On the eve of Pravasi Bharatiya Divas, a plea by an Overseas Citizen of India: It’s time that government addresses ambiguities on the legal status of OCIs

On January 9, the anniversary of Mahatma Gandhi’s return to India from South Africa, the government will observe the 17th Pravasi Bharatiya Divas (PBD) in Indore, Madhya Pradesh. The day is meant to celebrate the contributions of India’s diaspora. The theme for this year’s event is, “Diaspora: Reliable Partners for India’s Progress in Amrit Kaal”.

As in earlier PBDs, pravasi men and women will be recognised for their contributions to the country. However, the glitz and glamour of the event shouldn’t blinker us towards uncomfortable issues, including those related to the legal status of Overseas Citizens of India (OCIs).

Originally conceptualised in 2003 by the then NDA government led by Prime Minister Atal Bihari Vajpayee, the OCI scheme was envisaged as a dual-citizenship project: OCIs would enjoy all rights as normal citizens except the right to hold public office and cast their vote. The Vajpayee government introduced the Citizenship (Amendment) Bill, 2003 in Parliament. The statement accompanying the Bill, that was passed by Parliament in December that year clearly stated that it was meant to provide dual citizenship to persons of Indian origin from certain countries. It was a progressive move by a confident country to recognise and utilise the talent and resources of its sizeable diaspora who held foreign citizenships; it was also in line with global practices.

Nearly two decades later, the Union Home Ministry is downgrading the OCI scheme from dual-citizenship to virtually a “residency permit” scheme. The ministry’s statements in circulars and courts declaring that OCIs are not Indian citizens and that they would not enjoy any fundamental rights under the Indian Constitution have been particularly disheartening.

Today, there is considerable legal confusion about the status of OCIs. Can they practice certain professions like journalism without prior government permission? Do contributions by OCIs residing in India to charities/schools violate the country’s laws? During the pandemic, resident OCIs had to ensure their donations went only to NGOs that had FCRA clearance. As a result, many local level initiatives could not be supported with their monetary contributions.

Very often OCIs have been confronted with remarks, including at courts, that we are foreigners in India. Unlike several other countries, the Indian Constitution does not have exhaustive provisions on citizenship. It leaves it to Parliament to regulate the right of citizenship by law. The Citizenship Act, 1955 was enacted to fulfil this mandate. It is this law that was amended in 2003 to create a new category of citizens called OCIs.

Given the Parliament’s conscious decision to place the OCI scheme in the Citizenship Act, it is unfortunate the government is now claiming that OCIs are not even citizens.

It is true that Section 9 of the Citizenship Act, 1955 states that Indians will lose their citizenship on taking up foreign citizenship. But how are we to make sense of the Citizenship (Amendment) Act, 2003 which created OCIs as a new category of citizens via the very same law despite such people holding foreign citizenship? The only logical and legal way to now understand Section 9 is to accept that the amendments of 2003 effectively create an exception for OCIs from certain countries. There is no other way to reconcile and uphold the bold vision of the Citizenship (Amendment) Act, 2003. Otherwise, we open the door to a scenario where the Citizenship Act can be amended to recognise classes of persons who will merely enjoy residency rights without any fundamental or political rights. Such an interpretation could have catastrophic consequences for an expansive idea of Indian citizenship.

Recently, the Government of India announced that India’s Presidency of G20 will be grounded in the principles of “Vasudaiva kutumbakam” wherein the entire world is considered as one family. Hopefully such political homilies are reflected in the way the government thinks about the idea of citizenship in relation to the increasingly mobile Indian diaspora. Clearly, an elemental question is whether it is proper to cancel the citizenship of people born in the country, and who have continued engagement with it, merely because they have acquired foreign citizenship. No other progressive democracy does that today, even though most countries had similar laws when India enacted the Citizenship Act, 1955.

India jurisprudence itself has evolved since then, a progress exemplified by the Kesavananda Bharati case, which clarified the fundamental features of the Constitution. It is perhaps time for India to relook at citizenship laws to enable its people in this globalised environment.

In a recent address, Prime Minister Narendra Modi advised Chief Secretaries of states and Union Territories to focus on quality of service over outdated laws and rules, to achieve the goal of making India a developed country by 2047. Realising the essence of the Citizenship (Amendment) Act 2003 is in the spirit of the PM’s directive.

The Overseas Citizens of India are incredibly proud of their home country and have been at the forefront of supporting it. On the day when pravasi Indians from across the globe are being felicitated for bringing glory — be it by way of personal achievements or helping the country in immeasurable ways — recognising OCIs as citizens of India both in spirit and legally will be a true way to honour the diaspora’s contributions.

The writer is a lawyer and Overseas Citizen of India

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