Reining in the Government's Arbitrary Revocation of OCI Status

Introduction

The Overseas Citizen of India (OCI) category facilitates visa-free entry, employment, and business opportunities for foreign citizens without requiring them to relinquish their foreign citizenship. Section 7 of the Citizenship Act, 1955 grants the OCI status to individuals holding foreign passports who have ancestral or parental ties to India. However, following an amendment to the Act in 2015, OCIs are no longer considered citizens of India; rather, they are deemed mere cardholders and, accordingly, do not enjoy citizenship rights such as voting, contesting public elections, and reservation in public employment.

In a recent development, the Supreme Court, while addressing the Constitutional Rights of Overseas Citizens of India in the case of Dr. Radhika Thappeta v. Union of India, will decide whether Section 7D of the Act, and government schemes enacted under it, violate those rights. Section 7D further empowers the Government to revoke OCI status on certain grounds, including expressing disaffection towards the Constitution or in the interest of India’s sovereignty and integrity.

To this end, this article delves into the arbitrary nature of the unchecked discretion granted to the Government by Section 7D of the Act. Additionally, it examines the Writ Petition filed by the petitioners, particularly challenging proviso 7D of the Act, on grounds of being ultra vires Article 14, 19, and 21 of the Constitution of India. These provisions are thereby argued to violate fundamental rights to life, equality, freedom of expression, and dignity. It is further contended that these provisions contradict the very objective of the amendment, which aims to grant dual citizenship to individuals like them, thereby severely curtailing their rights and hindering their meaningful enjoyment of life and livelihood.

Examining the Government’s Discretion under 7D

In scrutinizing Section 7D of the Citizenship Act, it becomes evident that the expansive authority vested in the central government to annul OCI registrations rests upon nebulous criterions such as expressing “disaffection” towards the constitution or actions perceived as detrimental to the country’s “sovereignty and integrity.” The crux of the matter lies in the glaring absence of precise definitions for these terms. What exactly constitutes “disaffection”? Is it a mere critical social media post or also participation in a public debate? This inherent ambiguity renders interpretation entirely subjective, fostering an atmosphere of perpetual fear and uncertainty for OCIs, while also effectively silencing their ability to exercise basic human rights freely for fear of losing their OCI status.

Moreover, the concept of citizenship itself transcends a mere legal status; it embodies a binding principle that forges a connection between the individual and the nation, necessitating certain allegiances while guaranteeing freedoms and choices. This notion gains particular significance in discussions surrounding the status of OCIs. Notably, the International Court of Justice in the Nottebohm case (Liechtenstein v. Guatemala), established a fundamental principle: nationality is grounded in a “genuine connection” – a social and emotional attachment to a country, alongside reciprocal rights and duties. This principle resonates profoundly with the circumstances of many OCIs who maintain strong ties to India despite residing elsewhere.

Additionally, the complexities of the modern world, such as globalization, migration, and cultural exchange add layers of intricacy to the concept of citizenship further underscoring the imperative to reassess the traditional OCI framework, empowering individuals to shape their lives, secure their livelihoods, and access essential rights. To this end, the severe curtailment of OCI rights, compounded by the unchecked discretionary power of the central government to revoke their status, undermines the very essence of the OCI scheme. The current scenario consigns OCIs to a status akin to second-class citizenship, devoid of the rights and security enjoyed by regular citizens. This arbitrary exercise of discretion by the government further opens the floodgates to the potential abuse of power.

Weathering the Challenge of Constitutional Validity

Despite residing beyond India’s territorial confines, OCIs ideally should be entitled to the full array of constitutionally enshrined safeguards, akin to any other citizen. This fundamental tenet of overseas “citizenship” underscores the necessity for parity, rendering any disparity a direct infringement of Article 14, which mandates equality before the law.

