Pranav Srinivasan v. The Government of India, W.P No. 31272 of 2019

Read the judgement here

Date of the decision: 08.03.2022

Court: Madras High Court

Judges: Justice Dr. Anita Sumanth

Summary: The Madras High Court held that a foetus or embryo is a ‘minor child’ for the purposes of Section 8(2) of the Citizenship Act, 1955. Hence, such an embryo acquires the citizenship of its parents. It also stated that if the parents of such ‘minor’ renounce their citizenship while the child is in his mother’s womb, the child will be entitled to seek resumption of his Indian citizenship in terms of Section 8(2) of the Act, upon attaining majority. 

Facts: The Petitioner’s grandparents were Indian citizens by birth and continue to be so. His parents, originally Indian citizens, had renounced their citizenship and obtained citizenship of Singapore on 19.12.1998. At this time, the Petitioner was a foetus, aged 7½ months and acquired citizenship of Singapore by virtue of his birth there on 01.03.1999. Subsequently, after attaining majority on 01.03.2017, the Petitioner made a declaration before the Indian Consulate at Singapore on 05.05.2017, seeking resumption of his Indian citizenship under Section 8(2) of the Citizenship Act, 1955 (‘the Act’). Section 8(2) allows minor children of persons who have renounced Indian citizenship to resume their Indian citizenship upon attaining majority.  

The Petitioner claimed that he had “ceased being an Indian citizen” as his parents had renounced their Indian citizenship and sought resumption of the same in terms of Section 8(2) of the Act.

However, the Government of India rejected his application under Section 8(2) of the Act, but permitted him to apply for citizenship under Section 5(1)(f)/(g) of the Act. Thus, even though the order did not reject the Petitioner’s request for citizenship, it barred him from applying under Section 8(2).

Aggrieved by the order, the Petitioner filed a writ petition before the Madras High Court. 

Holding: The question before the court was whether a child still in the mother’s womb would come under the meaning of “minor child” under Section 8(2) of the Act.

The Madras High Court held that “a foetus or embryo, particularly one who was 7 ½ months on the critical date, that is 19.12.1998, certainly has acquired the status of a child. With this status, he acquires citizenship of his parents, i.e, Indian Citizenship and one that they renounced on the aforesaid date. Thus the protection/entitlement available under Section 8(2) for resumption of citizenship cannot be denied to him” (paragraph 15). The Court held that for the purposes of Section 8(2) of the Act, a “minor child” would include a foetus.

In reaching this decision,  the Court  looked at various  statutory enactments and  case laws which discuss the rights of an  unborn  child, such as Section 3 of the Hindu Succession Act, 1956 which governs the right of property to an unborn child, Section 314 of the Indian Penal Code, which protects the rights of an unborn child to whom death was caused while causing miscarriage, Section 6 of the Limitation Act, which states that a "minor" for the purpose of that Section would include a child in the womb.

The Court also noted the distinction between the terminologies used in various sections of the Citizenship Act. Section 8(2) of the Act specifically mentions “minor child” and not "birth", whereas in other sections of the act, the term used is “birth”. There is thus, “a distinction that is sought to be drawn between the acquisition of ‘citizenship by birth’ and the acquisition of ‘citizenship by a minor child’ by virtue of the resumption of citizenship” (paragraph 17). The Court noted that such a distinction had been consciously made by the legislature since “a child need not have been born at the time of his parents renouncing their citizenship, to be entitled to the benefit of seeking resumption of his right to citizenship” (paragraph 18).

The Court, however, also acknowledged that there was no clarity as to when the life of a foetus actually commences, but said that the same was irrelevant in the present case as the foetus was already 7½ months old, very well exhibiting responses of a child with life. 

Lastly, the court also placed reliance on the United Nations Convention on the Rights of the Child to  which India is a signatory. It noted that “Article 1 of the Convention defines a 'child', as every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. Thus, what is stipulated is only an upper limit and there is no lower limit or starting point for when a child is to be understood as being a child” (paragraph 36).

Significance: This judgement is significant for being the first of its kind in Indian citizenship law. However, it is important to note that the judgement is not one that is in line with the pre-existing citizenship jurisprudence.

In India, Citizenship acquisition occurs either under Sections 3, 4, 5, 6, 6A and 7 of the Citizenship Act or under Articles 5, 6, 7, 8, 9, 10 and 11 of the Indian Constitution. The present case was regarding the resumption of citizenship under Section 8(2). For the purpose of application of this Section, the person ought to have firstly acquired citizenship under the afore-mentioned Sections of the Citizenship Act. Sections 3 and 4 specifically require the child to be born, and similarly, Sections 5, 6, 6A and 7 require the person to be in existence to apply for citizenship. None of these Sections can be interpreted to bring into their ambit an unborn child and thus, the petitioner in the present case cannot be said to have acquired citizenship under any of these Sections. Even Section 4 which related to citizenship by descent becomes inapplicable as his parents had already given up their citizenship before his birth in Singapore. Section 8 of the Citizenship Act relates only to the resumption of citizenship which had been previously lost due to renunciation of citizenship by the parent. As citizenship had never been acquired by the petitioner, Section 8 ought not to have been made applicable to the present case.

Additionally, the judgement is not very clear as to whether this expanded meaning of “minor child'' is restricted to just Section 8(2) or whether it would also be applicable to other sections in the Act that refer to the term "minor child". For example, Sections 7A(b), 7A(c) and 7C(2) also refer to “minor child” in the context of overseas citizenship. It is not clear whether this judgement would be applicable to such other sections which creates scope for confusion.

The Court has also failed to answer the most important question that forms the basis of confusion with regard to the rights of an unborn child, even in this case. This has also been mentioned by the Court in paragraph 22 of the judgement wherein the Court has noted that “there is some greyness as to when life of a foetus actually commences, as the very date of conception could be in the realm of hypothesis and there is no clarity as far as this aspect is concerned”. The very fact that the Court heavily relies on the fact that the foetus was 7.5 months old shows that this still remains a grey area. Thus, albeit this judgement holds precedential value in citizenship law, the precedential value of this decision when it comes to defining whether a foetus is a child will be limited.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Disha Mohanty.