By TK Raja Lakshmi

On March 4, the Home Ministry issued a notification under Section 7B of the Citizenship Act 1955 pertaining to the rights of Overseas Citizens of India (OCI) cardholders, which superseded previously issued notifications in April 2005, January 2007 and January 2009. These new rules, made possible through an executive order, grant lifelong multiple entry visas but come with a baggage of conditions, some of which are directed towards certain communities and certain categories of employment, and appear motivated.

OCIs are persons who hold a passport of a foreign country but have some connection with India by virtue of birth or parentage. They do not have Indian citizenship or Indian passports. Broadly speaking, barring persons from Pakistan and Bangladesh, all persons who are citizens of other countries but who were citizens of India at the time of and after the commencement of the Constitution, or who were part of territories that became part of India in August 1947, or who were eligible to become citizens at the time of the Constitution, or who are children, grandchildren or great-grandchildren of a citizen, are considered eligible to apply under the OCI scheme.

Similarly, a minor child born of parents who were citizens of India or one parent who was an Indian citizen will be eligible for registration as an OCI cardholder. For all practical purposes, OCIs enjoyed similar rights as Non-Resident Indians (NRIs) and they were even considered for dual citizenship in 2003 during the first tenure of the National Democratic Alliance (NDA) government.

The new rules, however, make a distinction between an OCI and an NRI. An OCI will have the same rights as that of a foreigner under the Foreign Exchange Management Rules 2018 of the Reserve Bank of India, but barring some occupations listed in the notification, will not be permitted to engage in activities in economic, educational and financial fields.

This reverses the position that OCIs had along with NRIs for more than one-and-a-half decades. Under the new rules, and unlike NRIs, OCIs have to cite reasons for undertaking work in certain areas in India.

The executive orders, which come into effect from the date of issuance, necessitate OCI cardholders to obtain special permission or a special permit from a competent authority or the Foreigners Regional Registration Officer (FRRO) or the Indian Mission if they wish to undertake research, “any Missionary, Tablighi, Mountaineering or Journalistic Activities, internship in foreign Diplomatic Missions or Foreign Government or take up employment in any Foreign Diplomatic Missions in India and undertake to visit any place which falls within the Protected, Restricted or Prohibited areas as notified by the Central government”.

The new rules

As in the case of foreign nationals, OCIs will require protected area permit (PAP) or restricted area permit (RAP) to visit areas notified or restricted by the Central government. They will be exempt from registering with the FRRO for any length of stay in India provided those OCIs who are normally resident in India intimate the jurisdictional FRRO or FRO as and when there is a change in their permanent residential address or occupation.

They will have parity with Indian nationals with respect to tariff in airfares in domestic routes and in entry fees charged at national parks, wildlife sanctuaries, national monuments, historical sites and museums. They will also have parity with NRIs with respect to inter-country adoption of children, eligibility to apply to all-India entrance tests against NRI seats but without the benefit of reservation. They can purchase or sell immovable properties other than agricultural land, farmhouse or plantation property. They will also be entitled to pursue professions such as medicine, dentistry, nursing, pharmacology, law, architecture and chartered accountancy.

While no conditions have been stated in the case of the above-mentioned professions, special permission or a special permit will be required from the External Publicity Division (XP) of the Ministry of External Affairs under the new rules for the category of “Journalistic Activities”. OCIs who were affected by the new rules wanted to know what extraordinary circumstances had arisen for the government to issue an executive order singling out certain categories while being lenient in the case of other categories and professions.

Frontline spoke to Anand, an OCI who had moved to the United Kingdom after marriage and is now a British citizen. An avid trekker, he also has family and a close network of friends in India whom he visits regularly. Expressing deep disappointment with the new rules and the restrictions, Anand asked: “The original premise of the OCI was to give Indians the opportunity of dual citizenship. At least that is what I thought was the original charter. As an OCI now I cannot be part of any religious organisation for travel purposes. That was not there before. What was the government thinking when it contemplated awarding dual citizenship? That was a BJP government [in 2003] too. Not having voting rights as an OCI is fine. But why would the government not want OCIs to buy agricultural land, not be part of the journalist community and not visit areas which are supposedly security risks as far as foreign nationals are concerned? Why reinforce these rules now?”

In 2003, under a different National Democratic Alliance dispensation, a proposal of dual citizenship for OCIs was mooted under the Citizenship (Amendment) Act. This was a brainchild of the then Home Minister L.K. Advani. A High Level Committee on the Indian Diaspora constituted by the Central government had recommended the amendment of the Act in order to grant dual citizenship to persons of Indian origin only in the case of certain countries.

The leap from contemplating giving OCIs dual citizenship to granting them the status of foreign nationals has baffled many. There are contradictions galore. An OCI, who by definition was an Indian citizen, albeit one who did not have an Indian passport, and under the Citizenship Act, could not hold public office or vote, has now (under the new rules) been decreed a foreign national in certain categories. If OCIs were indeed “foreigners”, they would not be referred to as citizens of India but instead would be covered by the Foreigners Act 1966 or the Foreign Exchange Management Act 2003.

The idea of singling out OCIs who were missionaries and Tablighis seems to have been prompted by hitherto unspecified considerations which can only be speculated about. For that matter, if the government was not happy with certain kinds of subjects taken up for research or issues covered by way of journalistic activities, it could well deny the OCI the right to pursue those interests without citing any reasons.

