Overseas Citizen of India Cardholders

 

Supreme Court in “Anushka Rengunthwar vs Union Of India”

Overseas Citizens of India (OCIs)

The Overseas Citizens of India (OCIs) have been equated with Non Resident Indians (NRIs) all along since 2005 as regards various rights conferred under Section 7B(1) of the Citizenship Act and more particularly rights regarding education. That vide notification dated 05.01.2009, OCIs were permitted to carry out various professions in India as enumerated therein.

That in view of the various rights having been given and more particularly education rights and right to work in India and also because many OCIs have their grandparents/families/roots in India, they came back to India long back and have been residing and working here and contributing to the nation like any other citizen in the form of taxes etc. The span of living here ranges as long as about 16 to 17 years.

Article 14 prohibits class legislation, but permits reasonable classification. However, for reasonable classification to be valid, there are twin tests i.e. (i) classification must be founded on intelligible differentia and (ii) that the differentia must have a rational relation to the object sought to be achieved.

That Article 14 and 21 are available to “persons” and not only citizens and hence the OCIs who are “persons” and who have been residing in India for years together, in view of the rights of living (since life long visa is granted) and undertaking various professions in India granted under section 7B vide 05.01.2009 notification, have a right not to be discriminated against, which is guaranteed under Article 14 and also have a right of meaningful existence, which is a facet of Article 21 of the Constitution of India.

The Citizenship is regulated in Part II (Articles 5 to 11) of the Constitution of India pursuant to which the Citizenship Act is enacted to regulate the same. Section 2(ee) of the Citizenship Act defines OCI cardholders to mean a person registered as an Overseas Citizens of India cardholder by the Central Government under Section 7A of the Act. The learned Additional Solicitor General on referring to the said constitutional provisions and the Citizenship Act would point out that the privilege of securing education in India was pursuant to the conferment of the same in terms of Section 7(B) of the Act by the issue of notification.

7A. Registration of overseas citizens of India Cardholder.-(1) The Central Government may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, register as an Overseas Citizen of India Cardholder-

(a)any person of full age and capacity,-

(i) who is citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the Constitution; or

(ii) who is citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or

(iii) who is citizen of another country, but belonged to a territory that became part of India after the 15th day of August, 1947; or

(iv) who is a child or a grandchild or a great grandchild of such a citizen; or

(b) a person, who is a minor child of a person mentioned in clause (a); or

(c) a person, who is a minor child, and whose both parents are citizens of India or one of the parents is a citizen of India; or

(d) spouse of foreign origin of citizen of India or spouse of foreign origin of an Overseas Citizen of India Cardholder registered under section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application under this section:

Provided that for the eligibility for registration as an Overseas Citizen of India Cardholder, such spouse shall be subjected to prior security clearance by a competent authority in India:

Provided further that no person, who or either of whose parents or grandparents or great grandparents is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, shall be eligible for registration as an Overseas Citizen of India Cardholder under this sub-section.

2. The Central Government may, by notification in the Official Gazette, specify the date from which the existing Persons of Indian Origin Cardholders shall be deemed to be Overseas Citizens of Indian Cardholders.

Explanation.- For the purposes of this sub- section, “Persons of Indian Origin Cardholders” means the persons registered as such under notification number 26011/4/98 F.I., dated the 19th August, 2002, issued by the Central Government in this regard.

3. Notwithstanding anything contained in sub- section (1), the Central Government may, if it is satisfied that special circumstances exist, after recording the circumstances in writing, register a person as an Overseas Citizen of India Cardholder.

7B. Conferment of rights on Overseas Citizen of India Cardholder (1) Notwithstanding anything contained in any other law for the time being in force, an Overseas Citizen of India Cardholder shall be entitled to such rights [other than the rights specified under sub-section (2)] as the Central Government may, by notification in the Official Gazette, specify in this behalf.

(2) An Overseas Citizen of India Cardholder shall not be entitled to the rights conferred on a citizen of India-

(a) under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;

(b) under article 58 of the Constitution for election as President:

(c) under article 66 of the Constitution for election of Vice-President;

(d) under article 124 of the Constitution for appointment as a Judge of the Supreme Court;

(e) under article 217 of the Constitution for appointment as a Judge of the High Court;

(f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter;

(g) under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;

(h) under sections 5, 5A and 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or the Legislative Council, as the case may be, of a State;

(i) for appointment to public services and posts in connection with the affairs of the Union or of any State except for appointment in such services and posts as the Central Government may, by special order in that behalf specify.

(3) Every notification issued under sub-section (1) shall be laid before each House of Parliament.

The Central Government specified the following rights to which the persons registered as the overseas citizen of India under Section 7A of the said Act, shall be entitled, namely :-

(a) Parity with non-resident Indian in respect of,-

(i) Entry fees to be charged for visiting the national monuments, historical sites and museums in India;

(ii) Pursuing the following professions in India, in pursuance of the provisions contained in the relevant act, namely:-

(i)   Doctors, dentists, nurses and pharmacists;

(ii)  Advocates;

(iii) Architects;

(iv) Chartered accountants;

(b) To appear for the All India Pre-Medical Test or such other tests to make them eligible for admission in pursuance of the provisions contained in the relevant Acts.

