Aatish Taseer Loses OCI: Why MHA Order May Not Stand Scrutiny
The official copy of the order canceling his citizenship is not public yet, but relying on the official statement of the spokesperson for the Ministry of Home Affairs (MHA), it’s possible to arrive at a reasonable conclusion. This is not without its hazards, as Taseer has pointed out that there is one obvious ‘lie’ in the statement, and the reason afforded is a little vague.
To take the MHA’s case at its best and highest, one can safely assume that the fact of Salman Taseer’s (Aatish’s father) Pakistani citizenship being concealed at the time of application was the basis for revoking Aatish Taseer’s OCI status.
Why MHA’s Bid Against Taseer Only ‘Appears’ to Have ‘Legal Substance’
The legal scheme of the OCI status is governed by Section 7A, 7B, 7C and 7D of the Citizenship Act, 1955. These provisions were introduced in 2004 and have been amended in 2005 and 2015. Following the 2015 amendment, under Section 7D, the union government has the power to cancel the OCI registration of any card holder on one of six grounds. Taseer’s registration has been canceled under ground (a) of this section, namely: “(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.”
On the face of it, the MHA’s contention has legal substance.
The second proviso to sub-section (1) Section 7A of the Citizenship Act prohibits a person from getting OCI registration if either of such person’s parents is or has been a citizen of Pakistan or Bangladesh or any country specified by the union government. Given that Salman Taseer was a citizen of Pakistan (even though he was born in British India), this would seem to apply to Aatish Taseer, and having not mentioned his father’s Pakistani citizenship in his application form (a fact he has not denied so far), the MHA would seem to be legally entitled to cancel his OCI status.
Except for one small thing. Taseer got his OCI status in 2010.
What We Need to Know About OCI & PIO Schemes
In 2010, when the OCI scheme and the PIO scheme were separate, only the former was provided for under the Citizenship Act. The relevant provisions of the Citizenship Act as it stood then, were quite different. The only legal disability that prevented a person from becoming an OCI (if she was otherwise eligible under Section 7A(1)(a)) was that she should not have been a citizen of Pakistan or Bangladesh at any point of time. There is no reference here to the citizenship of the parents being a bar to gaining OCI status under the law at that time.
The wisdom of this move is another matter for discussion, but it cannot be disputed that at the time that Taseer got his OCI registration, he was fully eligible to be an OCI irrespective of his father’s citizenship status.
Under these circumstances, did the MHA invoke its power under Section 7D correctly?
The 2015 amendment does not, in any instance, have retroactive applicability. It does not ask existing OCI cardholders to apply afresh for a new card, nor does it say that these shall be deemed to apply from a date prior to the date of the amendment coming into force, that is 6 January 2015.
OCI Statuses Being Struck Down / Restored: Precedents
OCI status is a vested right that allows such persons to exercise all rights that a citizen would (with some exceptions provided in sub-section (2) of Section 7B). It is a well established principle of law that unless Parliament has expressly intended, no retroactive or retrospective application should be assumed. In this case, nothing in the 2015 amendment suggests any intent to apply retroactively in this manner. The new Section 7D may, at best, apply in a situation where information required to be disclosed in 2010 was deliberately hidden by the applicant. It does not allow the MHA to re-open registrations already granted on the new criteria introduced in 2015.
The Delhi HC did uphold such an order of cancellation of registration in the context of Syeda Afshan Rahman v Union of India because the applicant here had hidden her own past citizenship of Pakistan at the time of applying for OCI status. On the face of it, the Delhi HC should strike down the order stripping Taseer of his OCI status.
(Alok Prasanna Kumar is an advocate based in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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