OCI – No Dual Citizenship

This Article is authored by Advocate Anil Malhotra.

The Constitution of India does not allow holding Indian Citizenship and Citizenship of a foreign country simultaneously. Upon voluntary acquisition of the citizenship of another country, a person ceases to be an Indian citizen. A child born to foreign citizens of Indian origin cannot be a citizen of India, as neither of his parents are Indian nationals. Therefore, by amending the Constitution, a new category of citizenship i.e. Overseas Citizen of India (OCI) was created in 2005, as a compromise to dual citizenship with limited privileges and no rights of Indian citizens. Both the Constitution of India and Citizenship Act (CA), categorically prohibit dual citizenship and holding of two nationalities simultaneously of two different countries. CA specifically prohibits political and other rights to OCIs, who have only multiple entry life-long visa facility for visiting India for any purpose any time. In the face of such a situation, conferring of political rights under the present system to OCIs may yet be a distant dream.

Registration of Person of Indian Origin (PIO) Card holders started under the Ministry of Home Affairs Scheme, 2002, whereas the OCI Scheme became operational from 2005. Now, both the schemes have been merged and only OCI scheme remains in force. What is then the difference between NRI and OCI. Terminologies answering frequently arising questions in these array of nomenclatures need answers.

Foreign Exchange Management Act (FEMA), defines Non-Resident Indian (NRI) as a person resident outside India, who is a citizen of India. Person of Indian Origin (PIO) means a citizen of any country, other than Bangladesh or Pakistan who had, at any time held an Indian passport or he or either of his parents or any of his grandparents was a citizen of India, by virtue of the Constitution of India or CA or the person is a spouse of an Indian citizen. Under FEMA, a person “resident” in India is one who resides in India for more than 182 days in the preceding financial year and who comes or stays in India for any purpose, and a “non-resident” is merely defined as a person who is not a resident in India. The Finance Act, 2020, as of date provides for such an individual to be resident in India in either of the two scenarios i.e. the individual’s stay in India during the financial year is 182 days or more; or the individual’s stay in India is 120 days or more in the current financial year and 365 days or more in the preceding 4 financial years. Therefore, generally an NRI can be summed up as an Indian citizen who is ordinarily residing outside India and holds an Indian passport.

A foreign national who was eligible to become a citizen of India on January 26, 1950, or was a citizen of India on or at any time after the said date or belonged to a territory that became part of India after August 15, 1947 and, his/her children and grandchildren are eligible for registration as OCIs. They enjoy multiple entry multipurpose lifelong visa for visiting India, are exempted from registering with the Foreigners Registration Office or police authorities, for any length of stay in India and are entitled to benefits notified under CA by Central Government from time to time.

Under the CA “illegal migrant” means a foreigner entering India without valid travel documents and can be deported under the Foreigners Act (FA) and the CA. The Citizenship (Amendment) Act, 2019 (CAA) has added to the definition of “illegal migrant” under the CA. Resultantly, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, will not be treated as illegal migrants under the CA. Further the CAA has reduced the number of years of residence in India from eleven years to five years, which is required for citizenship by naturalisation for the above mentioned communities. The CAA now grants Indian citizenship to Hindus, Christians, Sikhs, Buddhist, Jains and Parsis who had come to India from Afghanistan, Pakistan and Bangladesh before December, 31 2014. Persons of these religions, who have migrated from these three countries, will have an opportunity to get Indian citizenship, even if they do not have requisite documentation in support of their claims. Such persons will not be deported for not possessing documents in proof of being Indian citizens, as they will not be treated as illegal migrants. They will be better off than OCIs in terms of Indian citizenship.

Serious introspection is needed on status of OCIs, a misnomer of glorified visa holders. COVID pandemic foreign travel bans has sealed the fate of OCIs stranded in India. Even, travel of OCIs to India is in dire straits. The step motherly treatment needs to go. A genuine dual citizenship is the need of the hour for 34 lac OCIs. The sagging economy needs foreign direct investment of OCIs who need commercial and financial freedoms to invest in their homeland. US and Europe seek to rely on indigenous population. Hence, relocation of OCIs economic, technological and fiscal contributions in India ought to be welcomed in exchange for real dual citizenship. Self reliance with OCI support can be a reality. Indian policies on OCIs needs changes. A liberal regime is needed. If illegal migrants can be Indian citizens, why not OCIs. Discrimination must go. Economic progression is possible if the living OCI is clothed with the Indian flag. This can reverse the brain drain. A 30 million Indian Diaspora can be given the call to return to their roots, if real dual nationality is on the platter. Only if, equal rights are given to OCIs at par with Indian citizens, economic growth, intellectual property contributions to the homeland and fiscal investments will be made. A self dependent hub culture can be developed with ethnic nationalism. OCI Indians are Indians at heart. Their foreign passport makes no difference. Why differentiate and create second class OCIs in the world. The disparity must go.