Hidden coils: Editorial on OCI rights and the ambiguity of the law

A directive from the Foreigners Regional Registration Office has directed the actor, Imran Khan, to leave India by October 28. Mr Khan, a citizen of the United States of America and the holder of the Overseas Citizen of India card, had participated in a protest against the alleged improprieties of the chief election commissioner in Mumbai. Subsequently, a complaint was filed against him to the police by a leader of the Bharatiya Janata Party, alleging that Mr Khan had violated the law. A Leave India Notice followed soon from the FRRO. The actor has moved the Bombay High Court challenging the order.

The above is the chronology of the events. What demands closer inspection is the State’s response to the rights of and the restrictions on the OCI fraternity. The OCI programme accords certain kinds of privilege on foreign nationals of Indian origin. These include multiple-entry visas granted for life, exemption from FRRO registration notwithstanding the duration of stay, along with some parity with Indians and non-resident Indians in rights to property, education and professions. The restrictions on OCI cardholders are revealing. A notification in 2021 makes it mandatory for them to seek clearance before pursuing research, journalism, some forms of employment as well as access to protected places. Significantly — and this is of importance in Mr Khan’s case — there is no specific provision in the law that debars OCI cardholders from participating in demonstrations. But what is also evident is that the law leaves grey areas that enable the State to regulate — restrain — the conduct of this constituency. Section 7(2)(c) and Section 29 of the Immigration and Foreigners Act, 2025 grant excessive discretion to the State to proscribe specific kinds of activity on the part of foreigners — OCI members are deemed as such since India does not recognise dual citizenship — even though political activity is not expressly identified as a threat. Interestingly, the judiciary’s response on such matters has been refreshing. In 2020, the Calcutta High Court had dismissed a Leave India notice to a Polish student who had participated in a rally against the Citizenship (Amendment) Act on the grounds that participation in a demonstration does not merit such a punitive response. At the heart of such contestations lies an embedded tension. As authoritarian governments cement their grip in democracies, rights envisioned as integral to the democratic compact, irrespective of who or who is not a citizen, are coming under strain.