India: Amendments To The Citizenship Act, 1955 And The Concept Of The Overseas Citizens Of India Cardholder

Last Updated: 20 January 2016
Article by Ran Chakrabarti and Sonu Varghese

1. Introduction

In response to growing demands to introduce dual citizenship from its overseas diaspora, India introduced the concept of the person of Indian origin (a "PIO") in 2002 and an overseas citizen of India (an "OCI") in 2006 as categories of persons who enjoy certain legal rights in India. This article summarises the rights that PIOs and OCIs have in India and examines the impact of the recently introduced Citizenship (Amendment) Act, 2015 (the "Amendment Act").

Currently, the Constitution of India does not allow dual citizenship and PIOs and OCIs are often mistaken as dual citizens or dual nationals. A PIO is simply defined to be a person registered as a PIO cardholder under the Ministry of Home Affairs scheme.1 An OCI is a person registered as an overseas citizen of India under section 7A of the Citizenship Act, 1955 (the "Act"). PIOs and OCIs essentially enjoy certain rights in India, on par with Indian nationals.

2. Amendments under the Citizenship (Amendment) Act, 2015

The Amendment Act (which amended the Act) was introduced in the Lok Sabha on 27 February 2015 and passed by the Lok Sabha on 2 March 2015. The bill was subsequently introduced in the Rajya Sabha and was cleared on 4 March 2015. The bill received the assent of the President of India on 10 March 2015 and is deemed to have come into force on 6 January 2015. The Amendment Act introduces the concept of an 'Overseas Citizen of India Cardholder' (an "OCC") that essentially replaces and merges together OCIs and PIOs.

3. Transitional measures for current PIO Cardholders

In light of the merger of the PIO and OCI status under the Amendment Act, the following transitional measures have been put in place:2

  1. Current PIO cardholders are automatically considered OCI cardholders and are not required to obtain an OCI card unless they choose to do so;
  1. Applicants with approved PIO card applications, but whose cards have not yet been issued shall be issued with a PIO card and shall automatically be considered to have OCI status;
  1. Applicants with pending but not approved PIO card applications will likely have their applications returned by the Indian authorities with the request to reapply through the OCI scheme.

4. OCC Cardholder – Eligibility criteria

Pursuant to section 7A of the Amendment Act, a person shall be eligible to register as an OCC if any of the following conditions are satisfied:

(i) they are citizens of another country;

A person of full age and capacity and who is a citizen of another country, but:

  1. was a citizen of India at the time of or any time after the commencement of the Constitution;
  2. was eligible to become a citizen of India at the time of commencement of the Constitution;
  3. belonged to a territory that became part of India after the 15th day of August, 1947.

(ii) Children

  1. A child or a grand-child or a great grand-child of a citizen of another country, as mentioned in point (i) above or a minor child of such citizen;
  1. A minor child whose both parents or one of the parents is a citizen of India.

(iii) Spouses

  1. Spouse of a citizen of India or an OCC, the spouse being of foreign origin. To be eligible for registration, the marriage should have been registered and subsisted for a continuous period of not less than 2 (two) years immediately preceding the presentation of the application. Such spouse shall also be subjected to prior security clearance from a competent authority in India.

Citizens of Pakistan or Bangladesh (and other countries that may be notified by the Central Government) are not permitted to register as OCCs and the restrictions applying to those nationals have been extended to cover such person's parents, grandparents or great grandparents under the Amendment Act.

5. Citizenship by registration

Under the Act, any person who is not an illegal migrant and any person who is not already a citizen of India can make an application to the Central Government to register as a citizen of India, if the applicant fulfils certain criteria.3

Those criteria include:

  1. being a person of Indian origin and ordinarily resident in India for 7 (seven) years;
  1. being a person of Indian origin resident elsewhere;
  1. being a person married to an Indian citizen and ordinarily resident in India for period of 7 (seven) years;
  1. being a minor child of persons who are Indian citizens;
  1. a person of full age and capacity whose parents are registered as citizens of India (as a PIO) or by way of naturalisation (as specified in section 6 (1) of the Act); or
  1. being a person who is of full age and capacity who, or either of his parents were earlier citizens of independent India.

