header
Rights

The Real Intent Behind the New OCI Rules Is to Stifle Dissent

A March 2021 notification by the MHA brings in a number of restrictions against Overseas Citizens of India cardholders, even allowing the government to cancel an OCI card without any scope for remedy.

Dark clouds are increasingly hovering over the Overseas Citizen of India Cardholders (OCIs) horizon with a March 2021 notification by the Ministry of Home Sffairs (MHA), which has been issued in the garb of making a consolidated list of the rights of the Overseas Citizen of India Cardholders, as set out in its notifications issued in 2005, 2007 and 2009, with more clarifications.

This notification, now under challenge in a recent petition filed by 80 OCIs before the Supreme Court of India, comes in the wake of successful contestations in courts by OCIs of moves to cancel the registration of their OCI cards, or deprive them of their benefits.

It may be recalled that, as far back as 2003, the BJP-led NDA government had itself bestowed Overseas Citizenship of India to Indian nationals who had acquired foreign citizenship, in a bid to attract investments from well-heeled OCIs, while at the same time establishing its imprint of discrimination against a minority, in the manner in which this OCI citizenship was circumscribed. The discrimination was reinforced by the Citizenship Amendment Act and the MHA guidelines of  2019.

Also read: Overseas Citizens of India Move SC Over Centre’s Rules Targeting Profession, Speech

The BJP has had a cozy equation with certain sections of the Indian diaspora. Last year, an outfit that styles itself as the Overseas Friends of the BJP had even gone as far as registering itself as the official representative of India’s ruling party in the United States. But something clearly had to be done to teach a lesson to non-obliging OCIs, while yet continuing the lifetime entry visa for the supportive OCIs who filled their coffers and were their source of support. The March 2021 notification appears to have achieved just that.

While it maintains the grant of lifelong visa for visiting India for any purpose, it adds provisos such as special permissions or a special permit required by OCI cardholders from the competent authority, or the Foreigners Regional Registration Officer, or the Indian mission concerned, to undertake any missionary or Tabligh or mountaineering or journalistic activities. One does not have to traverse great lengths to see the intent of the government.

Prime Minister Narendra Modi addresses a mega ‘Howdy, Modi’ gala event at Houston in the United States, Sunday, September 22, 2019. Photo: PTI

Some months ago, the Tablighi Jamaat was pilloried as being the super-spreader of COVID 19 in India. There were OCIs among those who had visited the Markaz (centre) at Delhi where the Jamaat’s annual member consultation was held, prior to the lockdown period, who were charged with non-compliance of lockdown orders and violations of visa conditions.

Irfan Khan was one such OCI Card Holder from Brisbane, Australia, who was a member of the Jamaat who had contested the charges, unlike several other accused who plea-bargained as a short cut. Khan was acquitted after a mind-boggling legal battle, plus a trial by news media and Modi supporters, that fed into an epidemic of Islamophobic fake news and hate speech. So, it took the courts in India to clarify the matter, at least formally and legally, if not politically. But Irfan Khan’s acquittal obviously did not go unnoticed by the state.

Curtailment

So also, the earlier Government of India notification of 2005, under Article 7B of the Citizenship Act, provided for parity with non-resident Indians (NRIs) in respect of all facilities available to them in economic, financial, and educational fields except in matters relating to the acquisition of agricultural and plantation properties. The March 2021 notification however reverses this almost in stating that the OCI Cardholder shall have the same rights and privileges as a ‘foreigner’ (note foreigner and not NRI), in economic, financial and educational fields.

The only marked exception it carves out (or rather retains) is by way of allowing OCIs to purchase and sell immoveable properties other than agricultural land or farm house or plantation properties, on par with non-resident Indians. But there again, farmhouse properties have been additionally carved out in the exceptions to immoveable properties that can be purchased or sold.

