Delhi High Court
Ligy Abraham vs Union Of India & Anr. on 11 September, 2017
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10499/2016 and CM Nos. 41196/2016 & 5559/2017
LIGY ABRAHAM ..... Petitioner
Through: Mr Robin David, Mr Dhiraj Philip
and Ms Sambha Rumnong,
Advocates.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr Sanjeev Narula and Mr Amit
Mahajan, CGSC with Mr Kunal Dutt,
Advocates.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 11.09.2017
VIBHU BAKHRU, J
1. The petitioner has filed the present petition being aggrieved by the
decision of the respondents to revoke the petitioner's status as an Overseas
Citizen of India (hereafter 'OCI') and proscribe her entry in this country. The
petitioner is residing in India since 2014.
2. The petitioner migrated to Houston, Texas, USA in May 2005 and
completed her undergraduate degree in Architecture (B. Arch) from Anna
University, Chennai, India in July 2006. Thereafter, in May 2010, the
petitioner completed her Masters in Construction Management from
University of Houston, in Houston, Texas, USA.
3. The petitioner was granted US Citizenship on 31.07.2012 and was
issued a US Passport bearing No. 497756027. Thereafter, the petitioner
applied for being considered as an Overseas Citizen of India. She was
registered as an Overseas Citizen of India on 12.03.2014 and was issued an
OCI Card bearing Registration No. A1539742 along with a life - long Indian
Visa.
4. The petitioner states that she was working as an Architect in India
since March 2014 and travelled to Houston, USA to meet her friends and
relatives in January 2016. She travelled back to India on 17.08.2016;
however, was not permitted to enter the country and was deported.
5. The petitioner contends that her parents are residing in Kerala and the
respondents' action of cancelling her OCI card and placing her name on the
'barred list' has effectively disabled her from attending to her parents in
India. The petitioner also impugns the respondents' actions as ill-informed
and violative of Article 14 of the Constitution of India.
6. The counter affidavit filed on behalf of the respondents indicated that
the Consul General of India (hereafter 'CGI') in Houston had issued a Look
Out Circular (hereafter 'LOC') on 27.01.2016 which was then forwarded to
the Ministry of Home Affairs, Foreign Division under the cover of the letter
dated 12.04.2016. It was alleged that certain nationals of
US/Zimbabwe/Canada were involved in Missionary activities in India and
their visas have been refused and cancelled. It is further stated that CGI at
Houston had also requested that the petitioner be blacklisted.
7. It is, therefore, apparent that the petitioner was denied entry pursuant
to the LOC issued by CGI at Houston, USA. By an order dated 17.07.2017,
this Court directed the respondents to produce all relevant documents on the
basis of which the respondent had taken a decision to blacklist the petitioner
and/or issue the LOC. Thereafter, on 08.08.2017, this Court was informed
that the files available with the respondents do not indicate any material
which would warrant issuing the LOC, except that there was a request made
by the CGI at Houston.
8. In the circumstances, this Court directed the respondents to produce
the file of the CGI at Houston. The said file has now been produced in
Court. Apart from mentioning that the petitioner is a part of an organisation,
which is engaged in Missionary activities, there is no material whatsoever,
which would not even remotely indicate that the petitioner had carried out
any unlawful activity in India.
9. Mr Sanjeev Narula, learned counsel appearing for the respondent also
drew the attention of this Court to a communication issued by Ministry of
External Affairs for withdrawal of blacklisting order.
10. This Court finds it very difficult to countenance the manner in which
the respondents have proceeded to issue the LOC without reference to the
petitioner. In the event, the respondents were desirous for withdrawing the
petitioner's OCI Card, the least that was expected of them was to give an
intimation of the same to the petitioner. In the present case, no steps were
taken to either issue a show cause notice or provide a hearing to the
petitioner. The petitioner was not even informed that her OCI Card had
been cancelled; she became aware of the same at the IGI Airport, when she
was not allowed to enter in this country.
