Overseas Citizenship of India [OCI]

The Overseas Citizenship of India (OCI) Scheme was introduced by amending the Citizenship Act, 1955 in August 2005.The Scheme provides for registration as Overseas Citizen of India (OCI) of all Persons of Indian Origin (PIOs) who were citizens of India on 26th January, 1950 or there after or were eligible to become citizens of India on 26th January, 1950 except who is or had been a citizen of Pakistan, Bangladesh.

persons of Indian origin who had taken up citizenship of another country could still obtain an Overseas Citizenship of India (OCI) and as per the Citizenship Amendment Act of 2008, under a scheme promoted by the amendment, the eligibility was to a foreign national who, inter alia, was a citizen of India at or any time after 26.01.1950. The scheme provided for a multiple entry of lifelong visa for visiting India and issuance of a certificate very much akin to the Indian passport in appearance.

An Overseas Citizen of India can enjoy restricted rights. The rights which are enjoyed by the Overseas Citizens of India are by virtue of Section 7(B) of the Citizenship Act, 1955. This provision opens with non obstante clause. The persons covered by the said provision are conferred with such rights other than the rights specified under Sub-section (2), as the Central Government may, by notification in official Gazette, specified in this behalf. That includes restriction on employment in public services and posts in connection with the affairs of the Union or of any State etc. It is not necessary to elaborate on this aspect, except to observe that the Visa restriction imposed on the Petitioners as foreigners and noted in the passport, by no stretch of imagination, can be said to be excessive. That restriction has the backing of law.

Status:-in any event, Overseas Citizenship of India cannot be equated to regular citizen of India.

Provision from the Citizenship Act, 1955

OVERSEAS CITIZENSHIP
7A. Registration of overseas citizens of India.- The Central Government may, subject to such conditions and restrictions as may be prescribed, on an application made in this behalf, register as an overseas citizen of India-

(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 become part of India after the 15th day of August, 1947; or

(2) An overseas citizen of India 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 section 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 a 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.

7C. Renunciation of overseas citizenship.- (1) If any overseas citizen of India of full age and capacity makes in the prescribed manner a declaration renouncing his overseas citizenship of India, the declaration shall be registered by the Central Government, and; upon such registration, that person shall cease to be an overseas citizen of India.

(2) Where a person ceases to be an overseas citizen of India under subsection
(1), every minor child of that person registered as an overseas citizen of India, shall thereupon cease to be an overseas citizen of India.

7D. Cancellation of registration as overseas citizen of India.- The Central Government may, by order, cancel the registration granted under sub-section(1) of section 7A if it is satisfied that-
(a) the registration as an overseas citizen of India was obtained by means of fraud, false representation or the concealment of any material fact; or
(b) the overseas citizen of India has shown disaffection towards the Constitution of India as by law established; or
(c) the overseas citizen of India has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business or commercial activity that was to his knowledge carried on in such manner as to assist an enemy in that war; or
(d) the overseas citizen of India has, within five years after registration under sub-section(1) of section 7A has been sentenced to imprisonment for a term of not less than two years; or
(e) it is necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.

The Citizenship Act, 1955 is enacted pursuant to Article 11. It is also relevant the following provisions of the said Act:

“2. In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), for clause (ee), the following clause shall be substituted, namely:–

‘(ee) “Overseas Citizen of India Cardholder” means a person registered as an Overseas Citizen of India Cardholder by the Central Government under section 7A.

7A. (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 a 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 a 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 a 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 a 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 India 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. (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 as 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 in regard to registration as a voter;

(g) under sections 3 and 4 of the Representation of the People Act, 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 section 6 of the Representation of the People Act, 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 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.”

17. A careful scrutiny of the above said provisions of Citizenship Act, 1955 makes it very clear that OCI cannot be equated to Dual Citizenship and Article 9 of the Constitution of India states that “No person shall be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily acquired the citizenship of any foreign State.

18. Various notifications were also issued by the Ministry of Home Affairs in exercise of powers conferred under Section 7-B of the Citizenship Act, 1955 and it is relevant to extract the same:

Ministry of Home Affairs, Notl. No. S.O. 542 (E), dated April 11, 2005, published in the Gazette of India, Extra., Para II, Section 3(ii), dated 11th April, 2005, P.2. No. 373 [F. No. 26011/2/2005-IC.I]

In exercise of powers conferred by sub-section (1) of Section 7-B of the Citizenship Act, 1955 (57 of 1995), the Central Government hereby specifies the following rights to which the persons registered as Overseas Citizens of India under Section 7-A of the said Act shall be entitled, namely:-

(a) grant of multiple entry lifelong visa for visiting India for any purpose;

(b) exemption from registration with Foreign Regional Registration Officer or Foreign Registration Officer for any length of stay in India; and

(c) parity with Non-Resident Indians in respect of all facilities available to them in economic, financial and educational fields except in matters relating to the acquisition of agricultural and plantation properties.

