Husband's Alleged Involvement In Criminal Case No Ground To Deny Security Clearance To Spouse For OCI Registration: Delhi High Court

The Delhi High Court has recently held that mere familial relationship with an accused, without evidence of direct involvement in the alleged crime, is no ground to deny security clearance to a spouse for Overseas Citizen of India (OCI) registration.

“Mere association or familial relationship with an accused, without concrete evidence of direct involvement or complicity in the alleged crimes, does not substantiate the grounds for denying security clearance under Section 7A(1)(d) of the Citizenship Act and neither does it withstand the test of arbitrariness and reasonableness under Article 14 of the Constitution,” Justice Sanjeev Narula said.

Section 7A(1)(d) of the Citizenship Act states that the Central Government may register a spouse of foreign origin of a citizen of India or spouse of foreign origin of an OCI Cardholder, as an OCI cardholder. The proviso adds that for the eligibility for registration, such spouse shall be subjected to prior security clearance by a competent authority in India.

The court allowed the plea moved by a woman and her minor son, both Russian nationals, challenging Centre's decision to close their applications for registration as an Overseas Citizen of India. The woman got married to an Indian national in 2019 who unfortunately died in 2022. The applications were moved after demise of the husband.

The Union Government took the stand that the woman's request was denied as a look out circular (LOC) was issued against her late husband by the Enforcement Directorate (ED) in September 2018. It was contended that the issuance and subsistence of the LOC was a critical factor in the decision to close the OCI applications.

The ED informed the authorities that summons were issued to the woman but she had allegedly evaded them and had been hampering the investigation. The Centre submitted that her alleged non-cooperation with the ongoing investigation was the reason for denial of the security clearance for grant of OCI registration in terms of the proviso of Section 7A(1)(d) of the Act.

On the other hand, the woman submitted that the only summons issued to her by ED were in December 2022 to which she had duly complied. To demonstrate her commitment, she undertook to appear before ED, Mumbai on August 12.

Accordingly, the court directed the Central Government to reassess the petitioners' visa extension applications promptly and take appropriate action reflective of the compliance shown by the woman.

The court said that though it acknowledges the executive's prerogative in matters of national security, but, it must also ensure that the discretion is not exercised arbitrarily.

“The claims of national security must be backed by credible evidence and a transparent process, especially given the severe personal and legal implications for the individuals involved. In this regard, it is noted that generally the Courts leave the matters of national security policy to the expertise of the executive, however, the decisions taken by the State agencies, which is claimed to be in pursuance of such policies, are still amenable to the reasonable standards of fairness,” the court said.

It added there was no basis or evidence to indicate that the woman was also under investigation by the ED and that the ongoing investigation into her late husband's activities and her prior employment at his company — did not per se disqualify her from OCI eligibility.

“It is important to note that, while an LOC has been issued against her, there is no criminal case registered directly against her, which distinguishes her situation from those typically associated with such circulars. LOCs are primarily utilized to monitor and restrict the movements of individuals who are either absconding or whom law enforcement agencies need to maintain close surveillance on, especially at immigration checkpoints across the country,” the court observed.

Regarding rejection on the minor son's application, the court said that ongoing investigations involving his parents did not, under the cited statute, provide a valid ground for denying him OCI status.

Quashing Centre's decision, the court directed the authorities to consider afresh the OCI applications of the mother and son as well as her request for extension of the visa.

Counsel for Petitioners: Mr. Tanveer Ahmad Mir, Mr. Ayush Jain, Mr. Tushar Thakur, Mr. Yashovardhan Upadhyay and Ms. Anushka Khaitan, Advocates

Counsel for Respondents: Mr. Satya Ranjan Swain, SPC with Mr. Rahul Kumar Sharma, G.P. and Mr. Kautilya Birat, Advocates for UOI

Title: ANASTASIIA PIVTSAEVA & ANR. v. UNION OF INDIA & ANR.

Citation: 2024 LiveLaw (Del) 864

Click here to read order