REGISTRATION OF OVERSEAS CITIZEN OF INDIA CARDHOLDER
Overseas Citizenship of India (OCI) is a type of permanent residency / Visa available to individuals who are foreigner nationals of Indian origin. The Registration of Overseas citizen of India cardholder is covered under section 7-A of the Citizenship Act, 1955. The following individuals are entitled to apply for the registrations of Overseas Citizen of India cardholder: A foreign national:-
(i) Who was a citizen of India at the time of, or at any time after 26th January, 1950; or
(ii) Who was eligible to become a citizen of India on 26th January, 1950; or
(iii) Who belonged to a territory that became part of India after 15th August, 1947; or
(iv) Who is a child or a grandchild or a great grandchild of such a citizen; or
(v) Who is a minor child of such persons mentioned above; or
(vi) Who is a minor child and whose both parents are citizens of India or one of the parents is a citizen of India - is eligible for registration as OCI cardholder.
Besides, spouse of foreign origin of a citizen of India or spouse of foreign origin of an Overseas Citizen of India Cardholder and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application is also eligible for registration as OCI cardholder. However, no person, who or either of whose parents or grandparents or great grandparents is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, shall be eligible for registration as an Overseas Citizen of India Cardholder.
RIGHTS GRANTED TO AN OVERSEAS CITIZEN OF INDIA CARDHOLDER
That an OCI cardholder is granted several rights under section 7-B of the Citizenship Act, 1955. Section 7-B of the Act is being reproduced as under:-
7-B. 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 as 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 section 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 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) shall be laid before each House of Parliament.
CANCELLATION OF REGISTRATION AS OVERSEAS CITIZEN OF INDIA (OCI Card) The Central Government of India may cancel the registration of the overseas citizens of India cardholder if that individual is covered by any of the grounds under section 7D of the Citizenship Act. The relevant Section 7D of the Citizenship Act, 1955 is reproduced below:-
7D. Cancellation of registration as overseas citizen of India.—The Central Government may, by order, cancel the registration granted under sub-section
(1) of section 7A if it is satisfied that—
(a) the registration as an overseas citizen of India was obtained by means of fraud, false representation or the concealment of any material fact; or
(b) the overseas citizen of India has shown disaffection towards the Constitution of India as by law established; or
(c) the overseas citizen of India has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business or commercial activity that was to his knowledge carried on in such manner as to assist an enemy in that war; or
(d) the overseas citizen of India has, within five years after registration under sub-section (1) of section 7A has been sentenced to imprisonment for a term of not less than two years; or
(e) it is necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.
REVISION AND REVIEW AGAINST ORDERS OF THE CENTRAL GOVERNMENT OF INDIA
That any individual aggrieved by an order made under the Citizenship Act, 1955 may file a Revision and Review under Section 15 and 15A of the Act. Section 15 of the Act pertains to Revision. The section submits that any person aggrieved by an order made under this Act by the prescribed authority or any officer or other authority (other than the Central Government) may, within a period of thirty days from the date of the order, make an application to the Central Government for Revision of that order.
Section 15A of the citizenship Act, 1955, pertains to Review. The section submits that any person aggrieved by an order made by the Central Government may, within thirty days from the date of such order, make an application for Review of such order. It would be pertinent here to understand that Section 15A apprises of the law that any order made by the Central Government may ask the central government to review their decision.
NEED FOR PASSING A SPEAKING ORDER IN REVISION AND REVIEW UNDER SECTION 15 AND 15A OF THE CITIZENSHIP ACT, 1955
The Central Government has to give reasons vide passing a proper speaking order as to why they are dismissing or not entertaining the OCI application. Even such orders are appealable in revision or review, and if the Central Government is of the opinion that such Revision or Review applications are liable to be dismissed, they have to pass a proper speaking order giving reasons. The Hon’ble Supreme Court, in several judgments, has emphasized the logic behind passing a proper speaking order and its relevance.