Ministry of Overseas Indian Affairs, Noti. No. S.O. 12 (E), dated January 5, 2007, published in the Gazette of India, Extra., Para II, Section 3(i), dated 6th January, 2007 P.1. No. 7 [F. No. OI-16011/10/2006-DS]

In exercise of powers conferred by sub-section (1) of Section 7-B of the Citizenship Act, 1955 (57 of 1995), the Central Government hereby specifies the following rights to which the persons registered as Overseas Citizens of India under Section 7-A of the said Act shall be entitled, with effect from the date of publication of this notification in the Official Gazette, namely:-

(a) Registered Overseas Citizens of India shall be treated at par with Non-Resident Indians in the matter of inter-country adoption of Indian children.

(b) Registered Overseas Citizens of India shall be treated at par with resident Indian nationals in the matter of tariffs in air fares in domestic sectors in India.

(c) Registered Overseas Citizens of India shall be charged the same entry fee as domestic Indian visitors to visit national parks and wildlife sanctuaries in India.

Ministry of Overseas Indian Affairs, Noti. No. S.O. 36 (E), dated January 5, 2009, published in the Gazette of India, Extra., Para II, Section 3(ii), dated 6th January, 2009 P.1. No. 33 [F. No. OI-15013/13/2008-DS]

In exercise of powers conferred by sub-section (1) of Section 7-B of the Citizenship Act, 1955 (57 of 1995), and in continuation of the notifications of the Government of India in the Ministry of Home Affairs, Number S.O. 542(E) dated the 11th April, 2005 (2005-CCL-III-386 [126]) and in the Ministry of Overseas Affairs, S.O. 12(E), dated the 6th January, 2007 (2007-CCL-III-131 [49]), the Central Government hereby specifies the following rights to which the persons registered as Overseas Citizens of India under Section 7-A 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 Acts, 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 Citizenship Act, 1955 was amended during August, 2005 and the scheme of OCI was introduced taking into account that such citizens contribute to economic prosperity in the form of foreign exchange.

Citizenship vs Nationality

As far as the legal position in India is concerned, wherever a reference is made to an Indian ‘national’, in law it means an Indian ‘citizen’. But the vice versa is not true. In The State Trading Corporation of India Ltd. and Others Vs. The Commercial Tax Officer, Visakhapatnam and Others, AIR 1963 SC 1811 : (1963) 33 CompCas 1057 : (1964) 4 SCR 99 the Supreme Court explained:

“But the question still remains whether nationality” and “citizenship” are interchangeable terms. -‘ Nationality’ has reference to the jural relationship which may arise for consideration under international law. On the other hand ‘citizenship’ has reference to the jural relationship under municipal law. In other words, nationality determines the civil rights of a person, natural or artificial, particularly with reference to international law, whereas citizenship is intimately connected with civic rights under municipal law. Hence, all citizens are nationals of a particular State, but all nationals may not be citizens of the State. In other words, citizens are those persons who have full political rights as distinguished from nationals, who may not enjoy full political rights and are still domiciled in that country (vide P. Weis-Nationality and Statelessness in International Law pp. 4-6; and Oppenheim’s International Law, Vol. 1. pp. 642, 644).

54. The Act and the policy refer to the notion of ‘citizenship’ and not ‘nationality’. Theoretically it may be possible to argue that nationality and citizenship are not necessarily one and the same thing. But where the requirement in terms of Article 9 of the Constitution of India read with Section 7B of the Act is to demonstrate that the person is an Indian citizen within the meaning of that statute, it is not enough to show that the person is an Indian ‘national’. Absent an explicit recognition of such status in law, a ‘national’ may not per se be entitled to the same treatment as a ‘citizen’.

……….

56. This Court is unable to accept the above submission. A uniform policy had to be adopted on the question of permitting PIOs and OCIs to represent India in international sporting events. To reiterate, it is possible that this departure from the past practice might prove to be detrimental to some of the PIOs and OCIs who were expecting to represent India in international sporting events for all times to come. However, the mere fact that it would adversely affect some persons does not make a uniform policy that is based on rational criteria, arbitrary or unreasonable. The entire life of a sportsperson does not hinge only on representing a country in an international sporting event. In each field of sports, there are several competitive tournaments held throughout the year all over the world where participation does not hinge on nationality.

The Delhi High Court in the above cited judgment has concluded that OCI or a person of Indian origin cannot claim any right to represent India in international events.