11. The provisions relating to Overseas Citizenship of India were
introduced in the Citizenship Act, 1955 by the Citizenship (Amendment)
Act, 2003 by Act No. 6 of 2004 with effect from 03.12.2004. Section 7A of
the Citizenship Act, 1955 as introduced with effect from 03.12.2004 and as
amended by Act No. 32 of 2005, reads as under:-
"7A. Registration of Overseas Citizen of India
Cardholder.―(1) The Central Government may, subject to
such conditions, restrictions and manner as may be prescribed,
on an application made in this behalf, register as an Overseas
Citizen of India Cardholder―
(a) any person of full age and capacity,―
(i) who is a citizen of another country, but was a
citizen of India at the time of, or at any time after the
commencement of the Constitution; or
(ii) who is a citizen of another country, but was
eligible to become a citizen of India at the time of the
commencement of the Constitution; or
(iii) who is a citizen of another country, but
belonged to a territory that became part of India after the
15th day of August, 1947; or
(iv) who is a child or a grandchild or a great
grandchild of such a citizen; or
(b) a person, who is a minor child of a person mentioned
in clause (a); or
(c) a person, who is a minor child, and whose both
parents are citizens of India or one of the parents is a citizen of
India; or
(d) spouse of foreign origin of a citizen of India or spouse
of foreign origin of an Overseas Citizen of India Cardholder
registered under section 7A and whose marriage has been
registered and subsisted for a continuous period of not less
than two years immediately preceding the presentation of the
application under this section:
Provided that for the eligibility for registration as an
Overseas Citizen of India Cardholder, such spouse shall be
subjected to prior security clearance by a competent authority
in India:
Provided further that no person, who or either of whose
parents or grandparents or great grandparents is or had been a
citizen of Pakistan, Bangladesh or such other country as the
Central Government may, by notification in the Official
Gazette, specify, shall be eligible for registration as an
Overseas Citizen of India Cardholder under this sub-section.
(2) The Central Government may, by notification in the
Official Gazette, specify the date from which the existing
persons of Indian Origin Cardholders shall be deemed to be
Overseas Citizens of India Cardholders.
Explanation.―For the purposes of this sub-section, "Persons
of Indian Origin Cardholders" means the persons registered as
such under notification number 26011/4/98 F.I., dated the 19th
August, 2002, issued by the Central Government in this
regard.
(3) Notwithstanding anything contained in sub-section
(1), the Central Government may, if it is satisfied that special
circumstances exist, after recording the circumstances in
writing, register a person as an Overseas Citizen of India
Cardholder."
12. Section 7D provides for cancellation of the registration as Overseas
Citizen of India Cardholder and reads as under:-
"7D. Cancellation of registration as Overseas Citizen
of India Cardholder.―The Central Government may, by
order, cancel the registration granted under sub-section (1) of
section 7A, if it is satisfied that―
(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; or
(b) the Overseas Citizen of India Cardholder has
shown disaffection towards the Constitution, as by law
established; or
(c) the Overseas Citizen of India Cardholder has,
during any war in which India may be engaged, unlawfully
traded or communicated with an enemy or been engaged
in, or associated with, any business or commercial activity
that was to his knowledge carried on in such manner as to
assist an enemy in that war; or
(d) the Overseas Citizen of India Cardholder has,
within five years after registration under sub-section (1) of
section 7A, been sentenced to imprisonment for a term of
not less than two years; or
(e) it is necessary so to do in the interests of the
sovereignty and integrity of India, thesecurity of India,
friendly relations of India with any foreign country, or in
the interests of the general public; or
(f) the marriage of an Overseas Citizen of India
Cardholder, who has obtained such Card under clause (d)
of sub-section (1) of section 7A,―
(i) has been dissolved by a competent court of law
or otherwise; or
(ii) has not been dissolved but, during the
subsistence of such marriage, he has solemnised
marriage with any other person."
13. Section 7B of the Act provides for conferment of rights on the
Overseas Citizens of India.
14. It is apparent from a plain reading of Section 7D of the Citizenship
Act, 1955 that an OCI registration can be cancelled only in certain
circumstances as specified there in.
15. Concededly, in the present case, none of the conditions as specified
in Section 7D are met. Thus the Ministry has rightly called for restoration of
the petitioner as an Overseas Citizen Card Holder.
16. As noticed above, the manner in which the petitioner's Overseas
Citizenship had been cancelled, falls short of standards of fairness that is
expected of any State agency. Plainly, the decision to cancel the petitioner's
Overseas Citizenship as well as the manner in which the same was done is
arbitrary and unreasonable and falls foul of Article 14 of the Constitution of
India.
17. In view of the above circumstances, the present petition is allowed
with cost quantified at ₹25,000/-.
18. The respondents are directed to forthwith restore the petitioner's OCI
Card. The cost awarded, be paid within a period of two weeks from today.
The LOC issued against the petitioner is set aside and it is directed that the
name of the petitioner be removed from the 'black list' maintained by the
respondents.
19. The present petition and pending applications are disposed of with the
aforesaid directions.
VIBHU BAKHRU, J.
SEPTEMBER 11, 2017
RK
