IV. Cancellation of Registration as Overseas Citizen of India Cardholder

The Central Government may cancel the registration of a person as an overseas citizen of India cardholder, if it is satisfied that-

(a) the registration as an overseas citizen of India cardholder was obtained by means of fraud, false representation or the concealment of any material fact; or

(b) the overseas citizen of India cardholder has shown disaffection towards the Constitution of India; or

(c) the overseas citizen of India cardholder has, during any war in which India may be engaged, unlawfully traded or communicated with an

enemy; or

(d) 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

(e) 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; or

(f) the marriage of an overseas citizen of India cardholder-

(i) has been dissolved by a competent court of law or otherwise; or

(ii) has not been dissolved but, during the subsistence of such marri he has solemnised marriage with any other person.

Table 6.1 Comparing NRI, PIO and OCI CardholderB‌

(1) Who was a citizen of India at the time of, or at any time after the commencement of the Constitution i.e. 26.01.1950; or

(2) who was eligible to become a citizen of India on 26.01.1950; or

(3) who belonged to a territory that became part of India after 15.08.1947; or

(4) who is a child or a grandchild or a great grandchild of such a citizen; or

(5) who is a minor child of such persons mentioned above; or

(6) who is a minor child and whose both parents are citizens of India or one of the parents is a citizen of India; or

(7) spouse of foreign origin of a citizen of India or spouse of foreign origin of an Overseas Citizen of India Cardholder registered under the Citizenship Act, 1955 and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the

submitted to the Foreigners Regional Registration Offices (FRROs) according to their jurisdictional control.

5. Fees ? -- -- (a) in case of

application submitted in Indian Mission/ Post abroad-US ₹275 or equivalent in local currency.

(b) in case of application submitted in India- Rs.15,000/-

6. Which nationals are ineligible ?

-- -- 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.

7. What benefits one is

entitled to ?

All benefits as available to Indian citizens subject to notifications issued by the Government from time to time

No specific benefits

(i) Multiple entry lifelong visa for visiting India for any purpose (However OCI

Cardholders will require a special permission to undertake research work in India for which they may submit the

application to the

Indian Mission/ Post/ FRRO concerned).

(ii) Exemption from

registration with Foreigners Regional Registration Officer (FRRO) or

Foreigners Registration Officer (FRO) for any length of stay in India.

(iii) 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 or plantation properties.

(iv) Registered Overseas Citizen of India Cardholder shall be treated at par with Non- Resident Indians in the matter of inter- country adoption of Indian children.

(v) Registered Overseas Citizen of India Cardholder shall be treated at par with resident Indian nationals in the matter of tariffs in air fares in domestic sectors in India.

(vi) Registered Overseas Citizen of India Cardholder shall be charged the same entry fee as domestic Indian visitors to visit national parks and wildlife sanctuaries in India.

(vii) Parity with Non- Resident Indians (NRI) in respect of:-

(A) entry fees to be charged for

visiting the national monuments, historical sites and museums in India.

(B) pursuing the following professions in

India, in

pursuance of the provisions contained in the relevant Acts, namely:-

(a) doctors,

dentists, nurses and pharmacists;

(b) advocates;

(c) architects; and

(d) chartered

accountants.

(C) to appear for the All India Pre- Medical Test

8. Does he/she require visa for visiting India ?

or such

other tests

to make them eligible for admission in pursuance of the

provisions contained in the relevant Acts.

(viii) State Governments should ensure that the OCI Cardholder registration booklets of OCI Cardholders are treated as their identification for any services rendered to them. In case proof of residence is required, Overseas Citizens of India Cardholder may give an affidavit stating that a particular/ specific address may be treated as their place of residence in India.

No Yes Can visit India without visa for life long.

9. Is he/she

required to register with the local police

No Yes if the No period of

stay is for more than 180 days

Table 6.2 Articles Related to Citizenship at a Glance

NOTES AND REFERENCES‌

1. On this date, the permit system for such migration was introduced.

2. This provision refers to migration after 1 March, 1947 but before 26 January, 1950. The question of citizenship of persons who migrated after 26 January, 1950, has to be decided under the provisions of the Citizenship Act, 1955.

