From limiting their ability to voice grievances to cancellation of cards remain serious threats to such individuals
In the Writ Petition (Civil) 1397/2020 before the hon’ble Supreme Court of India in the case of Dr. Radhika Thappeta v Union of India, which was last listed on 07-05-2024, the Supreme Court will decide whether Section 7D of the Citizenship Act, 1955, and government schemes enacted under the Section, violate the constitutional rights of Overseas Citizens of India. (Legal Observer Trust, 2024).
In the Writ Petition filed on behalf of Dr. Radhika Thappeta on November 24, 2020 by Advocate Ms. Srishti Agnihotri and which has been made available on the website of the Supreme Court Observer despite the Writ Petition pending final disposal and given the current stage which is reflected on the Supreme Court Case Status has been updated as: “PENDING (Motion Hearing [ORDERS (INCOMPLETE MATTERS / IAs / CRLMPs)]) -Ord dt:30-04-2024”.
The petitioner Radhika Thappeta has neatly delineated the ‘Hardship and discrimination suffered by OCIs’ in the petition dated: 23rd November, 2020, in the said manner:
“The basic rights of OCIs that are curtailed by the Citizenship Act include the right to residency in India, the right to employment in India and the right to participate in Indian cultural, religious and social life. These hardships, as suffered by the Petitioners, are illustrated as under:” (Writ Petition (Civil) 1397/2020, page: G)
1. Hindered access to entry and
residence in India:
An OCI card holder is allowed entry into India only on parity with a life-long multiple entry visa holder and the OCI status is only valid during the period of validity of a foreign passport. Further, Section 7D of the Citizenship Act allows the Central Government to cancel the registration of OCIs and prohibit them from residing in India over the violation of any law or for showing disaffection to the Constitution of India...;
2. Restrictions on the freedom of
expression in India:
Section 7D(b) of the Citizenship Act allows the Central Government to cancel a person’s OCI registration if they show disaffection to the Constitution of India and Section 7D(da) allows cancellation of OCI registration for the violation of any law. Both these provisions under Section 7D are arbitrary and have a chilling effect on the freedom of expression of OCIs, several of whom in spite of being permanently resident in India cannot express peaceful dissent against the state for fear that such dissent will amount to either disaffection to the Constitution of India or the violation of any law so prescribed;
3. Restrictions on the freedom of occupation and profession:
While the MHA notification dated 15 November 2019 at para 6 (vii) (B) allows OCIs to practice the professions of doctors, architects, advocates and chartered accountants as per the relevant acts, there are a whole list of other provisions that are arbitrarily left out of such a list without sufficient reasons. By limiting the number of professions that OCIs can have parity with NRIs in pursuing, several OCIs practicing other non-enumerated professions are hindered from meaningfully participating in and contributing to their professional streams in India;
4. Prohibition on participating in the civic and political life of India:
Although several OCIs reside and pay taxes in India, such persons are unable to meaningfully voice their grievance with local government authorities over civic infrastructure out of fear that their overseas citizenship may be cancelled for expressing their right to peacefully raise public grievances by virtue of Section 7D of the Citizenship Act;
5. Restrictions on seeking
information:
Even while OCIs work and reside permanently in India, they are often disentitled to seek information from state authorities under the Right to Information Act. (Writ Petition (Civil) 1397/2020, page: I).
In the same petition filed on behalf of Radhika Thappeta, the following international precedent has been quoted for its persuasive value:
“the US Supreme Court in Afroyim v. Rusk [387 US 253] held that the US Congress has no legislative power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof.” (Writ Petition (Civil) 1397/2020, page: M).
The demand for dual citizenship by Indians
With rapid globalization in the 1990s and the early 2000s, there was a growing demand among certain Indian diaspora for India to grant dual citizenship, including NRIs, OCIs, Goan resident citizens, highly qualified Indian professionals, and their parents and relatives.
To explore the demands of the Indian diaspora that sought dual citizenship, the Central Government set up a High Level Committee (“HLC”) under the chairmanship of Dr. LM Singhvi, to make recommendations on the aspect of dual citizenship.
The committee submitted a report in 2002 that concluded that Dual Citizenship ought to be granted to persons of Indian origin or Non-Resident Indians who were nationals of a specified list of countries.
The HLC was cognizant of the desire of the Indian diaspora to participate in the cultural and social life of India and in this light observed as under:
“36.6. Dual citizenship would also help to perpetuate and cement the links of the younger generation of the Diaspora with India as they will be keen to keep in touch with their elders in India as well as relate to their roots. There is much to be gained by the introduction of dual nationality. The Diaspora in North America, Europe, Australia, New Zealand and Singapore yearns and longs for it. It will create a climate conducive to Diaspora’s fuller participation in philanthropy, economic developments, technology transfer, cultural dissemination and overseas political advocacy on behalf of India.” (HLC Report 2002).
The observations of the HLC hold even more relevance in today’s day and age, where ease of travel has reduced the difficulties in doing business and visiting family in one’s country of origin.
Interlocutory Observations pending final hearing in Writ Petition
(Civil) 1397/2020:
On May 20th, 2022, in the connected Interlocutory Application No. 74336/2022:
“Justices Abdul Nazeer and Krishna Murari ordered the Kerala government to allow State medical college candidates belonging to the Overseas Citizens of India (OCI) category to apply for Non-Residential Indian seats without providing proof of foreign residence.
The Court delivered this Interim Order while hearing OCIs’ challenges to Section 7D of the Citizenship Act, 1955 (‘the Act’). The OCIs argue that Parliament had previously created the OCI category to effectively grant dual citizenship to them. However, S. 7D takes away Indian citizenship rights from OCIs—leaving their status as residents at the unchecked discretion of the Executive. OCIs claim that since their citizenship status is at par with NRIs, they should have equivalent rights.
The Bench stated that waiving the requirement would only extend the benefits of NRI seats to a wider pool. Agreeing that some OCIs may have no connection to a foreign country, the Bench directed the Kerala government to remove the proof of residence requirement.
The main challenge to S. 7D of the Citizenship Act, 1995 remains pending. It will be heard in July, after the Court’s summer vacation.” (Legal Observer Trust, 2024).
