Delhi High Court: In a writ petition filed to challenge the decisions dated 27-07-2022 and 29-08-2022 passed by the Foreigners Regional Registration Office (‘FRRO’) (respondent 1) whereby the applications of the petitioners for registration as Overseas Citizens of India (‘OCI’) were closed, a Single Judge Bench of Sanjeev Narula, J. quashed the afore-mentioned decisions along with the speaking orders dated 12-01-2023 and directed the respondents to consider the OCI applications of the petitioners afresh and to take a decision within eight weeks.
Background
The Russian national (wife) (petitioner 1) had initiated legal action on behalf of herself and her 2-year-old minor son, through which, she sought judicial review of the above-mentioned administrative actions and contended that the decisions had adversely affected their legal rights.
The Russian national got married to an Indian citizen on 30-08-2019 as per the Hindu rites and customs. This marriage was registered under Section 13 of the Special Marriage Act, 1954. Thereafter, their son was born on 19-08-2021. The wife had been residing in Delhi with her husband and in-laws since her marriage and had fully embraced the Indian customs and traditions.
Due to her deep cultural and familial connections within the country, the wife, in accordance with Section 7-A of the Citizenship Act, 1955 (‘Citizenship Act’), initiated the process to secure OCI cards for herself and her son in December 2021. After all requisite documents were submitted and the necessary fees were paid, her husband passed away on 15-01-2022.
On 27-07-2022, the wife received an email from FRRO that mentioned the closure of her application for registration as an OCI without any explanation or specific reason for the decision. On 29-08-2022, a similar communication was also conveyed for the son’s application.
The wife took immediate steps to seek clarity from the authorities and on 31-08-2022, she initiated further correspondence by sending an email to FRRO to inquire about the specific reasons for the closure of the OCI applications. After getting no response, the wife filed a Review application under Section 15-A(1) of the Citizenship Act to seek a revaluation of the decisions. Despite a long wait, no reply was received, and since the expiration date of the petitioners’ visas was close, the present petition was filed.
The respondents contended that the wife was a foreign national who had an Indian spouse against whom a Look Out Circular (‘LOC’) had been issued by the Directorate of Enforcement (‘ED’) under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (‘PMLA Act’).
The respondents also contended that upon inquiry into the wife’s application, it was revealed that she had significant association with her late husband’s business and the ED had also issued an LOC against her.
Analysis and Decision
The Court noted that the respondent asserted that the wife had failed to meet the mandatory security clearance which was a prerequisite for OCI registration and it was found important to note that even though the original rejection letter did not indicate any reasoning for the rejection/closure of the OCI application, the respondents had issued two ‘speaking orders’ in terms of the review application filed by the petitioners which specified the grounds for the rejection.
The Court stated that the order related to the wife highlighted her previous employment in the company owned by her late husband which was under investigation by the ED for money laundering and that until the said investigation had concluded, her OCI application could not proceed further.
The Court noted that as per the governing rules, in case there was an outstanding LOC issued against a person, a No Objection Certificate (‘NOC’) was required to be furnished by the LOC originator before the visa of such person could be extended. Based on the inputs of ED, the visa for the son was extended till April 2025 but the extension of the wife’s visa was still under process.
The Assistant Director, ED had informed the respondents that a summons had been issued against the wife to appear before the ED, but she had allegedly evaded the summons and had been hampering the investigation.
The Court directed that since the wife had shown commitment by giving an undertaking before the Court to comply with the investigation, the respondents must re-evaluate her current visa status and request for extension. It was also directed that this reassessment shall consider her willingness to engage with the legal processes and her presence in India for her as well as her minor son’s welfare.
Further, the Court opined that there was no reason to keep the present petition pending and that the reasons outlined in the speaking orders for the rejection of the OCI applications could not withstand judicial scrutiny.
The Court stated that the reasons failed to demonstrate a legally sustainable basis for such significant adverse decisions affecting the rights and status of the petitioners. Consequently, the Court held that continuing to withhold OCI status from the petitioners was unreasonable and unjust.
The Court noted the arguments of the respondents stating that foreigners do not have a right to stay in the country indefinitely and that it is the sovereign power of the State to refuse or obstruct a foreigner from entering/staying in India in the interest of national security.
The Court acknowledged the executive’s prerogative in matters of national security but stated that such discretion could not be exercised arbitrarily and that the claims of national security must be backed by credible evidence.
The Court relied on Ex-Armymen’s Protection Services Pvt. Ltd. v. Union of India, (2014) 5 SCC 409 and stated that generally courts leave the matters of national security policy to the expertise of executives, however, the decisions taken by the state agencies are amenable to the reasonable standards of fairness.
Further, the Court opined that the proviso to Section 7A (1)(d) of the Citizenship Act did not get attracted to the wife’s case. The Court said that there was no basis/evidence to indicate that the wife was also under investigation by ED and the investigation into her late husband’s company did not per se disqualify her from OCI eligibility.
Further, the Court said that mere association or familial relationship with an accused, without concrete evidence of direct involvement in the alleged crime, 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.
The Court found it important to highlight a peculiar aspect which was the contradictory stand of the respondents in terms of whether the wife was to leave the country or not. It was stated that on one hand the wife had an LOC issued against her which would prevent her from leaving the country and on the other hand, the respondents had not favored the extension of her visa or the grant of OCI status.
Further, the Court analyzed the rejection of the OCI application of the minor son and said that there was no requirement for prior security clearance under Section 7A (1)(c) of the Citizenship Act which provided for OCI registration of a minor child of a citizen of India, and that the son met the eligibility criteria without any ambiguity.
Accordingly, the Court quashed the decisions dated 27-07-2022 and 29-08-2022 as well as the corresponding speaking orders dated 12-01-2023 and directed the respondents to consider the OCI application of the petitioners afresh to take a decision within eight weeks.
While allowing the writ petition, the Court also directed the respondents to consider the request of the wife for an extension of the visa afresh.
[Anastasiia Pivtsaeva v. Union of India, W.P.(C) 436 of 2023, Decided on 15-07-2024]
Advocates who appeared in this case :
For Petitioners — Advocate Tanveer Ahmad Mir, Advocate Ayush Jain, Advocate Tushar Thakur, Advocate Yashovardhan Upadhyay, Advocate Anushka Khaitan
For Respondents — SPC Satya Ranjan Swain, GP Rahul Kumar Sharma, Advocate Kautilya Birat
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