2a. The form of the oath is as follows:

I, A/B................... do solemnly affirm (or swear) that I will bear true faith and allegiance to the Constitution of India as by law established, and that I will faithfully observe the laws of India and fulfill my duties as a citizen of India.

3. The 8th Schedule of the Constitution recognises presently 22 (originally 14) languages.

4. This will not apply if he is a student abroad, or is in the service of a government in India or an international organisation of which India is a member, or has registered annually at an Indian consulate his intention to retain his Indian citizenship.

5. By virtue of Article 371-D inserted by the 32nd Constitutional Amendment Act, 1973.

5a. Article 371D has been extended to the State of Telangana by the Andhra Pradesh Reorganisation Act, 2014.

6. Further, the Jammu and Kashmir Reorganisation Act, 2019, bifurcated the erstwhile State of Jammu and Kashmir into two separate Union territories, namely, the Union territory of Jammu & Kashmir and the Union territory of Ladakh.

7. Annual Report 2015-16, Ministry of Home Affairs, Government of India, p. 262.

8. This Table is downloaded from the website of Ministry of Home Affairs, Government of India.

7 Fundamental Rights‌

The Fundamental Rights are enshrined in Part III of the Constitution from Articles 12 to 35. In this regard, the framers of the Constitution derived inspiration from the Constitution of

USA (i.e., Bill of Rights).

Part III of the Constitution is rightly described as the Magna Carta of India.1 It contains a very long and comprehensive list of 'justiciable’ Fundamental Rights. In fact, the Fundamental Rights in our Constitution are more elaborate than those found in the Constitution of any other country in the world, including the USA.

The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. They uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation.

The Fundamental Rights are meant for promoting the ideal of political democracy. They prevent the establishment of an authoritarian and despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature. In short, they aim at establishing 'a government of laws and not of men’.

The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. They are 'fundamental’ also in the sense that they are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.

Originally, the Constitution provided for seven Fundamental Rights viz,

1. Right to equality (Articles 14-18)

2. Right to freedom (Articles 19-22)

3. Right against exploitation (Articles 23-24)

4. Right to freedom of religion (Articles 25-28)

5. Cultural and educational rights (Articles 29-30)

6. Right to property (Article 31)

7. Right to constitutional remedies (Article 32)

However, the right to property was deleted from the list of Fundamental Rights by the 44th Amendment Act, 1978. It is made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.

The Fundamental Rights guaranteed by the Constitution are characterised by the following:

1. Some of them are available only to the citizens while others are available to all persons whether citizens, foreigners or legal persons like corporations or companies.

2. They are not absolute but qualified. The state can impose reasonable restrictions on them. However, whether such restrictions are reasonable or not is to be decided by the courts. Thus, they strike a balance between the rights of the individual and those of the society as a whole, between individual liberty and social control.

3. All of them are available against the arbitrary action of the state. However, some of them are also available against the action of private individuals.

4. Some of them are negative in character, that is, place limitations on the authority of the State, while others are positive in nature, conferring certain privileges on the persons.

5. They are justiciable, allowing persons to move the courts for their enforcement, if and when they are violated.

6. They are defended and guaranteed by the Supreme Court. Hence, the aggrieved person can directly go to the Supreme Court, not necessarily by way of appeal against the judgement of the high courts.

7. They are not sacrosanct or permanent. The Parliament can curtail or repeal them but only by a constitutional amendment act and not by an ordinary act. Moreover, this can be done without affecting the 'basic structure’ of the Constitution. (The amenability of fundamental rights is explained in detail in Chapter 11).

8. They can be suspended during the operation of a National Emergency except the rights guaranteed by Articles 20 and 21. Further, the six rights guaranteed by Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression (i.e., external emergency) and not on the ground of armed rebellion (i.e., internal emergency). (The suspension of fundamental rights during a national Emergency is explained in detail in Chapter 16).

9. Their scope of operation is limited by Article 31A (saving of laws providing for acquisition of estates, etc.), Article 31B (validation of certain acts and regulations included in the 9th Schedule) and Article 31C (saving of laws giving effect to certain directive principles).