The notification also does not mention which research activities can be undertaken and which ones are proscribed, leaving the scope for interpretation far and wide and in the hands of the executive. For its part, the Home Ministry claimed that there was nothing new about the rules and that they were part of a brochure it published in November 2019. The difference is that what was then a brochure is now a gazetted notification.

Observers feel that the new rules could be a reaction to certain liberal judgments, given the recent propensity of courts to rule in favour of the rights of OCIs, including the right to propagate religion. It has also been highlighted that there are a good number of journalists who are OCIs, and not necessarily favourites of the government, who will now have to go through much red-tape in order to get clearances. There is also no guarantee that the rules will be applied objectively and without malice. Even if there is any evidence of the latter, there is no grievance redress system to address it. The fact that some kinds of religious activities have been singled out in contrast to other kinds of religious activities, smacks of a latent bias and a general anathema to any kind of proselytising activity.

For example, unlike missionaries or members of the Tablighi Jamaat, an OCI from the Hindu, Jain, Buddhist or Parsi community, and with affiliation to specific sects or groups of those religious orders, will not need a special permit to undertake religious activities. The inclusion of certain religious denominations and the exclusion of others is an affirmation of the government’s bias.

Tablighi Jamaat case

The particular manner in which Tablighis were singled out for participating in the annual Markaz event held at Nizamuddin Dargah in Delhi and categorised as COVID-19 “super spreaders” in March 2020 by sections of the media and the government was taken cognisance of even by the courts.

For several days, there was a separate category in State COVID-19 bulletins showing the number of Tablighi Jamaat members who were infected with the virus. They were blamed by the authorities for spreading the virus and their visas were cancelled. They were charged for violating protocols.

On April 1 last year, 960 members of the Tablighi Jamaat were blacklisted. The majority of them left after settling for plea bargains, paying fines and accepting the charge of visa violations, perhaps reasoning that this was the only way they could get back home. A few stayed back to challenge the FIRs registered against them.

In December 2020, a Delhi court acquitted them. Earlier in August, an Aurangabad Bench of the Bombay High Court had, while quashing FIRs filed in Delhi against members of the Tablighi Jamaat, said they had been made a “scapegoat” and that there was no proof that they had spread the virus. The media was also pulled up for its “big propaganda” against the members. While the government alleged that they had violated the provisions of the tourist visa by “spreading Muslim religion” and giving “speeches at the Masjid”, the Aurangabad Bench found little merit in these allegations. In fact, one of the judges referred to the history of the congregation alluding to its social reformist content.

Will weaken ties with Indian diaspora

Sanjay Hegde, senior advocate at the Supreme Court of India, said that the original purpose of the OCI scheme was to tell people of Indian origin that even if they could not be citizens, they would be given as many rights as citizens as possible. He said: “The new rules change the emphasis from near-citizenship to be above par foreigners. Technically the government is right. The OCI card was all along a long-term visa, but apart from long-term stay, it also gave a lot of privileges, or the attempt was to give a near-citizenship experience. These rules have basically been tightened to get over a few court rulings. It appears to be a knee-jerk reaction among the bureaucracy where one does not have to necessarily change parliamentary law but change regulations that can be done at the executive level. They have the rule making power as long as procedure is complied with and laid on the floor of Parliament and so on.”

When asked whether the new regulations might have had something to do with internal and national security considerations, Hegde replied: “Anything and everything gets justified under the garb of national security and also a very expansive xenophobic kind of description of nationalism. Whereas previous governments tried to look outward in the broader sense of the word, here it is more and more a question of defining who are true Indians and who are foreigners at sufferance. OCIs are also being told you are here only on sufferance. You have been given long-term visas no doubt but if you do anything we do not like, you will be treated as any other foreigner. Some of the prominent cases of revocation of OCI have also happened in such a framework. The case of Aatish Taseer case is an example. The outward reach that the Vajpayee government started is being rolled back. All the previous notifications have been rescinded. So an OCI cardholder is being told as long as you are on good behaviour, one doesn’t need to register at the FRRO or frequently run to the High Commission or Embassy for a visa renewal but one will be basically charged the same entry fee as an Indian citizen to Humayun’s tomb.”

Sanjay Hegde also felt that the move signalled a return to the “command and control structure”. He said that if there was a Hindu OCI who returned as part of the Hare Krishna movement, the restrictions would not be applicable. He added: “The Markaz was emptied by the Indian security set up. Per se, the security set-up is not bothered by the Tablighis, but wary of the possibility that they might turn extreme. But what most people don’t understand about the Tablighis is that they not looking for new Muslims. They are preaching to those people who are already Muslims.”

But the larger effect of the rules, he said, was the message to the NRI community not to say anything against India. “Some of them feel that today it is a BJP government that has done this; tomorrow if there is a Congress-led government, they might do the same. This will, in fact, loosen the ties between the Indian diaspora and India. The NRI community comes largely to attend family functions. These kind of restrictions will only hasten the process of separation. As the majority of OCIs are West-bound, the impact of the notification is yet to sink in. The Gulf states don’t give citizenship so it is not a problem there.”

Whatever be the reasons for the March 4 notification, they are in contrast to the stated policy of the government of reaching out to the Indian diaspora or projecting that India is an inclusive society open to persons of Indian origin irrespective of whether they are citizens or not. Given its broad sweep, the import of the notification does not seem innocuous either.

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