Constitutional Rights of OCIs #6

On May 20th, 2022, Justices Abdul Nazeer and Krishna Murari ordered the Kerala government to allow State medical college candidates belonging to the Overseas Citizens of India (OCI) category to apply for Non-Residential Indian seats without providing proof of foreign residence. 

The Court delivered this Interim Order while hearing OCIs’ challenges to Section 7D of the Citizenship Act, 1955 (‘the Act’). The OCIs argue that Parliament had previously created the OCI category to effectively grant dual citizenship to them. However, s 7D takes away Indian citizenship rights from OCIs—leaving their status as residents at the unchecked discretion of the Executive. OCIs claim that since their citizenship status is at par with NRIs, they should have equivalent rights. 

However, this equivalency isn’t apparent to all government stakeholders. Currently, the Kerala government’s KEAM website, through which students can register for admissions to Engineering, Architecture, and Medical colleges in the state, allows OCIs to register for the NRI category. But, it  requires them to provide proof of foreign residence to apply for NRI seats. 

Advocate-on-Record Srishti Agnihotri, appearing for a group of OCI candidates, argued that the foreign residence requirement unfairly inconveniences the students. She stated that many of them have resided in India along with their families for all their lives. As such, they have no residential connection to a foreign country. They will have to rely on relatives living abroad for proof of foreign residence. Ms. Agnihotri argued that OCIs should be permitted to apply for NRI seats based only on their OCI certificates, without the requirement of foreign residence proof. 

Mr. Nishe Raje Shonker, appearing for the Kerala government, argued that removing the proof of residence requirement would increase competition for NRI seats, and reduce the chances of NRI students availing the seats. 

The Bench stated that waiving the requirement would only extend the benefits of NRI seats to a wider pool. Agreeing that some OCIs may have no connection to a foreign country, the Bench directed the Kerala government to remove the proof of residence requirement. 

The main challenge to s 7D of the Citizenship Act, 1995 remains pending. It will be heard in July, after the Court’s summer vacation.