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THE PLIGHT OF OVERSEAS CITIZENS OF INDIA, ARE THEY CITIZENS OR NOT?
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THE PLIGHT OF OVERSEAS CITIZENS OF
INDIA, ARE THEY CITIZENS OR NOT?
AUTHORED BY
- VAIBHAV S
Abstract
This paper critically examines the Overseas
Citizenship of India (OCI) scheme and its constitutionality, tracing its
origins from the demands for dual citizenship in the 1990s to the enactment of
the Citizenship Amendment Acts of 2003 and 2005, following the LM Singhvi
Committee’s recommendations. The paper explores the plenary powers of the
Indian Parliament under Article
11 to regulate citizenship matters,
emphasizing that the Constitution
does not explicitly bar dual citizenship. It argues that the classification of
OCI cardholders under Section 7B of the Citizenship Act violates Article 14 by
creating two classes of citizens and reducing OCIs to second-class status,
especially after the 2021 MHA notification, which restricted their educational
rights. The paper also invokes the doctrine of non-retrogression, asserting
that once rights are conferred, the State cannot arbitrarily retract them.
Through a detailed analysis, it contends that such measures undermine the
objectives of the original amendment and the progressive realization of rights
for the Indian diaspora, thereby questioning the constitutional validity of the
current OCI framework.
KEYWORDS: Dual citizenship, non-retrogression, plenary powers, second-
class, arbitrary
Research Question
Whether Overseas Citizens of India are Citizens by virtue of the Rights
granted to them Whether Overseas Citizens of India
can claim parity with Citizens of India
Whether the OCI scheme
is violative of Article 14, 19 and 21
Statement of Problem
The OCI scheme offers certain privileges to individuals of Indian origin
abroad in order to foster a sense of belonging and connection to India with an
aim to enhance cultural exchange and economic ties. However, it does not confer full citizenship rights,
which leads to concerns
regarding equal treatment under the law, and whether they are entitled to equal
treatment as Citizens of India.
Research Methodology
This Article will employ a doctrinal
methodology in order to assess
the relevant laws granting
these rights and their consonance with the Constitution.
Introduction
The Indian Diaspora
during the 1990s fashioned a demand for granting dual citizenship. These demands were also reiterated and
supported by NRI’s, Goan resident Citizens and other professionals who thought it fit considering India’s International Obligations and friendly ties. Considering these demands, the
Indian Government realized the potential benefits of dual citizenship and henceforth constituted a High-Level Committee, 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.1 The Committee
observed that,
“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.”2
Pursuant to the recommendations of the LM Singhvi committee, the Central
Government enacted the Citizenship Amendment Act, 2003, which added Sections 7A
to 7D under the heading Overseas Citizens. The object and reasons of the
Amendment were to explicitly “provide for the grant of dual citizenship”.3 The specific objective of “Overseas
Citizenship” being to grant dual Citizenship and the recommendations of the HLC to grant dual citizenship
was again affirmed by the Citizenship Amendment Act, 2005 which sought to
extend OCI eligibility to all Persons of Indian Origin other than PIOs from
Pakistan and Bangladesh.4
The Plenary Powers
of the Parliament on matters
relating to Citizenship
The Constitution of India deals with Citizenship under Articles 5 to 11. However, there exists a special
law relating to citizenship which provides how citizenship can be acquired, renounced and terminated. Article 9 of the Constitution barred
dual citizenship at the time of the commencement of the Constitution. Article 9
provides:
“Person voluntarily acquiring citizenship of
a foreign State not to be citizens: 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”.5
However, the Parliament under Article 11 is vested
with the plenary
power to make laws with respect to citizenship, which
provides that:
“Nothing in the foregoing provisions of this
Part shall derogate from the power of Parliament to make any provision with
respect to the acquisition and termination of citizenship and all other matters
relating to citizenship.” 6
This power becomes plenary when read with Articles 245, 246 and Entry 17
of Union List under the seventh schedule. The idea of dual Citizenship is not
one that is expressly barred under the Constitution as it was clearly not the
intention of the drafters to bar the same, this can be evidenced by Dr. B.R Ambedkar’s explanation to Article 11:
“It is not the object
of this particular article to lay down a permanent law of citizenship for this country. The
business of laying down a permanent law of citizenship has been left to
Parliament, and as Members will see from the wording of article 6 as I have
moved, the entire matter regarding citizenship has been left to Parliament to determine
by any law that it may deem fit. The effect of article 6 is this, that
Parliament may not only take away citizenship from those who are declared
to be citizens on the date of the
commencement of this Constitution by the provisions of article 5 and those
that follow, but Parliament
may make altogether a new law embodying new principles. That is the first
proposition that has to be borne in mind by those who will participate in the debate on these articles. They must not understand that the provisions
that we are making for citizenship on the date of the commencement of this
Constitution are going to be permanent or unalterable. All that we are doing
is to decide ad hoc for the time being”7
Are OCI’s citizens
or not
