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• The Supreme Court of India has asked the Union Government and Reserve Bank of India (RBI) to respond to whether Overseas Citizens of India (OCI) can be exempted from the Foreign Exchange Management Act’s (FEMA) norms.

Details

• Association of Resident Overseas Citizens of India and Families has filed a petition in the Supreme Court; they are claiming that OCIs should not be subjected to FEMA norms as they are already paying taxes in India on their income generated abroad.
  • According to the petitioners, this is arbitrary and in violation of their right to equality.
• The petitioner asked for an exemption from Regulation 2(d) of the 2018 Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations for resident OCIs, who have a permanent address in India.

Overseas Citizens of India

• In 2000, the Union Ministry of External Affairs under the Chairmanship of L.M. Singhvi set up a High-Level Committee on the Indian Diaspora.
  • The Committee was asked to make a comprehensive study of the global Indian Diaspora and to recommend measures for a constructive relationship with them.
  • The committee recommended the amendment of the Citizenship Act (1955) to provide for the grant of dual citizenship to Persons of Indian Origin (PIOs) belonging to certain specified countries.
• The Citizenship (Amendment) Act 2003, made provision for the acquisition of Overseas Citizenship of India (OCI) by the PIOs of 16 specified countries other than Pakistan and Bangladesh.
• The Citizenship (Amendment) Act 2005 expanded the scope of the grant of OCI for PIOs of all countries except Pakistan and Bangladesh as long as their home countries allow dual citizens under their local laws.
  • The OCI is not dual citizenship as the Indian Constitution under Article 9 forbids dual citizenship or dual nationality.
• The Citizenship (Amendment) Act, 2015, has introduced a new scheme called “Overseas Citizen of India Cardholder” by merging the PIO card scheme and the OCI card scheme.
• Why the OCI and PIO merged?
  • The PIO card scheme was introduced in 2002 and thereafter the OCI card scheme was introduced in 2005. Both the schemes were running in parallel even though the OCI card scheme had become more popular.
  • This was causing unnecessary confusion in the minds of applicants. The government accepted the problems being faced by applicants and to provide enhanced facilities to them, the Indian Government formulated one single scheme after merging the PIO and OCI schemes, containing positive attributes of both.
  • For achieving the above objective, the Citizenship (Amendment) Act, of 2015, was enacted.
• The Citizenship (Amendment) Act, of 2015, replaced the nomenclature of “Overseas Citizen of India” with that of “Overseas Citizen of India Cardholder”.

Registration of Overseas Citizen of India Cardholder

• The Central Government may register as an overseas citizen of India cardholder;
  • Any person of full age and capacity;
    • Who is a citizen of another country but was a citizen of India at the time of or at any time after the commencement of the Constitution; or
    • Who is a citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or
    • Who is a citizen of another country, but belonged to a territory that became part of India after the 15th August 1947; or
    • Who is a child or a grandchild or a great-grandchild of such a citizen; or
  • A person, who is a minor child, and whose both parents are citizens of India or one of the parents is a citizen of India; or
  • 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.
• 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 specify, shall be eligible for registration as an Overseas Citizen of India Cardholder.
• The Union Government may specify the date from which the existing persons of Indian origin cardholders shall be deemed to be overseas citizens of India cardholders.
• The Union Government may if it is satisfied that special circumstances exist, after recording the circumstances in writing, register a person as an Overseas Citizen of India Cardholder.

Rights of Overseas Citizens of India Cardholder

• An overseas citizen of India cardholder shall be entitled to such rights, as the Central Government may specify.
• An overseas citizen of India cardholder shall not be entitled to the following rights (which are conferred on a citizen of India);
  • He shall not be entitled to the right to equality of opportunity in matters of public employment.
  • He shall not be eligible for election as President.
  • He shall not be eligible for election as Vice-President.
  • He shall not be eligible for appointment as a Judge of the Supreme Court.
  • He shall not be eligible for appointment as a Judge of the High Court.
  • He shall not be entitled to register as a voter.
  • He shall not be eligible for being a member of the House of the People or the Council of States.
  • He shall not be eligible for being a member of the State Legislative Assembly or the State Legislative Council.
• He shall not be eligible 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 specify.

Renunciation of Overseas Citizen of India Card

• If any overseas citizen of India cardholder makes a declaration renouncing the Card registering him as an overseas citizen of India cardholder, the declaration shall be registered by the Central Government, and upon such registration, that person shall cease to be an overseas citizen of India cardholder.
• Where a person ceases to be an overseas citizen of India cardholder, the spouse of foreign origin of that person, who has obtained an overseas citizen of India card and every minor child of that person registered as an overseas citizen of India cardholder shall subsequently cease to be an overseas citizen of India cardholder.

