OCI: Supreme Court notice on plea challenging curtailing of rights

The Supreme Court has issued notice on a plea filed by Overseas Citizens of India challenging the curtailment of their rights by virtue of Sections 7B(1), 7D, 8(2), and 9(1) of the Citizenship Act, 1955, and sought directions to declare the same unconstitutional.

A three-judge bench of Chief Justice S.A. Bobde, and Justices A.S. Bopanna and V. Ramasubramanian has sought the response from the Ministry of Law & Justice, External Affairs and Home Affairs on a plea filed by 80 Non-Resident Indians, who alleges that Section 7B(1) of the Citizenship Act is violating Articles 14 and 21 of the Constitution in so far as it grants the Central Government un-canalized and unbridled discretionary powers to decide what fundamental rights overseas citizens can enjoy.

The glaring contentions of the Petitioners include that the Citizenship Act, 1995, thereafter modified by the Citizenship Amendment Acts of 2005 and 2015, brings a great prejudice against the objective of the amendment, to be scilicet to grant dual citizenship to persons like the petitioners who are OCI holders, NRIs, Resident in India, etc. acutely curtails the rights of the Petitioners to enjoy their life and livelihood.

The array of parties on the Petitioner’s side have been classified in the following 5 categories:

a) OCIs who wish to reside in India for a substantial duration if not for the rest of their lives;

b) NRIs who wish to be citizens of the foreign country they presently reside in for any unspecified duration because they wish to engage politically with the administration of laws locally in the foreign places of residence.

c) Goan resident citizens who would like to avail the benefits of European laws by being citizens under Portuguese laws.

d) Highly qualified Indian professionals who wish to be competitive for global opportunities in a global knowledge over their life-time;

e) Parents/relatives of all of the categories (a)-(d)

The petitioners’ case is that Section 7B(1) of the Citizenship Act severely curtails the fundamental rights of Overseas Citizens of India and abrogates the very object of introducing overseas citizenship which was unequivocally and explicitly to grant dual citizenship to Indian Citizens.

The Petitioners’ also challenged the stringent provisions in Section 7D of the Citizenship Act and its excessive discretionary powers by which the Central Government may cancel the Registration of overseas citizens of India, subject them to constant fear and uncertainty in being unable to freely exercise basic human rights in the country and also reduces OCIs to 2nd class citizens, thereby violating article 14 of the Constitution.

Further, the petitioners assailed Section 8(2) of the Citizenship Act alleging it provides that upon the renunciation of Citizenship by an Indian Citizen, his/her minor children are involuntary divested of their citizenship without their express consent and at an age they are unable to legally consent.

Furthermore, the petitioners also assailed the Section 9(1) of the Citizenship Act in so far as it violates the objectives of Section 7A to 7D of the Citizenship Act which was to grant dual citizenship to Indian Citizens and for arbitrarily creating two classes of Citizens under the Constitution, which only recognises one common class of citizens. “Also, Section 9(1) transgresses the implied limitation of Article 11 of the Constitution in so far as it involuntarily divests persons of their Indian Citizenship upon their acquisition of foreign citizenship sans their express or voluntary renunciation of Indian Citizenship thereof,” the plea added.

The petitioners submitted that the present legal regime, created by Section 7B(1), 7D, and 8(2) read with Section 9(1) of the Citizenship Act, violates Articles 14, 21, and 25 of the Constitution since it prevents a group of individuals (the OCIs) from freely exercising their constitutional rights to participate in the social, cultural and religious life of India.

The Writ Petitioners’ also mentioned about how the citizenship laws over the dual citizenship were before the Constituent Assembly. Implicitly, when the draft Articles related to Citizenship were being debated (presently Articles 5 to 11), Dr. Ambedkar in the debate on 11th August, 1949 drew attention to two important limitations which he described as under:

“The first was that this Draft dealt with the limited question of citizenship on the day the Constitution comes into force. And the other point was that all other matters including those which are dealt with by the present Draft, are left to be dealt with by parliament as it considers fit.”

Grounds that have been raised on the bare perusal of the Writ Petition, the points that have been brought up before the Hon’ble Supreme Court are as follows:

a. That they cannot acquire agricultural or plantation properties in India (in terms of the notification issued under section 7B) , there is a hindrance in the access to entry and residence in India.

b. Restrictions on freedom of expression and fetters on participating in the cultural and religious life of India, OCIs are even prevented under FCRA from donating any personal earnings from India or abroad to non-FCRA registered charitable or religious organizations in India, however, NRIs are allowed to do so.

c. They do not have parity with the Indian Citizens for any professions other than doctors, dentists, nurses, pharmacists, advocates, architects, chartered accountants. Consequently, facing difficulty in taking up directorial duties of the organizations.

d. Travel restrictions during the COVID 19 pandemic, where OCI who were permanent residents of India were denied entry during the lockdown.

e. Facing various logistical issues at banks, government offices and even educational institutions. One of the notable grievances brought up by one of the Petitioner was that the petitioner moved to India in lieu of the talked about OCI scheme but after living here 14 years finds out the discrimination between the Indian Citizens and the OCIs in the daily course of business has been aggravating.

f. There is absence of ambiguity in terms of dual citizenship. The averments that have been raised on the citizenship laws being out of step with global practices as the surrounding rules might affect Petitioner’s children and grandchildren who hold OCI status might not get the agricultural land they own or others are residing outside India for educational or professional reasons. Such persons face restrictions in their place of residence as well as they are unable to apply for the citizenship of the country of their residence, for fear of losing Indian Citizenship, and the protection under OCI regime is gravely weak.

g. Prohibition on participating in the civic and political life of India, restrictions on freedom of profession, restrictions on seeking information, issues with adoption.

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Senior Advocate R. Venkatramani, Senior Advocate R. Basant, Senior Advocate Anitha Shenoy, with AOR Srishti Angnihotri appeared for the petitioner Dr Radhika Thappeta & Ors. Before the Apex Court Bench.