The OCI’s
are granted rights under Section
7B of the Citizenship Act, which provides:
“7B. Conferment of rights on Overseas Citizen of India
Cardholder (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 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 sections 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
the 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) 18 shall be laid before each House of Parliament.”8
Section 7B doesn’t provide an exhaustive list of rights available to
OCI’s rather it provides those rights which aren’t available to OCI’s. The
above-mentioned provisions under Section 7B do not exclude right to freedom of
speech and expression. However, it is pertinent to note that Article 19(1) is
exclusively available only to citizens. Therefore, the reasonable interference
from the conferment of rights under Article 19 is that OCI’s are deemed to be
citizens and are placed on similar footing as citizens.
This is further supported by a notification by the Ministry
of Home Affairs on 11th April 2005, which granted
life-long visa for visiting India for any purpose, insofar
as economic, financial and educational fields, parity
with Non-Resident Indians was provided, except for acquisition of agricultural
or plantation properties.9
Further, by subsequent notification dated 05.01.2007 issued under Section
7B(1) of Act, 1955,
though no right relating to the field of education was referred to, the OCI
Cardholders were given similar treatment with Non-Resident Indians in the
matter of inter-country adoption of Indian children and also to be treated
at par with the Indian
Nationals in the matter of tariffs in air
fares and also for same entry fee being charged
to domestic Indian
visitors to visit National
Parks and Wildlife Sanctuaries.10
Additionally, the MHA through a notification dated 05.01.2009, the OCI
Cardholders were given the right to pursue the professions indicated therein,
in India and also to appear for the All-Indian Pre-Medical Test or such other
tests to make them eligible for admission in pursuance of the provisions
contained in the relevant Acts.11
Therefore, from the above three notifications and the rights
granted to OCI’s
it is clear that they are similarly placed as citizens in
all respects except for their incident of birth in a foreign nation, and in
effect can be deemed to be Citizens.
Constitutionality of the OCI scheme
The Citizenship Amendment Act, 2003 was enacted with a specific object
contained in its objects and reasons
to “provide for the grant of dual citizenship”.12This is in line with the L.M
Singhvi committee recommendations to grant dual citizenship. However, the Union
Government under Section
7B has chosen to provide
certain rights and excluding certain
rights. This is in clear contravention of Article 14 as the Constitution
only envisages one class of citizens, who shall be accorded equal protection of
laws and equality before the law.
Further such a scheme clearly
falls foul of Article 14 as via a subsequent notification dated 4th
March, 2021, under proviso to clause 4(ii) and Explanation (1), the Union government limited the parity between NRI’s and
OCI’s only NRI seats and supernumerary seats.13
Through the impugned portion of the notification, the parity which existed with
Non-Resident Indians including in the field of education has been modified
to indicate their eligibility for admission
only against any “Non-Resident Indian seat” or any supernumerary seat.14 The provision contained in the impugned
portion of the notification dated
04.03.2021 would indicate
that the OCI Cardholders even
if they have settled down in India and have undergone their entire educational
course in India but not having renounced the citizenship of a foreign country
and not having acquired the citizenship of India will now be denied the
opportunity of securing a medical seat in the general pool of Indian citizens
including NRIs and will have to compete only for the limited 27 seats available
under the NRI quota.15
This notification by the Union Government and Section 7B are violative of Article 14 as they create two classes of
citizens, degrading OCI’s to second class citizens. Although, the Union Government has the plenary power under
Article 11 to make laws on citizenship, this classification made between
citizens giving only limited rights to OCI’s does not amount to reasonable classification. For a classification to be reasonable it has to satisfy the twin test laid
down in the case of Anwar Ali Sarkar v. State of West Bengal,16 which provides as under:
“There would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped
together from others left out of
the group; and (ii) that that differentia has a rational
relation to the object sought
to be achieved by the
impugned legislative or executive action.”17
“It is now well-settled that the State can
make a reasonable classification for the purpose of legislation. It is equally
well settled that the classification in order to be reasonable must satisfy two tests (i) the classification must be founded
on intelligible differentia and (ii) the differentia
must have a rational relation with the object sought to be achieved by the legislation
in question. In this connection it must be borne in mind that the object itself should
be lawful. The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the
discrimination cannot be justified on the ground that there is a reasonable
classification because it has rational relation to the, object sought to be achieved.”19
The notification dated march 2021, by the MHA reduces the OCI’s to second
class citizens, which is against
the objects and reasons of introducing the Citizenship Amendment Act, 2003. The
classification so created by the notification and Section 7B is in itself
discriminatory and does not stand the test of reasonable classification.