Cancellation of Registration as an Overseas Citizen of India Cardholder

• The Union Government may cancel the registration of a person as an overseas citizen of India cardholder if it is satisfied that;
  • The registration as an overseas citizen of India cardholder was obtained through fraud, false representation or the concealment of any material fact; or
  • The overseas citizen of India cardholder has shown disaffection towards the Constitution of India; or
  • The overseas citizen of India cardholder has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy; or
  • The overseas citizen of India cardholder has, within five years after registration, been sentenced to imprisonment for a term of not less than two years; or
  • It is necessary so to do in the interests 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.

Indian Citizenship

• Citizenship status in India allows citizens of the Indian State to enjoy all civil and political rights.
• The Constitution of India allows for only single citizenship, that is, Indian citizenship. There is no provision for separate state citizenship.
  • The other federal states like USA and Switzerland adopted the system of double citizenship.
  • In the USA, each person is not only a citizen of the USA but also of the particular state to which he belongs.
• The system of single citizenship provided uniform rights (except in a few cases) for the people of India to promote the feeling of fraternity and unity among them and to build an integrated Indian nation.

Indian Constitution deals with citizenship from Articles 5 to 11 under Part II

• The original constitution only identifies the persons who became citizens of India at its commencement (i.e., on January 26, 1950).
  • It does not deal with the problem of acquisition or loss of citizenship after its commencement.
  • It empowers the Parliament to enact a law to provide for such matters and any other matter relating to citizenship.
  • Parliament has enacted the Citizenship Act (1955), which has been amended from time to time.
• According to the Constitution, the following four categories of persons became the citizens of India at its commencement i.e., on January 26, 1950.
  • Persons domiciled in India.
  • Persons migrated from Pakistan.
  • Persons migrated to Pakistan but later returned.
  • Persons of Indian origin residing outside India.
• The Citizenship Act (1955) provides for the acquisition and loss of citizenship after the commencement of the Constitution.

 Acquisition of Citizenship

• The Citizenship Act of 1955 prescribes five ways of acquiring citizenship, via, birth, descent, registration, naturalization and incorporation of territory.
• By Birth - A person born in India on or after January 26, 1950, but before July 1, 1987, is a citizen of India by birth irrespective of the nationality of his parents.
  • A person born in India on or after July 1, 1987, is considered a citizen of India only if either of his parents is a citizen of India at the time of his birth.
  • Further, those born in India on or after December 3, 2004, are considered citizens of India only if both of their parents are citizens of India.
  • The children of foreign diplomats posted in India and enemy aliens cannot acquire Indian citizenship by birth.
• By Descent - A person born outside India on or after January 26, 1950, but before December 10, 1992, is a citizen of India by descent, if his father was a citizen of India at the time of his birth.
  • A person born outside India on or after December 10, 1992, is considered a citizen of India if either of his parents is a citizen of India at the time of his birth.
  • December 3, 2004, onwards, a person born outside India shall not be a citizen of India by descent, unless his birth is registered at an Indian consulate within one year of the date of birth.
• By Registration - Central Government may, on an application, register as a citizen of India any person if he belongs to any of the following categories, namely:-
  • A person of Indian origin who is ordinarily resident in India for seven years before making an application for registration.
  • A person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration.
  • Minor children of persons who are citizens of India.
• By Naturalization - Central Government may, on an application, grant a certificate of naturalization to any person if he possesses the required qualifications, including adequate knowledge of a language specified in the Eighth Schedule to the Constitution.
  • The government of India may waive all or any of the above conditions for naturalization in the case of a person who has rendered distinguished service to science, philosophy, art, literature, world peace or human progress.
• By Incorporation of Territory - If any foreign territory becomes a part of India, the Government of India specifies the persons who among the people of the territory shall be the citizens of India.
  • Such persons become citizens of India from the notified date.
  • For example, when Pondicherry became a part of India, the Government of India issued the Citizenship (Pondicherry) Order (1962), under the Citizenship Act (1955).
• Every Registered and naturalized citizen must take an oath of loyalty to the Constitution of India.

Loss of Citizenship

• The Citizenship Act (1955) prescribes three ways of losing citizenship whether acquired under the Act or before it under the Constitution, via, renunciation, termination and deprivation:
• By Renunciation - Any citizen of India of full age and capacity can make a declaration renouncing his Indian citizenship.
  • When a person renounces his Indian citizenship, every minor child of that person also loses Indian citizenship.
  • However, when such a child attains the age of eighteen, he may resume Indian citizenship.
• By Termination - When an Indian citizen voluntarily acquires citizenship of another country, his Indian citizenship automatically terminates.
  • This provision, however, does not apply during a war in which India is engaged.
• By Deprivation - It is a compulsory termination of Indian citizenship by the Central Government:
  • If the citizen has obtained citizenship by fraud.
  • The citizen has shown disloyalty to the Constitution of India.
  • The citizen has unlawfully traded or communicated with the enemy during a war.
  • The citizen has, within five years after registration or naturalization, been imprisoned in any country for two years.
  • The citizen has been ordinarily resident out of India for seven years continuously.

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