- In a new notification, the Ministry of Home Affairs, also introduces a series of new restrictions including a requirement for OCIs to secure a special permit to undertake “any research,” to undertake any “missionary” or “Tablighi” or “journalistic activities.”
In a new development for Overseas Citizens of India, the Ministry of Home Affairs issued a notification on March 4 altering the relationship 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.
This notification by the Ministry of Home Affairs is not surprising. For some time now, the ministry has dedicated its efforts to reduce the concept of OCIs to a glorified long-term visa program rather than implement it as a dual citizenship program, as was the intent of Parliament when then Home Minister L.K. 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 in 2003 had clarified 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.
Apart from classifying OCIs as “foreign nationals,” the new notification introduces a series of new restrictions including 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, can 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.
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 B.V. Nagarathna and N.S. 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 Affairs’ 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.
Amy Ghosh is a practicing lawyer in Los Angeles. She migrated to the U.S. in 1987 and has been married to a (retired) rocket scientist for 35 years. She has two adult children. Before becoming an attorney, she was a biochemist and worked for several well-known hospitals and laboratories. Amy continues to be very much in touch with her motherland India and her favorite city Calcutta. She has recently produced a Bengali movie “Urojahaj —The Flight” by highly acclaimed filmmaker Buddhdeb Dasgupta. She is continually looking for a meaningful opportunity to contribute to society through her legal and social work.