"Cannot Compel Him To Produce Nativity Certificate": Allahabad HC Directs Issuance Of OCI Card To American Citizen Whose Great-Grandparents Migrated From India

The Ministry of External Affairs, while processing the petitioner's OCI Card, declined the presented Apostille document and requested the submission of a Nativity Certificate instead.

The petitioner, who was born in the United States of America, had applied for an OCI Card as a spouse of an Indian citizen but since she could not produce her marriage annulment certificate, her application was rejected. She again moved an application for an OCI Card on the account of being a great-grandchild of two Indian citizens who had immigrated to Guyana in 1882 and it was rejected again.

The Court delved into the question of whether a Nativity Certificate is mandatory for processing the application for an OCI Card. The second question for consideration was whether an Apostille Certificate issued by the National Archives of Guyana could be treated as a valid document under the Hague Convention, 1961 (the Convention).

A Division Bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar observed “The plain reading of the Act and the Rules clearly shows that, to apply for OCI Card, the applicant has to prove that his/her grandparents or great grandparents were of Indian origin. Here, the petitioner has successfully proved the same by filing Apostille document from the National Archives of Guyana. In the light of the same it is not open for the respondents to have rejected the OCI Card on the ground that the petitioner has not been able to produce the Nativity Certificate.”

Advocate Vishnu Pandey represented the petitioner, while A.S.G.I. Sanjay Kumar Om appeared for the respondents.

The Convention abolishes the requirement of legalization of foreign documents for use in any member country, once an Apostille certificate has been issued by a competent authority of the country. The Convention aimed to simplify and reduce the cost of the legalization process of chain certification with the mere issuance of an ‘Apostille’ certificate.

The petitioner argued that she had provided evidence showing that her great-grandfather migrated from Allahabad and Jaunpur. The petitioner also submitted birth certificates to establish parentage. The argument asserted was that once the immigration of the petitioner's great-grandparents was proved, there was no reason to doubt the authenticity of the documents.

India is a signatory of the Convention and is bound to accept any public document issued by the other contracting party (country). The Court to this effect stated, “An ‘Apostille’ document should, therefore, be treated as legalized document in India by all concerned, in accordance with the international obligation under the Hague Apostille Convention.”

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.

The Court referred to the Office Memorandum issued by the Ministry of External Affairs that stated that the Apostille document by other countries would be treated as a legalised document in India by all concerned authorities. However, the Court noted that “the same Ministry of External Affairs while processing the petitioner’s OCI Card has refused to accept the Apostille document of the petitioner.”

The Court held that the petitioner had proved that her great-grandparents migrated to Guyana in 1882, and hence, she was entitled to an OCI Card.

Accordingly, the Court allowed the writ petition.

Cause Title: Naromattie Devi Ganpat v. Union of India & Ors. (2024:AHC:8647-DB)

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