Indian Nationality Law - Overseas Citizenship of India

Overseas Citizenship of India

There is a form of Indian nationality, the holders of which are known as Overseas Citizens of India. The Constitution of India forbids dual citizenship or dual nationality, except for minors where the second nationality was involuntarily acquired. Indian authorities have interpreted the law to mean a person cannot have a second country's passport simultaneously with an Indian one — even in the case of a child who is claimed by another country as a citizen of that country, and who may be required by the laws of the other country to use one of its passports for foreign travel (such as a child born in the United States to Indian parents), and the Indian courts have given the executive branch wide discretion over this matter. Therefore, Overseas Citizenship of India is not a full citizenship of India and thus, does not amount to dual citizenship or dual nationality. Moreover, the OCI card is not a substitute for an Indian visa and therefore, the passport which displays the lifetime visa must be carried by OCI holders while traveling to India. There is no plan to issue Indian passports to Overseas Citizens of India, although the registration certificate will be in the form of a passport-like booklet (similar to the Person of Indian Origin Card mentioned below). The Cabinet has also directed the Ministry of Overseas Indian Affairs to work on a proposal to give biometric smart cards to registered Overseas Citizens of India.

The Central Indian Government, on application, may register any person as an Overseas Citizen of India if that Person is of Indian Origin and is from a country which allows dual citizenship in some form or the other. Broadly speaking, a "Person of Indian Origin" is a citizen of another country who:

• was a citizen of India on 26 January 1950 or at any time thereafter; or
• belonged to a territory that became part of India after 15 August 1947; or
• is the child or grandchild of a person described above; and
• has never been a citizen of Pakistan or Bangladesh.

Note that children of Indian parents do not automatically fulfil these requirements, and are therefore not automatically eligible for OCI.

The introduction of Overseas Indian Citizenship does not entitle people who have acquired, or are planning to acquire, foreign nationality or to retain their Indian passports. The law continues to require that Indian citizens who take foreign nationality must immediately surrender their Indian passports. Those who are only eligible can then apply for registration as Overseas Indian Citizens.

Indian Missions are authorized to grant applications for Overseas citizenship of India within to cases where there is no involvement in serious offences like drug trafficking, moral turpitude, terrorist activities or anything leading to imprisonment of more than a year.

Acquiring Overseas citizenship of India prevents British nationals(Overseas) from registering as full British citizens under Section 4B of the British Nationality Act of 1981 (which requires that nationals have no other citizenship in order to register.) It does not prevent them from acquiring full British citizenship by a different method and it does not revoke their British citizenship if they have already registered under Section 4B.

An Overseas Citizen of India will enjoy all rights and privileges available to Non-Resident Indians on a parity basis excluding the right to invest in agriculture and plantation properties or hold public office. The person has to carry his existing foreign passport which should include the new visa called ‘U’ visa which is a multi-purpose, multiple-entry, lifelong visa. It will entitle the Overseas Citizen of India to visit the country at any time for any length of time and for any purpose.

Overseas citizens of India will not enjoy the following rights even if resident in India: (i) the right to vote, (ii) the right to hold the offices of President, Vice-President, Judge of Supreme Court and High Court, Member of Lok Sabha, Rajya Sabha, Legislative Assembly or Council, (iii) appointment to Public Services (Government Service). Also, Overseas Citizens of India are not eligible for an inner line permit, and they have to apply for a protected area permit if they want to visit certain areas in India.

An interesting problem is that whether a person registered as an Overseas Citizen of India will lose the right of diplomatic protection by their home country while in India. Article 4 of the Hague Convention on Certain Questions relating to the Conflict of Nationality Laws of 1930 provides that "a State may not afford diplomatic protection to one of its nationals against a state whose nationality such person also possesses".

The case depends on two things: does the Indian government itself recognize Overseas citizenship of India as a true citizenship and, on that basis refuse, the right of diplomatic protection by the other country, and, does the person's home country recognize it and accept India's refusal?

It is unsure asIndia does not give Overseas Citizens an independent travel document but instead puts a visa in the other country's passport. If a person is eligible to have only another country's passport but not any form of Indian travel document, it is hard to avoid the conclusion that the person is a sole citizen of the other country for the purposes of diplomatic protection.

Though not a full-fledged dual citizenship, the privileges afforded by acquiring an OCI card is that now multinational companies are finding it simpler to hire the OCI cardholders, who enjoy a multiple entry, multipurpose lifelong visa to visit India. The card provides a lifelong visa to the holder, sparing them the need to obtain separate work permits. OCI holders are treated on par with NRIs for economic, financial and educational matters and only don’t have political rights and rights to buy agricultural and plantation properties or hold public office.

They are also exempt from registration with the Foreigners Regional Registration Officer (FRRO) on their arrival in the country and can stay or live for as long as they wish. OCI cardholders can travel at very short notice and take up assignments in India, while others could get caught up in bureaucratic delays over their employment visa. Many companies are following an active policy of moving PIOs to India for business expansion. Indian missions overseas are witnessing a deluge in OCI applications, the number of OCI cards issued by consulates around the world have been steadily rising with several Indian consulates grappling with a huge backlog of applications.