law and justice

Dual Citizenship for NRIs till a Dream
Government Talks about Voting Rights

Finally, the Indian government has launched the much talked about scheme of dual citizenship [Overseas Citizenship of India (OCI)] for persons of Indian origin living abroad. The Indian Diaspora has been demanding for long a dual citizenship as is available to citizens of some other countries. The National Democratic Alliance government had introduced a Bill in 2003 to amend The Citizenship Act, 1955.  Joginder Singh Toor, advocate and a commentator on laws discusses the merits of the new law and what needs to be done.

Now the United Progressive Alliance government has amended The Citizenship Act, particularly Clause (g) of Sub-Section (3) of Section 5 which explains how citizenship, can be acquired by persons of Indian origin by registration.

A person born in India on or after 26^th January,1950 but before 1^st  July, 1987 irrespective of nationality of his parents, or born after 1^ST  July, 1987 but before 3^rd December, 2004 if either of his parents is a citizen of India at the time of his birth, or person born in India on or after 3^rd December, 2004 if both the parents are citizens of India or one of the parents is a citizen of India and the other is not an illegal migrant at the time of his birth, is a citizen of India by birth.

A person born out side India on or after 26^th January, 1950 but before 10^th December, 1992, if his father was a citizen of India by birth at the time of his birth, or his father was a citizen of India by descent only if his birth is registered at an Indian Consulate within one year from the date of his birth or with the permission of the Central Govt. after the expiry of said period. Or born outside India on or after 10^th December, 1992 but before 3^rd December, 2004, if either of his parents was a citizen of India by birth at the time of his birth or was a citizen of India by descent if his birth is registered at an Indian Consulate within one year from the date of birth or with the permission of the Central Govt. after the expiry of said period, or born outside India on or after 3^rd December, 2004 if the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian Consulate within one year or with permission afterwards, is a citizen of India by descent.

The most vital part of Section 5 is acquisition of citizenship by registration, which includes dual citizenship in the manner now provided in the Section. Citizenship by registration can be acquired by (a)  persons of Indian origin who are ordinarily resident in India for seven years; (b) who are ordinarily resident in any country or place out side undivided India; (c) who are married to a citizen of India and are ordinarily resident in India for seven years; (d) minor children whose both parents are Indian citizens; (e) persons of full age whose both parents are registered as citizens of India; (f) persons of full age who or either of the parents were earlier citizen of independent India and residing in India for one year immediately before making application.

The crucial addition to Section 5 is Clause (g) providing "5(3)(g)  Persons of full age and capacity who has been registered as an Overseas citizen of India for five years and residing in India for one year before making application under Section 1(g)." 

The Government of India while launching the (OCI) Scheme has claimed credit of implementing Prime Minister Manmohan Singh's statement at the Pravasi Bharati Divas dated January 7 at Hyderabad extending the scope of the (OCI) to persons of Indian origin of all nationalities that allow dual citizenship in their local laws in some form or the other. The scheme becomes effective from December 2, 2005 and people in any part of the world can apply "from now on" either on line (www.mha.nic.in) or through Indian Missions. The entire process from the application and issuance of the (OCI) card would take about a month, it is claimed. The Scheme does not apply to Pakistan and Bangla Desh. The government has made a list of 71 countries which is likely to be upgraded.

Earlier  a scheme for issuance of PIO Card (Person of Indian Origin Card) was introduced in March 1999 which applied to persons of Indian origin having foreign citizenship (not being a citizen of Pakistan, Bangladesh and other countries as may be specified) who at any time held an Indian Passport or either of their parents or grand parents or great grand parents was born in and permanently resided in India could enjoy facility of holding a PIO Card (i) not required a Visa to visit India, (ii) be exempted from requirement of registration if his stay in India does not exceed 180 days (iii) was to enjoy parity with NRIs in respect of all facilities economic, financial, education except agricultural/plantation properties and in the sphere of political rights.

Joint Secretary D.S.Mishra while explaining the new law said that earlier scheme was a statutory one, whereas the present (OCI) scheme has been launched after amending the Act. The Home Ministry communications do  not indicate as yet the difference in facilities under the earlier or the present scheme. However it states that (OCI) card holders shall get all rights of a NRI and that (OCIs) will have multipurpose, multi-entry and life long visas and that every registered OCI will be issued a registration certificate that is printed like an Indian Passport in different colour and an OCI Visa sticker will be pasted in the person's foreign Passport.

Reverting again to acquisition of citizenship by registration it is still a night mare for the Indian Diaspora if the provisions of Section 5(3)(g) are minutely observed. For acquisition of dual citizenship a person has to be an (OCI) card holder for five years and residing in India for one year before making application in Form III-C under section 5(1) (g).

Section 7B of amended Citizenship Act provides that overseas  citizens of India shall be entitled to such rights as the central government may provide, except that he can not seek the office of President , Vice President of India, judge of the Supreme Court or a High Court. He or she can not get registered as voter or seek a seat in parliament or a state assembly or an appointment  to a public post except in services and posts permitted by the central  government

The Minister for Overseas , however, has held the promise that government is seriously  considering to give voting right to overseas citizens of India.  A hurdle , however, remains  about the acquisition of citizenship itself  . 

Residing in India for one year by any person who has since long settled in a foreign country, has acquired citizenship of that country, has set up his business or engaged in vocation or profession since long, would certainly feel difficult to part company for full one year and reside in India for making an application for acquisition of dual citizenship. The demand of the persons of Indian origin settled abroad has been to provide them as many rights as could possibly be equal to that of Indian citizen had they been here, but for the compulsions under which they had to leave their country to which they were tied by soil and sweat and of which they had once been flag bearers. The Government of India would get no credit by compelling the persons of Indian origin to leave their jobs, business and engagements to reside in India for one year for making an application. It would have been appropriate to grant them dual citizenship straight away even without waiting for period of five years as (OCI) card holders.

[jogindersingh_toor@yahoo.com]