For just over a month, India has been fixated on the Citizenship Amendment Act 2019 and the protests it has triggered. The debate has largely centred around the provisions of the law that draw a distinction between Muslim illegal immigrants and non-Muslim illegal immigrants from three countries in India’s vicinity. Amidst the discussions, two changes in the amendment concerning Overseas Indian Citizens have largely escaped attention.
Firstly, a new provision has been added to allow an individual’s Overseas Citizen of India status to be cancelled. Under Section 7D of the Citizenship Act 1955, an individual could lose her OCI if she violates any of the provisions of Citizenship Act 1955 or the provisions of any other law as specified by the Central government. Secondly, a proviso has been added that mandates that an individual’s OCI status should not be cancelled without the person being given a reasonable opportunity of being heard.
The major constitutional concern with this new clause is the absence of legislative guidelines on the laws that the government may select to be applicable to OCI card holders. The legislature has not articulated any criteria or policy objectives that could operate as a guiding principle for the government to identify the laws for the violation of which OCI status may be cancelled. In the past, excessive delegation of legislative functions without adequate guidelines has been the reason for the courts to strike down statutory enactments that have hurt the rights of people.
The Overseas Citizens of India concept was introduced in 2005 in response to demands by members of the diaspora for dual citizenship. Since Indian citizenship law categorically rules out the possibility of dual citizenship, the OCI notion was designed as a compromise. Under this scheme, OCI card holders are granted certain limited rights that the central government notifies from time to time. For example, OCI cardholders can pursue the following professions in India: advocacy, architecture, chartered accountancy, medicine, dentistry, nursing and pharmacy. They get a lifelong multiple entry visa to India and are treated at par with Non-Resident Indians in accessing economic and educational opportunities in India. .
However, OCI card holders are not entitled to political rights in India. They cannot register as voters nor are they eligible for membership in state legislatures and Parliament. They cannot assume the offices of President, Vice-President or become judges of the High Courts or Supreme Court. They are also not eligible to claim equality of opportunity for public employment under Article 16.
Grounds for OCI status to be cancelled already existed in Section 7D of the Citizenship Act.
The first ground is self-explanatory and obvious, allowing for cancellation if OCI status had been acquired by fraud, misrepresentation of concealment of material fact. The second ground could be seen as an effort to uphold the dignity of the OCI status, permitting it to be revoked if the individual is sentenced to imprisonment for not less than two years within five years of being registered as an OCI.
The last three grounds are India-specific grounds and require the OCI card holders to keep India’s interests in how they conducted themselves. These provisos penalise people who show disaffection towards Constitution of India, trade with the enemy “during any war in which India may be engaged” and also allow the authorities to cancel the status “when it is necessary to do so 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”.
These conditions are generic in nature they do not connect OCI card holders to specific legal obligations that an Indian citizen is under.
The new clause would make it possible for the government to specify legal obligations in force in India that OCI card holders would be required to abide by. Thus, even if the OCI card holders may not be subject to the jurisdiction of Indian courts for the majority of their activities, they might be subject to obligations under Indian law to maintain their OCI status.
The significance of this amendment will depend entirely on the specific laws that the government selects and it may pose peculiar problems for OCI card holders. There is no clarity on whether the government will select criminal laws or civil laws. Thus, an American citizen may lose his OCI status for an act that might not be criminal in the US but is considered criminal in India. This may also have particular implications in relation to free speech issues for OCI card holders from western countries that offer greater constitutional and statutory protection for free speech.
It is interesting that the amendment has been incorporated so soon after the controversy regarding the cancellation of British writer Aatish Taseer’s OCI status. Taseer’s OCI status was cancelled on the grounds that he had concealed a material fact while applying for an OCI card (his father was of Pakistani origin and the rules prohibit persons having Pakistani or Bangladeshi lineage from acquiring OCI status). Taseer contended that he was being targetted because he has written an article that criticised Prime Minister Narendra Modi. During this controversy, the issue of having a reasonable opportunity to respond to the notice of cancellation was also raised: Taseer contended that he had been given very little time to make his defence.
During its tenure, the Modi government has received significant criticism of its policies from the Indian diaspora. It is unlikely that the government drafted this amendment without any specific constraints and restrictions in mind. It is clear that with this amendment, the government is looking to revise the terms of engagement with the diaspora. So far, OCI card holders did not have any substantial obligations in exchange for the benefits which were granted under the OCI scheme. The government has begun the process of putting a price on it.
Rangin Tripathy is a Fulbright Post-Doctoral Research Scholar at the Harvard Law School.