The OCI cardholder shall be required to obtain a special permission or a Special Permit, as the case may be, from the competent authority or the Foreigners Regional Registration Officer or the Indian Mission concerned, namely:-

(i) to undertake research;

(ii) to undertake any Missionary or Tabligh or Mountaineering or Journalistic activities;

(iii) to undertake internship in any foreign Diplomatic Missions or foreign Government organisations in India or to take up employment in any foreign Diplomatic Missions in India;

(iv) to visit any place which falls within the Protected or Restricted or prohibited areas as notified by the Central Government or competent authority;

(2) exemption from registration with the Foreigners Regional Registration Officer or Foreigners Registration Officer for any length of stay in India:

Provided that the OCI cardholders who are normally resident in India shall intimate the jurisdictional Foreigners Regional Registration Officer or the Foreigners Registration Officer by email whenever there is a change in permanent residential address and in their occupation;

(3) parity with Indian nationals in the matter of,-

(i) tariffs in air fares in domestic sectors in India; and

(ii) entry fees to be charged for visiting national parks, wildlife sanctuaries, the national monuments, historical sites and museums in India;

(4) parity with Non-Resident Indians in the Matter of,-

(i) inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption;

(ii) appearing for the all India entrance tests such as National Eligibility cum Entrance Test, Joint Entrance Examination (Mains), Joint Entrance Examination (Advanced) or such other tests to make them eligible for admission only against any Non-Resident Indian seat or any supernumerary seat;

Provided that the OCI cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens.

(iii) Purchase or sale of immovable properties other than agricultural land or farm house or plantation property; and

(iv) Pursuing the following professions in India as per the provisions contained in the applicable relevant statutes or Acts as the case may be, namely:-

(a) doctors, dentists, nurses and pharmacists;

(b) advocates;

(c) architects;

(d) chartered accountants;

(5) in respect of all other economic, financial and educational fields not specified in this notification or the rights and privileges not covered by the notifications made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999), the OCI cardholder shall have the same rights and privileges as a foreigner.

Explanation – For the purposes of this notification,-

(1)    The OCI Cardholder (including a PIO cardholder) is a foreign national holding passport of a foreign country and is not a citizen of India.

(2)    “Non-resident Indian” shall have the same

meaning as assigned to it in the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018 made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999) and who fulfills the “Non-Resident Indian” status as per the Income Tax Act, 1961 (43 of 1961).

In that regard, in a concept where the ‘dual citizenship’ was not recognised, such persons as like that of the petitioners were considered as Overseas Citizens of India card holders as defined under Section 2(ee) of Act, 1955. The Act, 1955 through the amendment Act 6 of 2004 brought certain rights and through substitution of Section 7A to 7D the manner of registration of Overseas Citizen of India card holder; renunciation of citizenship and cancellation of registration were provided for. In the cases, on hand, the fact that all the petitioners are registered as Overseas Citizens of India cardholders is not in dispute. The right to which they are making a claim is conferred under Section 7B(1) to Act, 1955 which has been extracted and noted above. The right to education which was conferred under the notification dated 11.04.2005, in parity with the Non-Resident Indians is due to the fact that the Non- Resident Indians which is a separate class, had such right similar to that of the Indian citizens in matters relating to education. It is based on such right being conferred as far back as in the year 2005, the OCI Cardholders were taking part in the process of selections conducted for undertaking educational courses in India. Such benefit was extended to appear for the All India Pre-Medical Test or such other tests to make them eligible for admission in pursuance of the provisions contained in the relevant acts, through the notification dated 05.01.2009. The said benefit is being enjoyed by all the OCI Cardholders in the same manner as the Non-Resident Indians were enjoying along with the Indian citizens. In that circumstance, most of such OCI Cardholders have been pursuing their entire educational career in India.

The right of the OCI Cardholders is a mid- way right in the absence of dual citizenship. When a statutory right was conferred and such right is being withdrawn through a notification, the process for withdrawal is required to demonstrate that the action taken is reasonable and has nexus to the purpose. It should not be arbitrary, without basis and exercise of such power cannot be exercised unmindful of consequences merely because it is a sovereign power. To examine this aspect, in addition to the contentions urged by the learned Additional Solicitor General we have also taken note of the objection statement filed with the writ petition. Though detailed contentions are urged with regard to the status of a citizen and the sovereign power of the State, as already noted, in these petitions the sovereign power has not been questioned but the manner in which it is exercised in the present circumstance is objected. The contention of learned Additional Solicitor General is that the intention from the beginning was to grant parity to OCI Cardholders only with NRIs. On that aspect as already noted above we have seen the nature of the benefit that had been extended to the petitioners and the similarly placed petitioners under the notifications of the year 2005, 2007 and 2009. The further contention insofar as equating the OCI Cardholders to compete only for the seats which are reserved for NRIs and to exclude the OCI Cardholders for admission against any seat reserved exclusively for the Indian citizens, across the board, even to the persons who were bestowed the right earlier, it is stated that the rationale is to protect the rights of the Indian citizens in such matters where State may give preference to its citizens vis-à-vis foreigners holding OCI Cards. It is further averred in the counter that number of seats available for medical and engineering courses in India are very limited and that it does not fully cater to the requirement of even the Indian citizens. It is therefore contended that the right to admission to such seats should primarily be available to the Indian citizens instead of foreigners, including OCI Cardholders.

The Citizenship Amendment Act, 2003 was brought in to introduce Section 7A of Act, 1955 w.e.f. 06.12.2004. The said amendment was based on the recommendations of a High-Level Committee on Indian diaspora. The Government of India decided to register the Persons of Indian Origin (PIO) of a certain category as specified in Section 7A of Act, 1955 as Overseas Citizens of India. The OCI scheme was introduced with the issue of notification of 2005 which is in the background of the demands for dual citizenship by the Indian diaspora and the concept of dual citizenship is not recognized.

The Union Government of India in furtherance of the policy of the Sovereign State has the power to pass appropriate notifications as contemplated under Section 7B(1) of the Citizenship Act, 1955, to confer or alter the rights as provided for therein. However, when a conferred right is withdrawn, modified or altered, the process leading thereto should demonstrate application of mind, nexus to the object of such withdrawal or modification and any such decision should be free of arbitrariness.

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Note: This is not the complete judgment. Consists of only relevant portion of the original judgment.