To take, for instance, the palpable discrepancy in admissions to educational institutions between OCIs and Non-Resident Indians (NRIs) via all-India entrance tests such as such as National Eligibility cum Entrance Test, Joint Entrance Examination or other such all-India professional tests – rather evidently constitute an unreasonable classification. The notification confines OCIs solely to NRI/supernumerary seats – disregarding their substantial connections to India. Moreover, many OCIs also have had long-term residency in India, along with actively contributing to the nation’s economy through tax payments and participation in the workforce.

Furthermore, the arbitrary nature of Section 7D only exacerbates the issue. Granting the government the discretion to determine expressions deemed “disaffectionate” towards the constitution or contrary to the “sovereignty and integrity” of the nation not only curtails the fundamental right to free expression under Article 19 of the Constitution but also stifles dissent. If we consider the scenario of an OCI expressing concerns about a government policy online – under the present vague definition, this act could be construed as “disaffection” and lead to the revocation of OCI status. This chilling effect stifles dissent and undermines the foundation of a free society while also further accentuating inequality.

Simply put, what may not warrant citizenship revocation for an ordinary citizen should similarly not apply to OCI holders. Moreover, subjecting OCIs to such uncertainty compromises their liberty and right to life under Article 21 of the Indian Constitution. In essence, rectifying these discrepancies is imperative to uphold the foundational principles of equality, liberty, and justice enshrined in the Indian Constitution. Ensuring that OCIs receive equitable treatment is not just a legal obligation but a moral imperative, reflecting the inclusive and egalitarian values of India’s democratic framework.

To Conclude: Reconciling Objectives with Realities

The OCI scheme was envisioned as a bridge, fostering closer ties between India and its diaspora. It aimed to offer individuals with ancestral or parental connections to India – a path to dual citizenship. This status promised a range of benefits – visa-free entry, business opportunities, and the ability to reside and work in India. Essentially, it offered a way for these individuals to maintain a strong connection to their heritage while building lives abroad.

However, the current reality for OCIs falls short of the initial promise. The 2015 amendment which stripped them of key citizenship rights, left them in a nebulous space between a citizen and a foreigner. The OCIs are now denied the right to vote, hold public office, or access certain social welfare benefits. Additionally, Section 7D grants the government broad and largely undefined power to revoke OCI status, fostering insecurity and anxiety among this group. This disconnect between the scheme’s original intent and the current limitations experienced by OCIs necessitates a reevaluation of the framework.

To this end, reconciling the original intent of the OCI scheme with the current limitations faced by OCIs requires a much more nuanced approach:

• Clearly Defining Revocation Criteria: The ambiguity surrounding Section 7D needs to be addressed. Clearly defined parameters for revoking OCI status, based on objective evidence of criminal activity or threats to national security, would alleviate the current climate of fear and uncertainty. OCIs deserve to know exactly what constitutes unacceptable behavior.

• Safeguarding Fundamental Rights: The fundamental rights like right to equality, freedom of speech and expression and so on as enshrined in the Indian Constitution, must be explicitly protected for OCIs. Dissent and critical engagement shouldn’t be misconstrued as “disaffection.”

• A Tiered OCI System: A tiered system based on the strength of an OCI’s connection to India could be explored. Certain factors like long-term residency, property ownership, or contributions to the Indian economy could determine access to specific benefits. For instance, OCIs with deeper ties might be eligible for voting rights or certain social welfare programs. This would incentivize stronger engagement with India while acknowledging the varying degrees of connection within the OCI community.

• Judicial Review: Introducing a mechanism for judicial review of OCI revocation decisions would provide a crucial safeguard against arbitrary government action. This would ensure fairness and transparency in the process.

Therefore, by implementing these measures, the OCI scheme can evolve into a more meaningful bridge between India and its diaspora. It can offer a secure path for individuals to connect with their heritage while respecting their established citizenship elsewhere. A nuanced framework that addresses the concerns of OCIs will not only foster stronger ties but also create a more inclusive and welcoming environment for this valuable segment of the Indian community.

Featured Image- Outlook India