What legal protection should be granted to OCI cardholders who are ‘blacklisted’ and allegedly involved in anti-national activities? Delhi HC Reply

The Delhi High Court has clarified the legal protection afforded to Overseas Citizens of India (OCI) cardholders against whom backlisting orders are issued in circumstances involving allegations of anti-national activities against them.

Judge Sanjeev Narula noted that since the provisions of both the Citizenship Act and the Foreigners Act apply to OCI cardholders, a harmonious construction is necessary to enable the operation of both statutes.

Section 7D of the Citizenship Act deals with cancellation of registration as OCI. It mandates the right to hear the affected party before any adverse action is taken. Such a guarantee is not explicitly provided for in Article 3 of the Foreigners Act, which gives the central government the power to issue blacklisting orders against foreigners.

The Supreme Court has now held that where the grounds for blacklisting an OCI cardholder are similar to those for revoking OCI status under Section 7D of the Citizenship Act, the procedural safeguards under the latter must be extended to the blacklisting process.

“This means that even when Article 3 of the Aliens Act is invoked, the government must observe procedural fairness by giving the OCI card holder the opportunity to respond when the grounds for blacklisting are among those are mentioned in Article 7D,said the Court.

It added: “This interpretation is consistent with the intention of the legislature and the purpose and reasons behind the amendment of the Citizenship Act, which recognizes OCI cardholders and grants them rights that distinguish them from ordinary foreigners.”

In its 41-page judgment, the court also discussed the special status of OCI cardholders. It noted that the status of an OCI cardholder does not change the nationality of the individual, who, despite originating in India, legally holds the nationality of another country. However, as a foreigner is defined as a ‘non-citizen’, the Foreigners Act applies to all persons in India who do not have Indian citizenship, including OCI cardholders.

It further ruled that the Aliens Act is complementary to other laws and is not intended to replace or override them.

Noting that the Aliens Act applies together with all other legislation affecting non-citizens, including provisions regarding OCI status under the Citizenship Act, the Court held:

“The phrase “any other law for the time being in force” indicates that the Aliens Act continues to apply even though specific provisions of the Citizenship Act, such as those applicable to OCI cardholders, apply to certain categories of foreigners.”

The Court heard a plea from Khalid Jahangir Qazi, a US citizen and OCI cardholder, challenging two restrictive measures imposed on him.

He challenged an order of the Consulate General of India, New York, canceling his OCI card under the Citizenship Act, 1955. He also challenged a subsequent blacklisting order issued by the Union Home Ministry under the Foreigners Act, 1946, which barred his entry into India.

The reason given by the authorities was his alleged involvement in activities deemed detrimental to India’s interests. It was his case that when he arrived in New Delhi, he was refused entry at the Immigration Department with only a vague reference to unspecified ‘administrative reasons’.

Following the court’s directions, authorities filed a response stating that Qazi had been blacklisted by the Bureau of Immigration for alleged involvement in pro-Kashmiri separatist activities and anti-India propaganda. Later, authorities argued that their response should be treated as the official blacklisting order.

The Court granted relief to Qazi, holding that, unlike the Citizenship Act, Section 3 of the Foreigners Act does not expressly require a hearing or procedural safeguards similar to those imposed under the proviso to Section 7D of the Citizenship Act.

However, it added that if authorities invoke Section 3 to blacklist an OCI cardholder on grounds identical to those for OCI cancellation under Section 7D, there should be procedural safeguards are provided by the Citizenship Act.

“If this safeguard is not included in the law, the government could arbitrarily apply dual remedies, targeting the same actions on identical grounds through both a blacklisting order under Article 3 of the Aliens Act and a cancellation order pursuant to Article 7D(e) of the Aliens Act. Citizenship Act,‘ the Court ruled.

It further noted that even when Article 3 of the Aliens Act is invoked, the government must observe procedural fairness by giving the OCI card holder an opportunity to respond when the grounds for blacklisting include one of the are the grounds mentioned in Article 7D.

“If the state were to circumvent the safeguards embedded in the OCI system, it would erode the privileges the legislature intended for OCI cardholders, defeating both its purpose and subject to the status of OCI cardholders under the Citizenship Act, 1955, and renders their protection redundant. The result would be that an OCI cardholder, while technically retaining their registration, would effectively be prevented from exercising the rights conferred by that status.said the Court.

In relation to the present case, the Court noted that the show-cause notice issued to Qazi vaguely alleged that his actions were “anti-India” and prejudicial to “the sovereignty and integrity of India,” without providing any specific details or evidence support the claims.

“This lack of clarity deprived the petitioner of a fair opportunity to mount an effective defense, which is critical part of procedural justice and principles of natural justice. Consequently, the Court finds that the revocation order cannot withstand judicial scrutiny and is liable to be set aside.‘ it held up.

Noting that striking a balance between individual rights and national security is essential, Judge Narula ordered authorities to issue a fresh notice to Qazi, clearly specifying the reasons for any proposed restrictions or cancellations.

The Court ordered that Qazi should be given a reasonable opportunity to file a response within a specified period, after which the government should carefully consider his position and submit its position. a reasoned decision under both articles of association, which is communicated to him.

“The respondents will make a new decision taking into account the intention of the legislature behind the protection afforded to OCI cardholders and the findings of the Court set out above,it concluded.

Counsel for the petitioner: Mr. Parag P. Tripathi, Senior Advocate to Mr. Apoorv P. Tripathi, Ms. Anjali Kaushik, Ms. Arushi Mishra and Mr. Apaan Mittal, Advocates

Counsel for Respondents: Mr. Chetan Sharma, ASG with Mr. Apoorv Kurup, CGSC, Mr. Farman Ali, SPC, Mr. Amit Gupta, Mr. Saurabh Tripathi, Mr. Vinay Yadav, Ms. Usha Jamwal, Mr. Shubham Sharma, De Mr. Arnav Mittal and Mr. Vikramaditya Singh, advocates for UOI

Title: KHALID JAHANGIR QAZI BY HIS POWER OF LAWYER MS FARIDA SIDDIQI v. UNION OF INDIA BY SECRETARY & ORS and other related cases

Click here to read the order