Doctrine of non-retrogression
In its purest form, the non-retrogression principle
holds that government may extend protection beyond what the Constitution
requires, but it cannot retreat from that extension once made.20 The
Government through the Amendment of 2003, extended
OCI certain rights
and by further notifications granted them parity with NRI’s and Indian
Citizens. This doctrine was used in Navtej Singh Johar & Ors. vs. Union of
India,21 wherein it is observed as
hereunder:
“199. What the words of Lord Roskill suggest is that it is not only the interpretation of the Constitution which needs
to be pragmatic, due to the dynamic nature of a constitution, but also the legal policy
of a particular epoch must be in consonance with the current and the present needs of
the society, which are sensible in the prevalent times and at the same time
easy to apply. 200. This also gives birth to an equally important role of the
State to implement the constitutional rights effectively. And of course, when
we say State, it includes all the three organs, that is, the legislature, the
executive as well as the judiciary. The State has to show concerned commitment which would result in 29 concrete actions. The State has an
obligation to take appropriate measures for the progressive realisation of
economic, social and cultural rights. 201. The doctrine of progressive
realisation of rights, as a natural corollary, gives birth to the doctrine
of non-retrogression. As per this doctrine, there
must not be any regression of rights. In a progressive and an ever-improving society, there is no place for retreat. The society has to march
ahead. 202. The doctrine of non-retrogression sets forth
that the State should not take measures or steps that deliberately lead to
retrogression on the enjoyment of rights either under the Constitution or
otherwise.”22
Therefore, by taking away such a parity vide notification of 2021, it
violates the doctrine of non-retrogression.
Conclusion
The existing framework of the Overseas
Citizenship of India scheme, subsequent notifications, are constitutionally flawed. The classification of OCI cardholders as a
separate class, stripped of rights otherwise available to citizens, undermines
the principles of equality enshrined in Article 14 of the Constitution. The intent behind
the Citizenship Amendment Acts of 2003 and
2005 was to grant dual citizenship in line with recommendations of the L.M Singhvi committee report. However, by restricting their rights
through selective exclusions, the current legal framework is in violation of its objects
and reduces OCIs to a second-class status.
Further, the doctrine of
non-retrogression prohibits the State from retracting rights once conferred.
The reduction in parity between OCIs and citizens through the 2021 notification
violates this doctrine and disrupts the legitimate expectations of OCIs, who
should be deemed citizens for most practical purposes. Therefore, OCI’s are
deemed to be citizens as the constitution does not envisage two classes of
citizens and the existing framework under Section 7B is unconstitutional.
6 INDIA CONST. art. 11.
7 CONSTITUTIONAL ASSEMBLY
DEBATES, Book No.1, Volume IX, 11th August
1949, Speech by Dr. B.R. Ambedkar
8 Section 7B, Citizenship Act, 1955
12 Minsitry of Home Affairs,
S.O. 1050(E), (notified on 4th March 2021)
19 Nagpur Improvement Trust v. Vithal Rao (1973)
1 SCC 500
Article Information
THE PLIGHT OF OVERSEAS CITIZENS OF INDIA, ARE THEY CITIZENS OR NOT?
Authors: VAIBHAV S
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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