tushar Rao Gedela partly allowed the appeal.

The bench overturned the single judge's interpretation of "person of Indian origin", holding it to be a "misreading" of the statute. It relied on an intervening Supreme Court judgment delivered in October 2024, which gave a definitive interpretation of the phrase "undivided India" used in the Citizenship Act. The Supreme Court had clarified that "undivided India" refers to India as defined under the Government of India Act, 1935 - meaning pre-Partition India before August 15, 1947. Bound by this precedent, the high court ruled that extending the phrase to cover post-Independence India would "do violence to the plain language" of the Act.

Since Rachita's mother was born in 1958, the division bench held that she could not be treated as a person of Indian origin for the purpose of citizenship by registration, and set aside the relevant findings of the single judge.

Challenging this conclusion, Rachita approached the Supreme Court. Her counsel Bharadwaj S argued on January 8 that the question of whether she was a "person of Indian origin" was not germane to the dispute and that the high court's division bench had unnecessarily recorded adverse findings on that issue.

The Supreme Court bench noted the challenge and was drawn to other provisions of Section 5 of the Citizenship Act. In particular, it referred to Section 5(1)(f), which allows citizenship by registration to a person whose parent was "earlier a citizen of independent India", and Section 5(4), which empowers the central government to register a minor as a citizen in special circumstances.

The petitioner has also raised the issue of whether a declaration of her status would operate in rem - having general applicability, rather than being confined to her individual case.

Issuing notice to the Union government, the court said it would examine the scope and interpretation of these provisions, signalling a possible reconsideration of how citizenship law applies to India-born children who otherwise risk falling through statutory gaps.