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Synopsis

The Supreme Court has said the presence of the spouse of an applicant either physically or through the virtual mode is mandatory for effective consideration of the application for an Overseas Citizens of India Card.

A bench of Justices Hrishikesh Roy, Sudhanshu Dhulia and SVN Bhatti allowed an appeal filed by the Union government against the Delhi High Court's single as well as division bench's judgments which had held that insisting on producing the husband at the time of personal interview for the purpose was clearly arbitrary.

"If the procedure dispensing with the presence of the spouse for considering the respondent’s application is permitted to be adopted, it will firstly be a departure from the notified procedure. Moreover, the entire burden of verification would completely shift to the authorities. For the OCI card, it is for the applicant to satisfy the authorities in the manner prescribed, on the genuineness of her application," the bench said.

The apex court held that the division bench was unjustified in holding that mandating the physical presence of the husband is arbitrary. 

In the absence of any challenge to the provisions of the Citizenship Act 1955, the Visa Manual, administrative instructions, or the checklist, such observations of the High Court were unmerited, the bench added.

"We are of the view that the direction issued in the impugned judgment to dispense with the presence of the applicant’s spouse, has no legal basis. Moreover, apart from the physical/virtual presence of the spouse other conditions are also to be satisfied by an applicant as is provided under the Citizenship Act 1955, the checklist and the Visa Manual for which even a declaration by the husband may be necessary," the bench said.

The question arose out an application for the OCI card made by an Iranian citizen Bahareh Bakshi, who had married an Indian citizen in 2009 in Dubai but her relationship soured over the time and her husband left her in Bengaluru to live with his family in Goa.

She applied on the website for OCI Card under Section 7(1)(d) of the Citizenship Act,1955 and generated her application for an OCI card on the basis of her marriage, and went to submit it to the local FRRO in Bengaluru in 2020. However, the officials refused to accept the form stating that the presence of her husband was necessary for processing her application for registration. 

Upon her writ petition, the High Court said the object of the enquiry is to be satisfied that the application is genuine and not founded upon a false claim for marriage. There could be cases where the Indian spouse may die or go missing. In such situations, it may not be possible to produce the Indian spouse.

In its plea, the Union government said the checklist for considering an OCI card required both the spouses to be present for an interview with the authorities. The Visa Manual was also referred to in the course of the proceeding to argue that the presence (physical or virtual) of both the applicants is essential, it said.

The counsel for the respondent however contended on account of the estranged relationship with her husband, the Indian citizen spouse is not available to appear before the authorities either physically or by virtual mode in support of her application for OCI card. The woman also said since various legal proceedings are pending with the Indian husband, he is unlikely to appear before the authorities for it.

The court noted though OCI Card holders remain citizens of their country, they enjoy certain privileges such as multiple-entry lifelong visa for visiting India for any purpose, exemption from registrations with the FRRO and FRO, parity with Non Residential Indians (NRIs) in some aspects etc. 

"It is essential to note that the Central Government is empowered to register the foreign spouse of a citizen of India as an OCI holder “subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf”," the bench said.

The proviso to Clause 7A(1)(d) also provides for ‘a prior security clearance’ by the competent authority for eligibility, the court added.

The court also noted the relevant clause of the checklist issued for verification of applications seeking OCI category card would indicate that on the day of submission of application, the couple must be present. 

For appreciating the requirement of physical/virtual presence, the court also perused the Visa Manual issued by the Ministry of Home Affairs and the relevant Clauses in Chapter 21 of the Visa Manual.

A declaration was also required to be given that in case of death or divorce of the spouse, the OCI Card would be surrendered to the authorities.

During the personal interview of the applicant, the concerned Officer may put random questions to the foreign applicant and his/her spouse separately, to elicit information which may help in ascertaining the genuineness of the marital status of the applicant, the bench noted.

The respondent counsel also argued that the Visa Manual or even the checklist is only a delegated legislation and there is no such condition in Section 7A(d) of the Citizenship Act,1955 mandating an interview. 

"We are disinclined to accept this submission as Section 7A(1) specifically notes that the registration of OCI Card by the Central Government is ‘subject to such conditions, restrictions and manner as may be prescribed’. Therefore, the Act clearly allows for supplementary procedures, such as an interview as specified in the Visa Manual as well as the Checklist," the bench said.

In the absence of any challenge to the visa manual or the checklist, and ignoring the procedure in place, the bench opined the High Court in the impugned judgment erred in granting the relief of dispensing with the requirement of physical/virtual presence of the spouse. 

"This was done on the basis that there are other modes by which the concerned authority can satisfy themselves on the genuineness of the application," the bench said.

The court held that the High Court's judgments dispensing with the physical presence of the respondent’s spouse during the process of interview for consideration of her application for OCI Card are found to be unsustainable.

Referring to Section 7A(3) of the Citizenship Act,1955, the respondent's counsel also said her was a peculiar case where the marriage is subsisting and the wife has been abandoned. In a case of estrangement, the applicant would fall under the category of a ‘special circumstance’ as the rules are silent for such a category. 

On this, the bench said the present order will not come in the way of the central government to consider if any special circumstances exists for consideration of the respondent’s application. 

"It be open for the respondent to make good her case. However, such discretion is entirely left to the central government and we are not expressing any opinion on whether the respondent deserves such consideration or not," the bench said.