The Amendment Act has modified the Act and now provides that:

  1. (in relation to paragraph (vi) above) such person needs to be ordinarily residing in India for twelve months before making the application to apply for citizenship of India; and
  1. any person of full age who has been registered as an OCI for 5 (five) years and has been ordinarily residing in India for twelve months before making the application can also apply for registration for Indian citizenship.

However, it should be noted such persons will have to renounce their foreign citizenship and dual nationality is still not recognized.

Under the Amendment Act, the condition of a continuous stay in India for twelve months for eligibility towards Indian citizenship has also been relaxed to permit foreign travel for up to 30 (thirty) days in aggregate. This relaxation is available only when the Central Government is satisfied that special circumstances exist and such circumstances shall be recorded in writing.

This essentially means that if a person has been residing in India but has travelled abroad intermittently, provided that the total number of days that person has stayed away from India does not exceed 30 (thirty) days, then that person shall be eligible to apply for Indian citizenship.

The Home Ministry has justified the period up to 30 (thirty) days in the twelve months period of stay in India on the ground that due to increased globalisation, there is often an imperative need for people to travel abroad due to economic, social and medical needs.4

The Amendment Act has also introduced a new provision which allows the Central Government to register a person as an OCC even if that person does not satisfy any of the listed qualifications, if special circumstances exist and such circumstances have been recorded in writing.5

6. OCC rights and parity with NRIs

An OCC continues to be entitled to the rights that were available to an OCI and a PIO. An OCC is entitled to a multiple entry multi-purpose lifelong visa to visit India and has no requirement to register with the authorities for the duration of stay, irrespective of how long it is. An OCC will not require a separate visa to visit India.

An OCC is treated on par with non-resident Indians ("NRIs") in respect of economic, financial and educational rights. An OCC is further entitled to be treated on par with NRIs in matters of international adoption of Indian children and pursue the professions of doctors, dentists, advocates, architects and chartered accountants in India, pursuant to the provisions contained in the relevant acts governing those professions.

In the context of the introduction of the concept of an OCC, the Department of Industrial Policy and Promotion recently amended the consolidated foreign direct investment policy circular of 20156 (the "FDI Policy") in relation to NRIs, PIOs and OCIs.7 Pursuant to the amendment, for the purposes of the FDI Policy, 'NRI' shall also include an OCC.

Further, investments made by NRIs (which by definition now includes OCCs) under Schedule 4 of the FEMA (Transfer or Issue of Security by Persons Resident Outside India) Regulations, 2000 shall be deemed to be domestic investments on par with investments made by residents.

However, the recent master circular on acquisition and transfer of immovable property in India by NRIs, PIOs, foreign nationals of non–Indian origin8 has failed to incorporate the concept of OCCs. The circular provides separate rights that are available to NRIs and PIOs with respect to purchase of immovable property. The same position is reflected in the recently issued master circular on remittance facilities for NRIs, PIOs, and foreign nationals.9 This circular treats NRIs and PIOs separately and does not consider OCC within its scope. It remains to be seen if the Reserve Bank of India shall provide a similar clarification as with the case of the FDI Policy, wherein NRIs are deemed to include OCCs as well. In our view, it logically should include them.

Finally, it is worthwhile considering whether becoming an OCC has implications in relation to the rights and protections enjoyed by that person from his or her state of nationality. In this context it should be noted that in relation to OCIs holding British passports, the UK Border Agency had taken the view that overseas citizenship of India is regarded by the British Government as granting citizenship or nationality for the purpose of making an application to register as a British citizen. 10

The implication here is that OCC's holding British passports may not be granted consular protection in India and hence, an OCC holding a British passport may not be entitled to protection as a foreign national.

