PROVISIONS UNDER CITIZENSHIP ACT 1955
The Central Government has discretionary powers under Section 7-A(3) of the Citizenship Act,1955 to grant OCI card, if the conditions, mentioned therein are satisfied. Section 7(A) of the Act is reproduced as under:-
7-A. Registration of Overseas Citizen of India Cardholder.―(1) The Central Government may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, register as an Overseas Citizen of India Cardholder―
(a) any person of full age and capacity,―
(i) who is a citizen of another country, but was a citizen of India at the time of, or at any time after the commencement of the Constitution; or
(ii) who is a citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or
(iii) who is a citizen of another country, but belonged to a territory that became part of India after the 15th day of August, 1947; or
(iv) who is a child or a grandchild or a great grandchild of such a citizen; or
(b) a person, who is a minor child of a person mentioned in clause (a); or
(c) a person, who is a minor child, and whose both parents are citizens of India or one of the parents is a citizen of India; or
(d) spouse of foreign origin of a citizen of India or spouse of foreign origin of an Overseas Citizen of India Cardholder registered under section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application under this section:
Provided that for the eligibility for registration as an Overseas Citizen of India Cardholder, such spouse shall be subjected to prior security clearance by a competent authority in India: Provided further that 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, by notification in the Official Gazette, specify, shall be eligible for registration as an Overseas Citizen of India Cardholder under this sub-section.
(2) The Central Government may, by notification in the Official Gazette, specify the date from which the existing persons of Indian Origin Cardholders shall be deemed to be Overseas Citizens of India Cardholders.
Explanation.―For the purposes of this sub-section, “Persons of Indian Origin Cardholders” means the persons registered as such under notification number 26011/4/98 F.I., dated the 19th August, 2002, issued by the Central Government in this regard.
(3) Notwithstanding anything contained in sub-section (1), the Central Government may, if it is satisfied that special circumstances exist, after recording the circumstances in writing, register a person as an Overseas Citizen of India Cardholder.
The rights given to an Overseas Citizen of India Cardholder are covered under Section 7-B of the Citizenship Act, 1955 and is being reproduced as under:-
7-B. Conferment of rights on Overseas Citizen of India Cardholder.―(1) Notwithstanding anything contained in any other law for the time being in force, an Overseas Citizen of India Cardholder shall be entitled to such rights, other than the rights specified under sub-section (2), as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(2) An Overseas Citizen of India Cardholder shall not be entitled to the rights conferred on a citizen of India―
(a) under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;
(b) under article 58 of the Constitution for election as President;
(c) under article 66 of the Constitution for election as Vice-President;
(d) under article 124 of the Constitution for appointment as a Judge of the Supreme Court;
(e) under article 217 of the Constitution for appointment as a Judge of the High Court;
(f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter;
(g)under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;
(h) under sections 5, 5A and section 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or the Legislative Council, as the case may be, of a State;
(i) for appointment to public services and posts in connection with affairs of the Union or of any State except for appointment in such services and posts as the Central Government may, by special order in that behalf, specify.
(3) Every notification issued under sub-section(1) shall be laid before each House of Parliament.
Relevant provisions Citizenship Rules, 2009:
- Application for registration under section 7-A- (1) An application for registration as an overseas citizen of India cardholder under section 7-A shall be made in Form XXVIII.
[2] Every person, including a minor, eligible to be registered as Overseas Citizen of India Cardholder under Section 7-A may submit separate application under sub-rule (1).
[3] In case of a minor, the application form may be signed by either of the parents or by the legal guardian of such minor, as the case may be.
[4] In case of a person referred to in clause (d) of sub-section (1) of section 7-A, who is a spouse of foreign origin of a citizen of India or a spouse of foreign origin of an Overseas Citizen of India Cardholder, only one such living spouse fulfilling the conditions laid down under that clause shall be eligible to apply for registration as Overseas Citizen of India Cardholder.
- Authority to which application are to be made-An application under rule 29 shall be made in duplicate-
(a) in India –
(i) to the Foreigners Regional Registration Officer (FRRO) as may be specified by the Central Government; or
(ii) to the Foreigners Division, Ministry of Home Affairs;
(b) outside India-
(i) to the Indian Mission or Post having jurisdiction over the country of which an applicant is a citizen; or
(ii) where he is not in the country of his citizenship, to the Indian Mission or Post having jurisdiction over the country of which an applicant is ordinarily resident.
- Scrutiny of applications.– (1) The Central Government may, after a preliminary inquiry and on being apparently satisfied that there is no adverse information available against the applicant, register the person as an [overseas citizen of India cardholder] as soon as possible but not later than a period of thirty days and the case shall be placed for post verification of the antecedents.
(1-A) In the case of a person referred to in clause (d) of sub-section (1) of section 7-A of the Citizenship Act, 1955, who is a spouse of foreign origin of a citizen of India or a spouse of foreign origin of an overseas citizen of India cardholder, the registration as an overseas citizen of India cardholder of such person shall be subject to prior security clearance from a competent authority in India as provided under the said clause (d) of sub-section (1) of section 7-A of the Citizenship Act, 1955 [and only one living spouse duly fulfilling the conditions laid down in said clause (d) of sub-section (1) of section 7-A shall be registered as an Overseas Citizen of India Cardholder]
(2) The Central Government may, in case of any adverse information against the applicant, and after making such inquiry as it considers necessary, approve or reject the grant of registration within a period of four months from the date of receipt of the application.
- Authority for revision of an order made under the Act by prescribed authority.-If an application is made by a person aggrieved by an order made under the provisions of the Act,the application shall be disposed off after giving a reasonable opportunity to the person affected to present his case, by an authority one rank higher than the authority specified for disposal of application against the order of which revision is sought.
The provisions of the Citizenship Act, 1955 are subjected to the rule of law, hence such discretion cannot be practiced arbitrary. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides as it would only be a case of colorable exercise of power.
In the case of S.G.Jaisinghani Vs. Union of India &ors, AIR 1967 SC 1427, the Constitution Bench of the Apex Court observed as under:-
“In the context it is important to emphasize that absence of arbitrary power is the first essence of the rule of law, upon which our whole Constitutional System is based. In a system governed by rule of law, discretion, when conferred upon Executive Authorities, must be confined within the clearly defined limits. Rule of law, from this point of view, means that the decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.”
The Hon’ble Supreme Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress &Ors, AIR 1991 SC 101 observed that there is no manner of doubt that the public authorities and the Government are bound to act reasonably and fairly and each action of such authorities must pass the test of reasonableness and whenever action taken is found to be lacking bonafide and made in colorable exercise of the power, the Court should not hesitate to strike down such unfair and unjust proceedings.