The notification introduces a series of restrictions that dramatically
curtails the rights and liberties of OCIs in India.
Narendra Modi at the 2014 edition of Pravasi Divas,
a celebratory day to mark the contribution of the overseas Indian community
towards the development of India. | AFP
In a stunning development for Overseas Citizens of India, the Ministry
of Home Affairs issued a notification on March 4
dramatically altering the compact between OCIs and the Indian state. This
notification, which is issued under Section 7B of
the Citizenship Act, 1955, supersedes three earlier notifications
issued on April 11, 2005, January 5, 2007, and January
5, 2009, which laid down the rights of the OCIs.
Apart from humiliating and illegally classifying OCIs as “foreign
nationals”, the new notification introduces a series of new restrictions that
dramatically curtails the rights and liberties of OCIs in India. These
restrictions include a requirement for OCIs to secure a special permit to
undertake “any research”, to undertake any “missionary” or “Tablighi” or
“journalistic activities” or to visit any area in India notified as “protected”, “restricted” or “prohibited”.
In addition, the notification now equates OCIs to “foreign nationals” in
respect of “all other economic, financial and educational fields” for the
purposes of the Foreign Exchange Management Act, 2003 although past circulars
by the Reserve Bank of India under FEMA will hold ground. This reverses the
position that has held for the last 16 years wherein
OCIs were equated to Non-Resident Indians rather than “foreign
nationals” for the purposes of their economic, financial and educational
rights.
OCIs can however continue to purchase land (other than agricultural
land), pursue the profession of medicine, law, architecture and accountancy and
seek parity with Indian citizens with regard to airfares and entry fee to
monuments and parks. OCIs can also continue to seek enrolment in Indian
educational institutions on par with NRIs but not for seats reserved
exclusively for Indian citizens.
Judicial defeats
Most of these new restrictions have likely been inspired by the defeats
suffered by the government in various cases filed by OCIs before the judiciary.
Take for example, the new requirement for OCIs to apply for a special permit to
undertake any missionary activities. This restriction has been introduced to
undercut a judgment by Justice Vibhu Bakru of the
Delhi High Court wherein he came down heavily on the Ministry of
Home Affairs for cancelling the OCI card of an American-Indian doctor on the
grounds that he was engaged in “evangelical and subversive activities” while
offering free medical services to the needy and the poor in Bihar.
In that judgment, Justice Bakru made it clear that there was no
restriction preventing OCIs from engaging in religious activities.
Similarly, the restrictions on OCIs competing for seats reserved for
Indian citizens is meant to undercut a judgment of
the Karnataka High Court by Justices BV Nagarathna and NS Sanjay
Gowda declaring that OCI students will be treated as Indian citizens for the
purposes of admission to professional courses.
Lastly, the Ministry of Home Affair’s assertion that OCIs are foreign nationals
and not Indian citizens is most likely inspired by ongoing
litigation before the Delhi High Court wherein an OCI has sought a
declaration from the court that OCIs enjoy fundamental rights just like Indian
citizens.
The requirement for OCIs to take a special permit to engage in
journalistic activities has likely been motivated by right-wing ideologues like
Subramaniam Swamy who has been targeting
journalists like The Wire’s Siddharth Vardarajan because of
their foreign citizenship. There are several other next generation OCIs who
work as journalists in India and whose future will now be under a cloud if the
Ministry of Home Affairs decides to deny them the required permit to continue
working as journalists in India.
Long-term visa programme
This notification by the Ministry of Home Affairs is not surprising. For
some time now, the Ministry of Home Affairs has dedicated its efforts to reduce
the concept of OCIs to a glorified long-term visa programme rather than
implement it as a dual citizenship programme, as was the intent of Parliament
when then Home Minister LK Advani piloted the Citizenship (Amendment) Act,
2003, through Parliament.
The “Statement of Objects & Reasons” accompanying this Bill, which lays down the intent of the
government at the time of introducing a bill in Parliament and which can
legitimately be used by the judiciary to discern the legislative intent, stated
the following:
“Subsequently, the High Level
Committee on Indian Diaspora constituted by the Central
Government, inter alia, recommended the amendment of this Act to provide for
the grant of dual citizenship to persons of Indian origin belonging to certain
specified countries. The Central Government has accordingly decided to make
provisions for the grant of dual citizenship.”
Advani in his introductory speech had clarified once again that the
entire purpose of the Bill was to introduce dual citizenship for the Indian
diaspora. It is therefore disingenuous for the Ministry of Home Affairs to now
claim through a recent notification the claim that OCIs are foreign nationals.
This argument is all the more absurd when viewed in light of the fact that the
phrase OCI literally has the phrase “Indian citizen” in its title.
Lastly, it bears noting that the entire concept of OCIs was brought
through the Citizenship Act, 1955, which is a legislation specifically meant to
regulate the concept of Indian citizenship. There are separate laws like the
Foreigners Act, 1946 and the Foreign Exchange Management Act, 2003, which deal
exclusively with foreigners and their rights in India.
The fact that Parliament sought to locate OCIs in the Citizenship Act
and not the Foreigners Act or FEMA is sufficient proof that Parliament wanted
OCIs to be Indian citizens.
Correct conceptualisation
Rather than declaring OCIs as foreign nationals, the Ministry of Home
Affairs should recognise OCIs as a new class of Indian citizens who enjoy a
different set of rights from Indian citizens holding Indian passports. The
rights to which OCIs are not entitled are mentioned in the Citizenship Act.
This list includes the right to hold public office or voting – the idea being
that OCIs are excluded entirely from the political sphere of citizenship.
Unfortunately, Parliament delegated to the government of India via Section
7 B of the Citizenship Act, the power to decide the remaining rights of OCIs
through notifications. While the legality of such delegation is suspect, there
is also no doubt that no government can deprive any class of citizens of their
fundamental rights.
To argue against such a basic proposition by declaring an entire class
of citizens as foreign nationals, as has been done by the Ministry of Home in
this present case, is quite simple wrong in law. Parliament can lay down the
criteria for citizenship but once it decides to bestow citizenship on any
category of persons, not even Parliament can proceed to deprive that class of
citizens of their fundamental rights.
The very idea of fundamental rights in India is that every person is
born with these rights and the Constitution merely recognises such rights.
If the Home Ministry fails to withdraw its most recent notification, it
may just be the end of India’s short-lived experiment with dual-citizenship. It
will be difficult if not impossible for the Narendra Modi government to reclaim
the trust of OCIs after this latest notification unless it acts swiftly
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