However, the UK Foreign Office has stated that where OCI holders are in India, they will continue to be treated as British citizens and will be entitled to consular assistance.11 The confirmation is based upon the view that the Indian authorities do not consider a British citizen holding OCI (or OCC) status to be a dual national.

7. Rights unavailable to OCCs

Citizenship is the highest political status an individual enjoys in a state, though fundamental rights are generally available to all persons. However, in India, certain rights have been reserved exclusively for citizens. The reasoning behind this is that citizens are entitled to enjoy and exercise rights that are guaranteed by the Constitution compared to persons who are not the citizens of a country.12

Section 7B (2) of the Amendment Act lays down several rights, conferred on a citizen of India, which are not available to an OCC. Such rights include:

  1. the right to equality of opportunity in matters of public employment (based on Article 16 of the Constitution);
  1. the election as President or Vice President (under Article 58 and Article 66 of the Constitution);
  1. the appointment as a judge of the Supreme Court or the High Court (under Article 124 and 217 of the Constitution);
  1. the right to registration as a voter (under section 16 of the Representation of the People Act, 1950);
  1. eligibility for being a member of the House of People or of the Council of States (under sections 3 and 4 of the Representation of the People Act, 1950);
  1. eligibility for being a member of the Legislative Assembly or the Legislative Council of a State (under section 5, 5A and 6 of the Representation of the People Act, 1950); and
  1. appointment to public services and posts in connection with affairs of the Union or of any State for appointment in such services and posts as the Central Government may specify.

In this context, it is interesting to note that the Supreme Court bench comprising of Chief Justice H. L. Dattu and Justice Arun Kumar Mishra dismissed a public interest litigation (a "PIL") recently filed by senior journalist S. Venkat Narayan on 20 April 2015.13

Under the Amendment Act, OCIs have been denied voting rights. The PIL essentially prayed for quashing the amendments made in the Act in relation to voting rights. The Court questioned the petitioner on the basis of the fact that he himself was not affected by the amendments and those affected had not bothered to approach the Court.

It should be further noted that OCI cardholders who are below the age of 21 years and above the age of 50 years, have to obtain a new OCC with each new passport, which is a cumbersome requirement.

8. Future dual citizenship?

The Amendment Act does not materially expand the rights of OCIs and PIOs and it should be considered whether the whole system should be dispensed with, permitting dual citizenship.

The arguments for granting dual citizenship focus on harnessing the considerable goodwill among the Indian diaspora, facilitating increased investments, trade, tourism, voluntary work and philanthropic contributions to India.14

The High Level Committee on Indian Diaspora in its recent report15 recommended that dual citizenship should be permitted for members of the Indian diaspora who satisfy the conditions and criteria laid down in the legislation to be enacted to amend the relevant sections of the Act.

Holding citizenship of a country avoids the need for specific registration or work permits, entails full protection against expulsion, provides access to public employment and decreases administrative difficulties. The probability of socio economic integration is enhanced.16

However, following a series of terrorist attacks in India, the committee did not recommend an automatic conferment of dual citizenship. The committee was also of the view that electoral rights and the right to contest elections to elective bodies in India, particularly if those rights shall be exercised outside India – need not be extended to those who acquire dual citizenship. The same shall apply with respect to induction into the civil services or the defence or paramilitary forces.

On the question of dual citizenship, others argue that it is a concern whether an individual is capable of fulfilling civic duties in multiple nations or whether they will seek to escape them.17

Obligations to comply with the statutory duties of one country may result in conflict of obligations and consequent renunciation of the citizenship of the other country. For example, in the United States, if a United States citizen serves as an officer in a foreign military service, he may lose his US citizenship.

It has been argued by some that dual citizenship is inconsistent with integration and a certain loyalty towards the state. In addition, problems relating to diplomatic protection and the application of international treaties may arise in cases of dual nationality. Finally, increased acceptance of dual nationality may result in unjustified privileges in comparison to individuals with only one nationality.18 It has been argued and reinstated by the Federal Constitutional Court of Germany that dual nationality may lead to loyalty conflicts and uncertainty concerning diplomatic protection.

