Source: Supreme Court  

Why in News? 

The Supreme Court recently ruled that the physical or virtual presence of an Indian spouse is mandatory for processing an Overseas Citizen of India (OCI) card application for foreign nationals, as per Section 7-A(d) of the Citizenship Act, 1955.  

• This decision overturned the Delhi High Court's ruling, which had dispensed with the presence an Indian spouse. 
• The Supreme Court highlights that the statute explicitly requires adherence to prescribed conditions for OCI registration. 
• Justices Hrishikesh Roy, Justices Sudhanshu Dhuli and Justices SVN Bhatti held in the matter of Union of India v. Bahareh Bakshi. 

What was the Background of Union of India v. Bahareh Bakshi ? 

• An Iranian national married an Indian citizen in Dubai in 2009 after he converted to Islam. 
• After the marriage, disputes arose between the couple, leading to their estrangement.  
  • The wife relocated to Bengaluru while the husband moved to Goa. 
• The wife pursued higher education in India and filed a maintenance petition against her husband, which was granted by a Family Court in Bengaluru. 
• In November 2020, the wife applied for an Overseas Citizen of India (OCI) card based on her marriage to an Indian national under Section 7A(1)(d) of the Citizenship Act, 1955. 
• When she went to submit her application to the local Foreigners Regional Registration Office (FRRO) in Bengaluru, officials refused to accept it, stating that her husband's presence was necessary for processing the application. 
• The wife then filed a writ petition in the Delhi High Court, seeking to dispense with the requirement of her estranged husband's presence for processing her OCI card application. 
• The Single Judge of the Delhi High Court allowed her petition, directing the Union of India to accept her OCI card application without her spouse's presence. 
• The Division Bench of the Delhi High Court upheld the Single Judge's order, with a clarification that the Union of India could still investigate the genuineness of her claim. 
• The Union of India appealed this decision in the Supreme Court, arguing that the presence of both spouses is mandatory as per the Visa Manual and checklist for OCI card applications. 
• The case before the Supreme Court centered on whether the physical or virtual presence of the estranged Indian spouse is mandatory for processing an OCI card application under Section 7A(1)(d) of the Citizenship Act, 1955. 

What were the Court’s Observations? 

• The Court held that the Citizenship Act, 1955 allows for supplementary procedures like the interview specified in the Visa Manual and checklist for OCI card applications. 
• The Court observed that the physical or virtual presence of the spouse is mandatory for verifying the genuineness of the marriage and effectively considering OCI card applications under Section 7A(1)(d). 
• The Court criticized the High Court's characterization of the spousal presence requirement as "arbitrary," noting that no challenge had been made to the underlying regulations. 
• The Court stressed that it is the applicant's responsibility to satisfy the authorities about the genuineness of their application in the prescribed manner, including facilitating the presence of their spouse for the interview. 
• The Court acknowledged the existence of a provision for special circumstances under Section 7A(3) of the Act but maintained that the general procedure requiring spousal presence should be followed in most cases. 

Who are Overseas Citizens of India? 

• The Overseas Citizen of India (OCI) status was introduced through amendments to the Citizenship Act, 1955 in August 2005. 
• It allows Persons of Indian Origin (PIOs) who were citizens of India on 26th January, 1950, or were eligible to become citizens on that date, to register as Overseas Citizens of India. 
• This status provides a lifelong visa for visiting India, exemptions from registration with local authorities for extended stays, and general parity with Non-Resident Indians in economic, financial, and educational fields, excluding agricultural land and plantation properties. 
• OCI does not grant dual citizenship or political rights, and OCI holders are not entitled to certain constitutional rights, such as equality of opportunity in public employment. 
• In 2015 Amendment Modified Overseas Citizen of India (OCI) provision: 
  • Introduced "Overseas Citizen of India Cardholder" scheme  
  • Merged Persons of Indian Origin (PIO) card scheme with OCI card scheme. 

What are the Provisions of The Overseas Citizen of India Under the Citizenship Act, 1955? 

• Section 7A deals with registration of Overseas Citizen of India Cardholder. 
• Eligibility for Registration as an Overseas Citizen of India Cardholder:  
  • Section 7A(a) Persons of full age and capacity who:  
    • i) Are citizens of another country but were Indian citizens at or after the commencement of the Constitution.  
    • ii) Are citizens of another country but were eligible for Indian citizenship when the Constitution commenced. 
    • iii) Are citizens of another country but belonged to a territory that became part of India after 15th August, 1947.  
    • iv) Are children, grandchildren, or great-grandchildren of citizens described in (i), (ii), or (iii).  
  • Section 7A (b) Minor children of persons eligible under category (a).  
  • Section 7A(c) Minor children whose:  
    • Both parents are Indian citizens, or 
    • One parent is an Indian citizen. 
  • Section 7A(d) foreign spouses of:  
    • Indian citizens, or 
    • Registered Overseas Citizen of India Cardholders  
    • Provided that: 
      • The marriage is registered and has subsisted for at least two continuous years before application. 
      • The spouse undergoes prior security clearance by a competent Indian authority. 
• Exclusions:  
  • Persons who are or whose parents, grandparents, or great-grandparents are or were citizens of Pakistan, Bangladesh, or any other country specified by the Central Government are not eligible. 
• Conversion of Existing Cards:  
  • The Central Government may specify a date from which existing Persons of Indian Origin Cardholders will be deemed Overseas Citizens of India Cardholders. 
• Special Circumstances:  
  • The Central Government may, in special circumstances and after recording those circumstances in writing, register a person as an Overseas Citizen of India Cardholder, notwithstanding the eligibility criteria. 
• Application and Registration Process:  
  • Registration is subject to conditions, restrictions, and procedures prescribed by the Central Government. 
  • Interested individuals must apply for consideration. 
• Government Authority:  
  • The Central Government has the power to: 
    • a) Prescribe conditions and restrictions for registration.  
    • b) Specify countries whose citizens are ineligible for registration.  
    • c) Determine the date for conversion of existing cards. 
    • d) Register individuals in special circumstances. 

What is Section 7B,7C and 7D of the Citizenship Act, 1955? 

• Section 7B - Rights of Overseas Citizen of India (OCI) Cardholders: 
  • The Central Government may specify rights for OCI Cardholders through official notifications. 
  • OCI Cardholders are not entitled to certain rights reserved for Indian citizens, including: 
    • a) Equality in public employment opportunities  
    • b) Eligibility to be elected as President or Vice-President 
    • c) Appointment as Supreme Court or High Court judges  
    • d) Voting rights and eligibility for membership in Parliament or State Legislatures  
    • e) Appointment to public services, except those specified by special order 
• Section 7C - Renunciation of OCI Card: 
  • An adult OCI Cardholder may renounce their card through a prescribed declaration. 
  • Upon renunciation, the cardholder's spouse of foreign origin and minor children who obtained OCI Cards will also lose their OCI status. 
• Section 7D - Cancellation of OCI Registration: The Central Government may cancel OCI registration if: 
  • It was obtained through fraud, false representation, or concealment of material facts. 
  • The cardholder shows disaffection towards the Constitution of India. 
  • The cardholder engages in unlawful activities during wartime that assist an enemy. 
  • The cardholder is imprisoned for two or more years within five years of registration. 
  • The cardholder violates the provisions of this Act or other specified laws. 
  • Cancellation is necessary for national security, sovereignty, or public interest. 
  • The marriage basis for OCI status is dissolved or the cardholder remarries during the subsistence of the original marriage.