Further, as the Goa experience shows, even this provision can provide limited solace to the OCIs. As ecologically destructive policies are being foisted on Goa, which have serious implications for the coastal communities, and even as its Coastal Zone Mapping Plan is under discussion, many young members of its fishing community have no say on what can be done with these properties that they purchase, or can and have inherited.

Some of the younger members of the fishing communities have turned into OCIs after affirming the Portuguese citizenship afforded to Goa’s people as it could potentially offer them a passport to a job in the European Union, though even those who do migrate from these communities by and large return to Goa upon retirement.

Protestors gather at the venue for the ‘Howdy, Modi’ event in Houston, Texas on September 22. Photo: Alliance for Justice and Accountability.

As a matter of fact, three months ago, the Karnataka high court recognised, when holding that OCI Cardholders have to be treated as Indian Citizens for the purpose of admission to professional educational institutions, that “the Citizenship Act is the umbilical cord through which the Indian diaspora the world over have a connection with India – their country of origin”.

The court noted that “with the implementation of economic reforms since the year 1991 in India, Indian economy has embraced liberalisation and privatisation and the same has resulted in globalisation. As a result, many Indian citizens have gone overseas not only for study and research, but also for employment, trade and commerce and business.

Also read: Modi Govt Revokes Aatish Taseer’s OCI Card For ‘Concealing His Father Was Pakistani’

Also, over the decades after India became an independent nation, there have been thousands of Indian citizens who have gone abroad for various purposes and have become foreign citizens and have given up Indian citizenship, yet over the years, there is a yearning amongst the Indian Diaspora globally to maintain a connection with their country of origin”.

This reasoning does not appear to have gone down well with the Government of India. Already in the year following its return to power, in 2015, the NDA government had consolidated its plan to clamp down on dissenting Indian citizens based in India through the harnessing of sedition, security, and hate speech laws.

As this could not work for those in the Indian diaspora who had begun voicing dissent, it needed to work out another stratagem for this section. The nomenclature was changed from OCI to OCI Card Holder through an amendment in 2015, thus first introducing the seeds of treating the OCI as just a cardholder, as distinguished from a quasi-citizen that she was.

The CAA 2019 introduced a more subtle provision for cancellation of OCI Card, again in the guise of providing for a hearing before cancellation of the card, besides specifically excluding possibilities of acquiring citizenship on the basis of religion.

The cancellation of OCI cards has also been the subject of litigation in courts. It is apparent that the principle of audi alteram partem, that is, a fair hearing, has been compromised by the government in cancellation of OCIs’ registration.

Asif Hakim Adil, for instance, has learnt after approaching the court that the basis for cancellation of his OCI Card was a secret special investigation team (SIT) Mumbai report revealing certain “alleged facts”, even as the government did not yet provide a clue as to whether any investigation was conducted on the said information.

Faranak Jalalvandi’s application for grant of OCI card was rejected by the authorities without assigning any reasons for denial of the OCI application. It is only when he approached the Delhi high court that the counsel for the authorities submitted that they would reconsider the matter and the authorities were given an opportunity vide their order dated January 18, 2021, to pass an order on Jalalvandi’s application, within a month and inform the court accordingly, so that the court could review it.

Earlier Dr. Christo Thomas Philip, an OCI medical doctor, had successfully challenged the cancellation of his OCI card registration by the Consulate General of India (CGI), Houston, on the ground that it is necessary to do so in the interest of sovereignty and integrity of India and in the interest of the general public.

Dr. Philip had also challenged the upholding of the order of the CGI on a further ground that he had been involved in missionary activities in India. The Delhi high court noted that the authorities had produced no law that proscribes missionary activities. The court had gone further directing the authorities concerned  to ensure that there is no impediment in the petitioner entering this country.

Clearly, all these judgements were hindrances to the government in its designs to suppress religious freedom and the freedom of speech and expression. The March 2021 notification, if anything, is a brazen attempt to give the government a legal handle to quash any further challenges to the selective cancellation of registration of OCI cardholders.

Albertina Almeida is a Goa-based lawyer and human rights activist.