Given the volatile nature of the relationship that India shares with Pakistan and Bangladesh and to some extent China, the possibility of creating and maintaining dual citizenship rights with such countries may be highly problematic. However, relationships with countries with which India shares stability with, such as USA, Canada, the United Kingdom and Australia may prove to be mutually beneficial.

Considering the fact that these countries contain a large Indian diaspora and since these countries already recognise dual citizenship with other countries, there are pressing arguments for India to reciprocate. In light of the increasing need of connectivity and mutual exchange, India should consider the benefit of bringing in a system of dual citizenship with certain countries that facilitate co-operation and investment.

9. Conclusions

Hindsight may judge the Amendment Act as missing an opportunity to deepen ties with India's large overseas diaspora. Except for the merger of PIOs and OCIs into a single category and addition of more categories of people who are eligible to be registered as an OCC, the changes brought in by the Amendment Act are not substantial.

The recent merger of PIO and OCI status is a welcome step for PIO cardholders, since it means that PIO cardholders will no longer have to register after a continuous stay of 180 days stay in India and it will give PIOs the same rights as OCIs.

However, the restrictions as set out in section 7B of the Amendment Act relating to political and voting rights mean that OCCs (and therefore existing OCIs and PIOs) still have no such rights.

While the Amendment Act might tinker at the edges of the rights afforded to India's diaspora, ultimately, it is a long way from addressing the questions and issues of dual nationality.

Footnotes

1 Introduced pursuant to a notification dated 19 August 2002 (and subsequently amended on 30 September 2014)

2 https://pro-linkglobal.com/india-merger-of-pio-and-oci-card-schemes-brings-eligibility-changes-and-clarifications

3 Section 5 of the Act

4 http://timesofindia.indiatimes.com/india/Union-home-ministry-proposes-relaxation-in-rule-for-those-seeking-Indian-citizenship/articleshow/44989556.cms, last accessed on 16 November 2015

5 Section 7A (3) of the Act

6 Press Note No. 7 (2015 series) dated 3 June 2015

7 This shall be in effect from 18 June 2015

8 Master Circular No. 4/2015 – 16 dated 1 July 2015 issued by the Reserve Bank of India

9 Master Circular No. 8/2015 – 16 dated 1 July 2015 issued by the Reserve Bank of India

10 https://www.whatdotheyknow.com/request/overseas_citizenship_of_india_an, last accessed on 16 November 2015

11 http://www.ibnlive.com/news/india/uk-clarifies-overseas-citizen-of-india-status-455981.html, last accessed on 16 November 2015

12 Ko Swan Sik & T.M.C. Asser Instituut (1990), Nationality and International Law in Asian Perspective, https://books.google.co.in/books?isbn=079230876X (accessed on 16 November 2015)

13 http://articles.economictimes.indiatimes.com/2015-04-20/news/61339673_1_present-pil-the-pil-oci last accessed on 16 November 2015

14 Report of the High Level Committee on the Indian Diaspora dated 8 January 2002

15 Ibid

16 Thomas Faist, Jurgen Gerdas, "Dual citizenship in an age of mobility", Bielefeld University, 2008, http://www.migrationpolicy.org/research/dual-citizenship-age-mobility, accessed on 16 November 2015

17 Agnese Lace, "Dual citizenship as a tool for diversity management in the era of transnationalism", KOC University, 2015, http://www.integrim.eu/wp-content/uploads/2014/02/LACE-dual-citizenship-as-a-tool.pdf, accessed on 16 November 2015

18 Randall Hansen and Patrick Weil, Dual Nationality, Social Rights and Federal Citizenship in the U.S and Europe, 2002, https://books.google.co.in/books?isbn=1571818057 (accessed on 16 November 2015)

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