In a Constitution Bench decision of Hon‘ble Supreme Court in Shri Swamiji of Shri Admar Mutt etc. etc. v. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors, AIR 1980 SC 1, while giving the majority judgment the Hon’ble court referred to Broom‘s Legal Maxims (1939 Edition, page 97) where the principle in Latin runs as: “Ces-sante Ratione Legis Cessat Ipsa Lex”. The English version of the said principle given by the bench is that:-Reason is the soul of the law, and when the reason of any particular law ceases, so does the Law itself. Similarly in the case of Kranti Associates Pvt. Ltd. vs. Masood Ahmed Khan 2011 (273) ELT 345 (SC), the Hon‘ble Supreme Court have discussed the importance of passing a speaking order, i.e. the need to give reasons in support of the decision/order, in all proceedings (whether administrative or quasi-judicial) which affect the rights of the parties involved. From time to time, Court has held that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It is now universally recognized that giving reasons for a certain decision is one of the fundamentals of good administration and a safeguard against arbitrariness. The refusal to give reasons may excite the suspicion that there are probably no good reasons to support the decision. That reasons are useful as they may reveal an error of law, the grounds for an appeal or simply remove what might otherwise be a lingering sense of injustice on the part of the unsuccessful party. When the order to be passed is an appealable order, the requirement of giving reasons would be a real requirement. Therefore, keeping in view the aforementioned precedents, it’s mandatory for the Central Government to give reasons while cancelling the OCI card of any individual.
ARTICLE 226/227 OF THE CONSTITUTION OF INDIA
That on many occasions, even the application for registration of Overseas Citizen of India Cardholder is not entertained by the India consulate due to baseless reasoning; hence, the aggrieved individual can file a writ petition under Article 226 of the Constitution of India to decide such an application. Even if the Revision or Review application is not entertained by the Central Government of India, the aggrieved individual can also file a writ petitioner under Article 226. Even after passing of the final order under Section 15 or 15A of the Citizenship Act, 1955, the aggrieved party can file a petition in the High Court under Article 226/227 of the Constitution of India, for setting aside such orders of the Central Government of India and for granting the aggrieved party the OCI card.
That further it would be relevant to apprise the readers that even foreigners are entitled to protection of Articles 14 and 21 of the Constitution; hence, Article 226 is available to anyone including foreigners and corporations based out of India. The conditions that need to be fulfilled are that a legal right of the complainant should have been violated by a person or an authority falling under the definition of “State” under Article 12 of the Constitution of India. This was held by the Calcutta High Court in the case of Hong Kong & Shanghai Banking v. Union of India (2012) WP No.388 of 2003. Foreigners are given the Right to Constitutional Remedies under Article 32 of the Constitution. The same was also held by The Delhi High Court in the case of Dr Christo Thomas Philip vs Union of India & Ors (2019 SCC Online Del 6426).
CANCELING OCI CARDS WITHOUT ISSUING ANY SHOW-CAUSE NOTICE OR GRANTING ANY REASONABLE OPPORTUNITY OF BEING HEARD TO THE OCI CARDHOLDER IS ILLEGAL AND ARBITRARY
There has been a recent trend in which the Union of India has decided to cancel OCI cards of foreigners who were supporting the farmer's protest or on other grounds. In case such action has been taken without issuing any show-cause notice or granting any reasonable opportunity of being heard to the OCI cardholder, such orders would be illegal and can be challenged in a court of law. That as per the latest Citizenship (Amendment Act) Act, 2019, which has received the assent of the President on the 12th December 2019, provides a special provision pertaining to the OCI cardholders that no order shall be passed against an Overseas Citizen of India without granting them a reasonable opportunity of being heard. Therefore, the Central government of India is mandated to issue a show-cause notice and grant a reasonable opportunity of being heard to the aggrieved party / OCI cardholder before they decide to cancel their OCI card.
Our Law Firm has challenged several orders of the Central Government in which the Central Government had cancelled the OCI cards of the Foreigners on baseless and irrelevant grounds. Just recently, Mr Navkiran Singh Advocate appeared for one of OCI card holders whose card had been cancelled due to the reason that he had not disclosed his previous criminal history at the time of applying for re-issuance of his OCI card. Notice of motion was issued, and the Hon'ble High court of Punjab and Haryana had granted an interim stay to the aggrieved party, and the petitioner was allowed to stay in India until further orders.
Our firm also handled another case where the Central Government of India had denied entertaining the OCI application based on the reasoning that one of the applicant's grandparents was a Pakistan citizen.
Both of the matters are pending consideration before the Hon'ble High Court of Punjab and Haryana.