What Legal Protections Should Be Granted To 'Blacklisted' OCI Cardholders Allegedly Involved In Anti-National Activities? Delhi HC Answers

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

Justice Sanjeev Narula observed that since provisions of both Citizenship Act and 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 a right to hearing to the affected party, before adverse actions. Such a safeguard is not explicit under Section 3 of the Foreigners Act which empowers the Central government to issue blacklisting orders against foreigners.

The High Court has now held that where the grounds for blacklisting an OCI cardholder mirror those for cancellation of OCI status under Section 7D of the Citizenship Act, the procedural safeguards under the latter should be extended to the blacklisting process.

“This means that even when invoking Section 3 of the Foreigners Act, the government should observe procedural fairness by allowing the OCI cardholder an opportunity to respond when the grounds for blacklisting are one of the grounds mentioned under Section 7D,” the Court said.

It added: “This interpretation is in consonance with the legislative intent, and the object and reasons behind the amendment of Citizenship Act, which recognizes OCI cardholders and grants them rights that set them apart from ordinary foreigners.”

In its 41-page judgment, the bench also discussed the peculiar status of OCI cardholders. It noted that the status of an OCI cardholder does not alter the nationality of the individual, who, despite having origins in India, legally holds the nationality of a foreign country. However, since a foreigner is defined as a “non-citizen,” the Foreigners Act applies to all individuals in India who do not hold Indian citizenship, including OCI cardholders.

It further held that the Foreigners Act is supplementary to other laws and is not intended to replace or override them.

Observing that the Foreigners Act applies along with any other legislation affecting non-citizens, including provisions concerning OCI status under the Citizenship Act, the Court held:

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

The Court was dealing with a plea moved by Khalid Jahangir Qazi, a USA national and OCI cardholder, challenging two restrictive measures imposed upon him. 

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

The reason given by the authorities was his alleged involvement in activities deemed to be prejudicial to the interests of India. It was his case that when he arrived in New Delhi, he was denied entry at immigration with only a vague reference to unspecified “administrative reasons.”

On Court's direction, the authorities filed a reply stating that Qazi had been blacklisted by the Bureau of Immigration due to alleged involvement in pro-Kashmiri separatist activities and anti-India propaganda. Later, the authorities submitted that their reply should be treated as the official blacklisting order.

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

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

“If this safeguard is not read in to the statute, the government could arbitrarily apply dual remedies, targeting the same actions on identical grounds through both a blacklisting order under Section 3 of the Foreigners Act and a cancellation order under Section 7D(e) of the Citizenship Act,” the Court held.

It further observed that even when invoking Section 3 of the Foreigners Act, the government should observe procedural fairness by allowing the OCI cardholder an opportunity to respond when the grounds for blacklisting are one of the grounds mentioned under Section 7D.

“Allowing the state to circumvent the safeguards embedded in the OCI scheme would erode the privileges the Legislature intended for OCI cardholders, undermining both the purpose and object of the status of OCI cardholders under the Citizenship Act, 1955, and rendering their protections redundant. The result would be that an OCI cardholder, though technically retaining their registration, would effectively be prevented from exercising the rights afforded by that status,” the Court said.

Regarding the case in hand, the Court noted that the show cause notice issued to Qazi vaguely asserted that his actions were “anti-India” and adverse to “the sovereignty and integrity of India,” without any specific details or evidence supporting the claims.

“This lack of clarity deprived the Petitioner of a fair chance to present an effective defence, a crucial component of procedural fairness and principles of nature justice. Consequently, this Court finds that the cancellation order cannot withstand judicial scrutiny and is liable to be set aside,” it held.

Observing that striking a balance between individual rights and national security is essential, Justice Narula directed the authorities to issue a fresh notice to Qazi clearly specifying the grounds for any intended restrictions or cancellations.

The Court ordered that Qazi be given a reasonable opportunity to submit a reply within a specified timeframe, after which the government should carefully consider his representation and issue a reasoned decision under both the statutes, which shall be conveyed to him.

“The Respondents shall take fresh decision keeping in mind the legislative intent behind the protections afforded to OCI cardholders and the findings of the Court rendered hereinabove,” it concluded.

Counsel for Petitioner: Mr. Parag P. Tripathi, Senior Advocate with 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, Mr. Arnav Mittal and Mr. Vikramaditya Singh, Advocates for UOI

Title: KHALID JAHANGIR QAZI THROUGH HIS POWER OF ATTORNEY HOLDER MS FARIDA SIDDIQI v. UNION OF INDIA THROUGH SECRETARY & ORS and other connected matter

Citation: 2024 LiveLaw (Del) 1235

Click here to read order