10. Their application to the members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33).

11. Their application can be restricted while martial law is in force in any area. Martial law means 'military rule’ imposed under abnormal circumstances to restore order (Article 34). It is different from the imposition of national emergency.

12. Most of them are directly enforceable (self-executory) while a few of them can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures so that uniformity throughout the country is maintained (Article 35).

The term 'State’ has been used in different provisions concerning the fundamental rights. Hence, Article 12 has defined the term for the purposes of Part III. According to it, the State includes the following:

(a) Government and Parliament of India, that is, executive and legislative organs of the Union government.

(b) Government and legislature of states, that is, executive and legislative organs of state government.

(c) All local authorities, that is, municipalities, panchayats, district boards, improvement trusts, etc.

(d) All other authorities, that is, statutory or non-statutory authorities like LIC, ONGC, SAIL, etc.

Thus, State has been defined in a wider sense so as to include all its agencies. It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.

According to the Supreme Court, even a private body or an agency working as an instrument of the State falls within the meaning of the 'State’ under Article 12.

Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. In other words, it expressively provides for the doctrine of judicial review. This power has been conferred on the Supreme Court (Article 32) and the high courts (Article 226) that can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.

The term 'law’ in Article 13 has been given a wide connotation so as to include the following:

(a) Permanent laws enacted by the Parliament or the state legislatures;

(b) Temporary laws like ordinances issued by the president or the state governors;

(c) Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and

(d) Non-legislative sources of law, that is, custom or usage having the force of law.

Thus, not only a legislation but any of the above can be challenged in the courts as violating a Fundamental Right and hence, can be declared as void.

Further, Article 13 declares that a constitutional amendment is not a law and hence cannot be challenged. However, the Supreme Court held in the Kesavananda Bharati case2 (1973) that a Constitutional amendment can be challenged on the ground that it violates a fundamental right that forms a part of the 'basic structure’ of the Constitution and hence, can be declared as void.

Table 7.1 Fundamental Rights at a Glance

Category Consists of

1. Right to equality (Articles 14-18)

(a) Equality before law and equal protection of laws (Article 14).

(b) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).

2. Right to freedom (Articles 19-22)

3. Right against exploitation (Articles 23-24)

4. Right to freedom of religion (Article 25-28)

(c) Equality of opportunity in matters of public employment (Article 16).

(d) Abolition of untouchability and prohibition of its practice (Article 17).

(e) Abolition of titles except military and academic (Article 18).

(a) Protection of six rights regarding freedom of: (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, and

(vi) profession (Article 19).

(b) Protection in respect of conviction for offences (Article 20).

(c) Protection of life and personal liberty (Article 21).

(d) Right to elementary education (Article 21A).

(e) Protection against arrest and detention in certain cases (Article 22).

(a) Prohibition of traffic in human beings and forced labour (Article 23).

(b) Prohibition of employment of children in factories, etc. (Article 24).

(a) Freedom of conscience and free profession, practice and propagation of religion (Article 25).

(b) Freedom to manage religious affairs (Article 26).

(c) Freedom from payment of taxes for promotion of any religion (Article 27).

(d) Freedom from attending

5. Cultural and educational rights (Articles 29-30)

6. Right to constitutional remedies (Article 32)

religious instruction or worship in certain educational institutions (Article 28).

(a) Protection of language, script and culture of minorities (Article 29).

(b) Right of minorities to establish and administer educational institutions (Article 30).

Right to move the Supreme Court for the enforcement of fundamental rights including the writs of (i) habeas corpus, (ii) mandamus, (iii) prohibition, (iv) certiorari, and (v) quo war-rento (Article 32).

Table 7.2 Fundamental Rights (FR) of Foreigners

establish and administer educational institutions (Article 30).

detention in certain cases (Article 22).

6. Prohibition of traffic in human beings and forced labour (Article 23).

7. Prohibition of employment of children in factories etc., (Article 24).

8. Freedom of conscience and free profession, practice and propagation of religion (Article 25).

9. Freedom to manage religious affairs (Article 26).

10. Freedom from payment of taxes for promotion of any religion (Article 27).

11. Freedom from attending religious instruction or worship in certain educational institutions (Article 28).