Writ Petition SummaryConstitutional Rights of Overseas Citizens of India
Background and Issues
The category of Overseas Citizen of India (OCI) was introduced through the Citizenship Amendment Act, 2003. The petitioner argues that the intention was to allow dual citizenship to persons of Indian origin who were citizens in a select group of foreign countries. This is evidenced by the State of Objectives of the Amendment, and in Sections 7 and 9 of the 2003 Amendment Act. In 2005, a subsequent amendment to the act extended the option of OCI status to eligible citizens of all countries that would offer reciprocated dual citizenship. The petitioners argue that the amendment to Section 7 through the Citizenship Amendment Act, 2015, takes away the option of dual citizenship from these groups of people. The 2015 Amendment changed the term “Overseas citizens of India” to “Overseas Citizens of India Cardholders”. In doing so, the amendment reduced the diluted OCI status to a mere visa category. The petitioners submit that this violated the objective of the Act. Further, the petitioners claim that the most recent Amendment to Section 7 in 2019 further dilutes the rights of OCIs by giving the government unbridled discretion to cancel registration as OCIs for a variety of reasons.
The petition specifies that the Constitution does not bar the grant of dual citizenship in India. While Article 9 specifies that a person will lose Indian citizenship upon voluntarily gaining citizenship of another country, the petitioners point out that Article 11 empowers the Parliament to make any provisions to alter or terminate citizenship. The petitioners argue that nothing in the Constitution bars the Parliament from exercising power under Article 11 to grant dual citizenship, as it did through the 2003 Amendment. To make this claim, the petitioners reference the Constitutional Assembly debates. They point out that a Constitutional amendment proposing dual citizenship was made by KT Shah, but was not acted upon at the time of promulgation of the Constitution because the complicated questions of partition were looming large. Accordingly, dual citizenship was left for the Parliament to consider in the future through Article 11.
The petitioners state that while Article 11 allows Parliament discretion in questions of citizenship, it must be understood to contain some implied limitations on the use of such discretion. The petitioners argue that the 2019 Amendment to the Act violates these implied limitations by taking away the fundamental rights of OCIs.
What do the petitioners seek?
The petitioners pray for the Court to declare that Sections 7B(1), 7(D), 8(2) and 9(1) of the Citizenship Act, 1955, are unconstitutional to the extent that they bar dual citizenship in India.
Violation of Objective of the Act
The petitioners argue that the 2003 Act conferred OCI status in keeping with the recommendations of the High – Level Parliamentary Committee of Indian diaspora. The Supreme Court, in Kalpana Mehta v. Union of India, has held that parliamentary committee reports are essential to consider in lawmaking. The 2015 Amendment Act violates the objective of the 2003 Act to grant dual citizenship. Hence, it must be read down for being in contravention of the intended purpose of the original legislation.
Violation of Fundamental Rights
The petitioners claim that the unbridled power given to the Government under Article 7B (1) to decide which fundamental rights are available to OCIs violates their right to life. The loss of dual citizenship also impedes on their freedom to enjoy cultural and political involvement, hence encroaching on their right to life and liberty. The fear of loss of OCI status upon expressing peaceful political dissent leads to uncertainty, which curtails their right to dignity under Article 21. Despite being involved in the social and political life of India, those OCIs that live, work and pay taxes in the country are barred from voting or seeking information from the government through RTIs. This has also been argued to violate their Article 21 rights.
The powers of the government under Sections 7(B) and 7(D) to impose restrictions on the fundamental rights of OCIs are “manifestly arbitrary”. The application of the rule of law requires that an OCI should know their position in relation to citizenship in India without fear or uncertainty. The 2015 Amendment ignores rule of law, and hence, is manifestly arbitrary, violating Article 14 and 19. Further, the restrictions that can be imposed on OCIs by use of Sections 7(B) and 7(D) cannot be imposed on any other group of citizens of India. As such, these sections create two groups of citizens, while the Constitution only envisions one uniform group. Since there is no intelligible reason to create these two categories, the Sections violate Article 14.
Section 7(B) 1 disallows OCIs to make donations to any religious institution that is not registered under the Foreign Contributions Regulation Act, 2010. Further, Section 7(B) also requires OCIs to gain government permission to enter the country for the purposes of some religious pilgrimage. Hence, the petitioners argue that it violates their right to religious freedoms under Article 25.
Principle of Non-Retrogression
The principle of non-retrogression states that once a right has been granted, it cannot be taken away. This principle has been upheld by the Supreme Court in past cases. The petitioners claim that the 2015 Amendment takes away the right to dual citizenship that was previously granted under the 2003 Amendment act. Hence, it violates the principle of non-retrogression.